Court: Supreme Court of New York, New York County
Defendant Perkins Engines Inc. filed motions for summary judgment in two actions, Frederick and Nankervis.
In Frederick, Perkins filed its motion based upon a lack of product identification and causation. In support of the product identification claim, Perkins relies upon the expert report of Certified Industrial Hygienist, Catherine E. Simmons, which states that “Perkins gaskets are associated only with Perkins diesel engines” and that she is “unaware that [Perkins] manufactured or supplied friction products including brakes and clutches.”
The court noted that Simmons lacked personal knowledge as to Perkins’ manufacturing and product history specific to plaintiff’s period of exposure, and did not review any materials to bolster Perkins’ history. Without additional evidence to establish that Perkins “did not manufacture any products or that such products could not have been available to” plaintiff, Perkins failed to meet its burden.
As to causation, the court noted that Perkins misstated plaintiff’s summary judgment burden as the standard outlined in Nemeth v. Brenntag. Plaintiff was not obligated to prove specific causation but rather to “raise a triable issue of fact concerning specific causation.” Plaintiff satisfied this burden through expert testimony stating that “exposure to Perkins products could have caused plaintiff’s illness.” Perkins again relied on Simmons’ expert report. The court pointed out that the studies cited to in the report involved gaskets that were not manufactured by Perkins. By failing to explain the similarities between the gaskets used in the studies and Perkins-manufactured gaskets, Perkins failed to provide that its products could not have contributed to Frederick’s disease and therefore failed to establish a lack of causation. Accordingly, the court denied Perkins’ motion for summary judgment.
In Nankervis, Perkins filed its motion on the basis that plaintiff failed to establish causation and Perkins established a prima facie case for lack of causation pursuant to Nemeth. In support of its motion, Perkins relied on the expert reports of Jennifer Sahmel, PhD, CIH, CSP, FAIHA, and Mark J. Utell, M.D. Plaintiff’s opposition relied on the report of Dr. Mark Ellis Ginsburg. As in Frederick, the court noted that Sahmel’s report cited to studies involving gaskets that were not manufactured by Perkins and failed to include any explanation of the similarities between the two products. In addition, the court found that Utell’s conclusion that plaintiff’s smoking increased his risk of developing lung cancer was “not dispositive of whether asbestos from Perkins products” contributed to causing his cancer. Accordingly, the court denied the motion for summary judgment.