In a February 22, 2016 decision, the Honorable Peter H. Moulton, J.S.C. of the Supreme Court of the State of New York, New York County denied the defendant’s motion for summary judgment in a case where the plaintiff-decedent was allegedly exposed to asbestos during a lengthy career as a longshoreman on at certain New York City piers. During the pertinent period, the moving defendant was alleged to be the manufacturer of two asbestos-containing products (i.e., a pelletized product and a phenolic molding compound). The plaintiff alleged direct and bystander exposure to the aforementioned products arising from certain bags he allegedly came in contact with, or was in proximity to, in and around the piers during his employment as a longshoreman. The defendant moved for summary judgment, arguing, among other things, that there was a “lack of product identification and [a] lack of any evidence or expert opinion that exposure to [the defendant’s] product caused [plaintiff-decedent’s] illness and death.” Specifically, the defendant pointed out, among other things, that neither the plaintiff-decedent, nor his co-worker, specifically identified the defendant’s bags by name at the job sites at issue.
The court, however, determined that the defendant “failed to [meet] its burden to demonstrate that [its products] ‘could not have contributed to the causation of [plaintiff-decedent’s] injury.’” Here, the court outlined several factors in coming to its determination. It appears that the court relied on an exhibit that purportedly suggested that the defendant was “the only source of [the] pelletized” product at a certain point during the pertinent time period. Further, and while acknowledging that there was no testimony specifically identifying the defendant’s product on the bags at issue at the jobsite at issue, the court pointed to evidence that the defendant purportedly shipped similar products to a company in close proximity to one of the piers at issue during the time frame that plaintiff-decedent worked there. These facts, along with other circumstantial evidence outlined by the court, were sufficient in the court’s view to deny summary judgment.