Boiler Manufacturer Denied Summary Judgment Based on Plaintiff’s Contradictory Testimony on Product ID

In this NYCAL case, the plaintiff, Mark Ricci, claims secondhand exposure to asbestos from his father’s work with boilers, including boilers manufactured by defendant Cleaver-Brooks.  During the testimony of the plaintiff’s father, Aldo Ricci’s, he originally answered that he did not recall observing anyone working on a Cleaver-Brooks boiler. Later, during plaintiff’s counsel’s questioning, Aldo did identify Cleaver-Brooks. Based on the contradictory testimony, Cleaver-Brooks moved for summary judgment, arguing that Aldo’s identification of their product was prompted by the plaintiff’s counsel and should be disregarded. As such, it was their position that the plaintiff failed “to set forth any facts and conditions that from which the negligence of defendant and the causation of the accident by negligence may be reasonably inferred.”

The court denied the motion and held: “Cleaver-Brooks has failed to establish a prima facie case. It failed to proffer unequivocal evidence that its product could not have contributed to plaintiff’s injury.”  The court, in considering Aldo’s product identification against Cleaver-Brooks, went on to state that even had defendant met it’s burden, that plaintiff had created a question of fact for a jury to resolve and stated: “Aldo’s long career was in an industry where an engineer might reasonably be expected to come in contact with Cleaver-Brooks boilers (among others), and asbestos was admittedly a component in a number of unidentified Cleaver-Brooks boilers. Further, plaintiff has advanced no other theory to account for his contracting mesothelioma ‘an exceedingly rare disease … whose only known cause is the exposure to asbestos’ (Dollas citing O’Brien v National Gypsum Co., 944 F2d 69, 72 [2d Cir 1999]). Accordingly, plaintiff has raised issues of fact for trial.”

Read the full decision here.