Supreme Court of New York, New York County
Plaintiffs brought the instant action alleging the decedent, Thomas Fahey, was exposed to asbestos from his work in a variety of ways including his work with transformers and electric panels. Specifically, it is alleged that the defendants’ electrical panels and transformers were insulated with asbestos materials or contained asbestos wrapped rope from about 1980 through 2015 while the decedent was employed as an apprentice and union electrician with the International Brotherhood of Electrical Workers, Local #3 from September of 1980 to August of 2015.
The decedent testified that throughout his career, he did not see any warnings and was not advised about any hazards related to asbestos defendants’ products, until he attended a class provided through his union sometime in the mid-2000’s and more recently from watching television.
The defendants moved for summary judgment pursuant to CPLR § 3212 dismissing the plaintiffs’ claims and all cross-claims. They alternatively moved for partial summary judgment on the plaintiffs’ claim for punitive damages. The defendants argued the decedent’s deposition testimony as to his failure to heed warnings related to his cigarette smoking, which were adequate as a matter of law, made their prima facie case on causation. They further argued the decedent’s deposition testimony established that he would have also ignored any warnings if they were placed on the defendants’ products.
The decedent testified as to his smoking history during the years 1978 through 2007, including that he tried to quit smoking on four or five different occasions for periods of up to two years after 1986. He stated that he used various smoking cessation devices, including Nicorette gum, before permanently quitting in 2007. The decedent stated that it was difficult to quit or change his smoking behavior after he had become addicted to nicotine. He did not recall whether there were warning labels on cigarette packages in the 1970s and he stated that he absolutely did not know smoking could cause lung cancer when he first started smoking. He also stated that he did not recall seeing advertisements in the early 1980s, but recalled seeing warnings on television much later.
The defendants relied on the decedent’s deposition testimony and cited to the Federal Cigarette Labeling & Advertising Act – Public Law 89-92, July 27,1965; the Public Health Cigarette Smoking Act of 1969-Public Law 91-222, April 1,1970; and the Comprehensive Smoking Education Act – Public Law 98-474, October 12,1984 to establish lack of causation based on the decedent’s failure to heed non-smoking warnings.
The plaintiff argued the decedent testified that he did not recall seeing warnings until just before he started trying to quit. They further argued the decedent did not intentionally fail to heed warning labels on cigarettes but had to fight his addiction to quit. The plaintiffs indicated that decedent testified he was not provided with asbestos warnings for the defendant’s products and did not know what he would have done if he had seen one. They argued that failure to heed a warning due to addiction does not show intent and that it is speculative to interpret decedent’s testimony as demonstrating intent, raising an issue of fact.
The court ruled that the defendants have not “unequivocally” established that there were warnings about asbestos on their products, or that the decedent would not intentionally heed the warnings if they had existed on their products. The evidence they presented to establish that their products could not have contributed to the causation of plaintiff’s injury” is speculative and there must be a credibility determination by a jury of the decedent’s testimony. The defendant fails to make a prima facie case on causation and there was no need to address plaintiffs’ arguments in opposition to this motion.
Turning to the issue of dismissing punitive damages, the court found the defendants arguments that the plaintiffs’ punitive damages claims should be dismissed pursuant to CMO § XXIV(A) to be unpersuasive. The plaintiffs’ case had been assigned to two different trial judges before the June 21, 2017 CMO became effective, but the case had not yet been “put on the trial calendar” by the any of the assigned trial judges. This case was not assigned a trial date prior to June 2, 2020 and CMO § XXIV(A) does not apply.
Therefore, the defendants’ motion for summary judgment dismissing the complaint and all cross-claims asserted against it, alternatively for partial summary judgment dismissing the plaintiffs’ claims for punitive damages was denied.