Supreme Court of New York, New York County
In this NYCAL action, plaintiff Lorraine Sprague alleges take-home exposure to asbestos from laundering her husband’s clothing while he worked as an oiler/wiper and tugboat/marine engineer from the early 1960s until 1987. Following two fact witness depositions and submission of expert reports, defendant Fel-Pro moved for summary judgment. Relying on Cawein, the defendant asserted that the plaintiff failed to produce evidence of specific identification of Fel-Pro products in her husband’s area of exposure, and as such, could not establish proximate cause. Specifically, one fact witness testified that he recalled seeing Fel-Pro brands among several brands of gaskets at the worksite, and that cutting gaskets would “sometimes” create dust. However, the defendant asserted that the fact witness could not testify with certainty that the plaintiff’s husband came into contact with asbestos from the defendant’s products. Instead, he testified that “if [the gaskets] were in stock … we used them.” As such, the defendant argued that the fact witness’s testimony is speculative and conclusory, which is insufficient to create an issue of material fact.
In addition, the defendant argued that even if the fact witness’s testimony “could demonstrate that plaintiff’s husband worked with Fel-Pro gaskets, said exposure would have been below risk levels associates with mesothelioma.” In support, the defendant submitted a report of a certified industrial hygienist, who opined that any exposure to asbestos from the defendant’s gaskets “would have been far below cumulative lifetime ambient levels.” The defendant also contended that the plaintiff’s expert “offered no mean of calculating estimated respirable fiber release from Fel-Pro gaskets.”
In opposition, the plaintiff contended that the defendant had not met their initial burden of showing that the defendant’s products could not have contributed to the plaintiff’s injury. Citing Reid, the plaintiff set forth that “[a] plaintiff need not demonstrate the precise cause of his/her damages, but only facts and conditions from which defendant’s liability can be reasonably inferred.”
Justice Silvera agreed with the plaintiff’s contention and found that the defendant’s argument merely pointed to gaps in the plaintiff’s proofs. With regard to the fact witness’s testimony, the court set forth that “[the witness] remembered plaintiff’s husband working on Fel-Pro gaskets and that a lot of dust was produced from cutting the gaskets.” Further, the defendant did not provide evidence that their gaskets did not contain asbestos. As such, the court held that “Defendant has provided no evidence that their product did not create visible asbestos dust, which could have gotten onto [plaintiff’s husband’s] clothing and been inhaled by plaintiff at home for a span of over two decades.” With regard to the causation argument, the court found the defendant’s industrial hygiene expert was not “qualified to proffer an opinion about the cause of plaintiff’s disease.” Therefore, the court held that the defendant failed to meet its burden and denied its summary judgment motion.