The plaintiff developed mesothelioma and asserted asbestos exposure to valves from Fisher Controls International LLC through his work in various states, including New York. Fisher moved for summary judgment and dismissal of various counts if its summary judgment was denied. The court denied the summary judgment, but granted dismissal of certain counts because these were unopposed.
First, Fisher argued that the New York court lacked both general and specific jurisdiction, because it only learned of the plaintiff’s nine-month occupational history in New York when plaintiff was deposed. The court was not persuaded by this argument, because Fisher did not raise this issue until seven months after plaintiff was deposed. Fisher did not demonstrate why the court should depart from the plain language of New York’s jurisdictional statute, which was structured such that the jurisdiction issue is flushed out at the beginning of the case. The court stated: “Fisher asks ‘what should a defendant do when the jurisdictional defense does not arise until after the time for making a CPLR 3211 motion has expired and the answer has already been served?’… As to counsel’s question, it is for counsel to decide what a defendant should do to preserve a jurisdiction defense under the law.”
Second, Fisher was not entitled to summary judgment because it did not offer unequivocal evidence that its product could not have contributed to the plaintiff’s injury. In support of its motion Fisher submitted an affidavit stating Fisher never made or supplied flange gaskets, never recommended use of asbestos material for use with Fisher valves, and did not promote the use of Cranite gasket materials for use with its valves. Further, Fisher valves did not require the use of asbestos packing, Teflon was the most widely-used packing since the early 1960s, and all packing sold by Fisher was pre-sized. Fisher focused on the plaintiff’s work in the Brooklyn Navy Yard. The plaintiff countered with other affidavits from Fisher in other litigation, stating that Fisher’s manuals recommended asbestos gaskets, and that Fisher sold asbestos packing and gaskets. The plaintiff worked with valves, gaskets, and packing at multiple locations through 14 years; it was inappropriate to adopt Fisher’s “tunnel vision” and focus solely on plaintiff’s activities in New York with flange gaskets. “Issues of fact exist even where a defendant manufactures or sells non-asbestos products, along with asbestos products.”
Third, Fisher argued it had no duty to warn. In the asbestos context, manufacturers of a safe product have no duty to warn of another company’s asbestos-containing product where there is no evidence that the manufacturer had any active role, interest, or influence in the types of products to be used with its own product after it is placed into the stream of commerce. There is a duty if the manufacturer has a sufficiently significant interest, role, or influence in the type of component used with its product after it enters the stream of commerce. New York appellate courts have not squarely addressed the question of who bears the burden on summary judgment to demonstrate the defendant did not have a role with a “bare metal” product. Here, assuming that a Fisher “bare metal” product injured plaintiff, plaintiff met his burden to show that Fisher had a significant role in the selection of asbestos gaskets/packing with its valves.
The court dismissed the breach of warranty count as unopposed, market share liability claims, and conspiracy claims. The plaintiff did not support his arguments against dismissal of these claims.