Plaintiff Edith Niedert alleged that she developed lung cancer as a result of her exposure to asbestos from laundering the clothing of her husband, Paul Niedert. From 1956 to 1993, Mr. Niedert was employed as a plumber and steamfitter, and was responsible for removing and installing Goodyear gaskets and gasket-containing materials. The plaintiff was diagnosed with lung cancer on July 19, 2017.
In a motion for summary judgment, Goodyear argued that the plaintiff’s exposure to asbestos from laundering her husband’s clothing was “so insignificant that it did not contribute or cause [her] lung cancer.” Rather, the plaintiff’s lung cancer was caused by her own smoking history.
According to CPLR 3212(b), a motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” In addition, “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” “The moving party’s ‘[f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers.’”
Goodyear relied on industrial hygienist John Spencer in concluding that the plaintiff’s “para-occupational exposure to asbestos was insignificant to cause Plaintiff’s illness.” According to Mr. Spencer, “[t]he airborne asbestos concentrations for a person that handles the clothes of a person who works with asbestos are 0.2% to 1.4% of the daily 8-hr [time-weighted average] of the worker.” The court found that Goodyear failed to submit a study showing the plaintiff’s specific exposure levels and instead relied on Mr. Spencer’s conclusions, which were based only on “dose reconstruction.”
In addition, Goodyear’s reliance on pulmonologist, Dr. Robert Sussman’s opinion that “smoking is far and away the greatest risk for the development of lung cancer, accounting for 87% of all lung cancers[,]” failed to refute that asbestos is capable of causing disease. Furthermore, Dr. Sussman’s opinion that asbestos exposure is only a risk factor for lung cancer when asbestosis is also present is in conflict with Dr. Steven Markowitz’s article recognizing asbestos as a “human lung carcinogen” and presents a question of fact for the jury.
Accordingly, the court denied Goodyear’s motion for summary judgment.
Read the full decision here.