Plaintiff’s Failure to Establish Exposure to Specific Products Leads to Grant of Summary Judgment for Roofing Defendants Supreme Court of New York, Erie County, September 22, 2019
NEW YORK – The plaintiff, Darlene DiNatale, filed suit against the defendants, Bird Incorporated and Certainteed Corporation, alleging she developed peritoneal mesothelioma as a result of exposure to asbestos in which Bird and Certainteed were liable. Specifically, she claimed that she was exposed to asbestos from cleaning her father’s office. The plaintiff’s father worked as a home improvement contractor for Fillmore Construction. She also alleged that she was exposed to asbestos through the dust that came off of her father’s work clothes. Bird and Certainteed moved for summary judgment arguing that:
- The products to which the plaintiff claimed exposure did not contain asbestos
- Even if they contained asbestos, the plaintiff failed to put forth evidence that she was exposed to the defendants’ particular products.
The defendants’ motions for summary judgment were supported with affidavits attesting as to such. The plaintiff filed an opposition with her own affidavits in an effort to create an issue of fact. She also relied upon deposition testimony of Michael Campanella, a salesman who worked for her father. He described the roofing materials that were present at Fillmore Construction and added the details regarding cleaning up of dust. He further testified that they used roofing materials made by Bird (70 percent), Certainteed (20 percent) and GAF (10 percent). The plaintiff also relied on the testimony of Charles Stegura, another former Fillmore Construction worker. He testified that the word asbestos “used to be right on the packages” of Bird roofing shingles observed at Fillmore Construction.
The court reminded the standard for summary judgment in asbestos litigation. “A defendant must present admissible evidence showing that the complaint has no merit…” Additionally, the defendant must put forth a prima facie case that it could not have “contributed to the causation of decedent’s illness.” The court found the defendants met their burden and concluded that the plaintiff failed to offer admissible evidence that the plaintiff was exposed to the defendants’ products. The plaintiff’s argument that the dust noted in the office at Fillmore Construction or from the plaintiff’s clothes was from the defendants’ products was merely speculation, according to the court. Consequently, summary judgment was granted.
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