Even Applying Relaxed Product Identification Standards of New York Law, Plaintiff Fails to Establish Exposure to Five of Six Defendants Moving for Summary Judgment

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The decedent, a lifetime electrician, passed away in 2014 of lung cancer. Prior to passing, he filed a lawsuit for asbestos exposure against numerous manufacturers.  Six defendants filed motions for summary judgment arguing lack of exposure — Rockwell Automation (Allen-Bradley); BW/IP International (Byron Jackson); Air & Liquid Systems (Buffalo); Gardner Denver; Schneider Electric (Square D); and Warren Pumps.  The court granted all motions, except that of Allen-Bradley.

The decedent claimed exposure to Warren pumps while serving as a civilian employee on board the U.S.S. Constellation.  No testimony identified Warren pumps, but the plaintiff produced historical ship records for this ship identifying Warren pumps in the engine room. Regarding Buffalo, Byron Jackson, and Gardner Denver, no testimony identified Buffalo as the manufacturer of pumps on the two ships worked on by the decedent. After the close of discovery, the plaintiff produced one ship record identifying a Byron Jackson pump on board the U.S.S. Constellation, and one ship record identifying Gardner Denver pumps on the U.S.S. Lake Champlain, another ship on which the decedent worked.  The decedent identified Square D products during the course of his work as an electrician and further identified Allen-Bradley products.

To establish a claim for liability under New York law, the plaintiff must prove exposure to the defendant’s merchandise and that this exposure was more likely than not a substantial factor in his injury. Circumstantial evidence alone may suffice, but the plaintiff must show some circumstantial evidence that he was at the approximate time and place during which the defendants’ products were used. Certain defendants also argued that the plaintiff’s claims against them arose under maritime law.

Summary judgment was granted as to Warren.  Evidence produced by the plaintiff identifying Warren after the close of discovery was not considered by the court because:  (1) the plaintiff provided no explanation for the failure to disclose; (2) the evidence was important, yet substantially prejudicial, to Warren, and (3) while a continuance was possible, to reopen discovery after its initial conclusion two years ago constituted an unwarranted delay.  Further, although the plaintiff’s claims arose under New York, not maritime, law, this was irrelevant because the plaintiff’s claims against Warren failed under both.

Summary judgment was likewise granted to Square D. Although the plaintiff adequately described the Square D products at issue, “Balcerzak was simply unable to connect his exposure to any particular time, place, or employer, repeatedly speaking in terms of what ‘could be’ and linking it with ‘one or all’ of his many employers…This inexactitude far exceeds the leeway afforded asbestos plaintiffs under the law.” Further, the plaintiff had no co-worker testimony to fill in any gaps.

Allen-Bradley’s summary judgment was denied because Allen-Bradley did not argue that the plaintiff fell short of alleging a sufficient connection of its products to any time, place, or employer. The court also analyzed whether genuine issues of material facts were raised with respect to specific Allen-Bradley products.

Summary judgments for Buffalo, Byron Jackson, and Gardner Denver were unopposed and granted.

Read the full decision here.