Supreme Court of the State of New York, New York County, January 6, 2021
The within matter was filed on behalf of the decedent, Patrick O’Sullivan, based on his alleged exposure to asbestos over the course of his career as a mechanic at various service stations throughout the 1970s. In 2012, the decedent died as a result of lung cancer allegedly caused by his exposure to asbestos. At his deposition, the decedent testified that he worked on Nissan branded vehicles in the 1970s, but he could not remember whether the asbestos products in question were branded with the Nissan name. The decedent further testified that he used Nissan brakes on the Nissan vehicles. Defendant Nissan North America, Inc. (NNA) filed a motion for summary judgment based upon the plaintiffs’ failure to prove product(s) manufactured by NNA caused the decedent’s lung cancer.
“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 eliminate any material issues of fact from the case.” Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). A defendant seeking summary judgment in a products liability case involving asbestos must make a prima facie case that its product could not have contributed to the causation of the plaintiff’s injury. Reid v Georgia-Pacific Corp., 212 AD2d 462 (1st Dept 1995). The defendant must “unequivocally establish that its product could not have contributed to the causation of plaintiff’s injury’ for the court to grant summary judgment.” Matter of N.Y.C. Asbestos Litig., 122 AD3d 520 (1st Dept. 2014).
According to its motion, NNA did not begin distributing Nissan brand vehicles until after the decedent’s alleged time of exposure. NNA argued that the plaintiffs failed to establish that NNA sold or distributed Nissan brand vehicles at the time of the decedent’s alleged exposure to asbestos. Accordingly, the decedent could not have been exposed to asbestos in Nissan brand vehicles for which NNA is responsible. In support of their motion, NNA attached the affidavit of former Director of Product Safety, Environmental, Robert Kenji Yakushi. Mr. Yakushi stated that during the time period that the decedent testified to have worked on Nissan automobiles NNA had not yet begun to distribute Nissan brand vehicles and did not distribute Nissan branded vehicles until 1983.
The court found that the decedent’s timeline for his exposure to Nissan’s asbestos products was not feasible. Likewise, the court agreed that NNA established that Nissan vehicles did not exist in the United States in the 1970s and therefore could not have contributed to the causation of the decedent’s injury. Thus, NNA made a prima facie showing of entitlement to judgment as a matter of law and the burden shifted to the plaintiffs to raise an issue of fact.
In their opposition, the plaintiffs alleged that NNA failed to make a prima facie showing of entitlement to summary judgment because their motion is “based on gaps in testimony.” The plaintiffs argued that NNA’s counsel could have filled in these gaps by questioning the decedent at his deposition as to whether Nissan was the brand or the manufacturer of the vehicles and parts that he worked on in the 1970s. The court was not persuaded.
Here, the court found that the decedent was questioned about Nissan asbestos containing products, and the decedent clearly identified Nissan as the brand, which he had worked on during the alleged exposure period. Despite the decedent’s testimony that he worked with Nissan parts on Nissan vehicles, the court found that NNA demonstrated that Nissan brand vehicles were not in circulation during the time that the decedent testified to working on them.
The court further found that there was no gap in the testimony of the decedent since he was asked to identify any additional brands and models of vehicles he worked on but never mentioned any other names of vehicles distributed by NNA, which could have been in circulation at the alleged time of exposure. Thus, the plaintiffs’ opposition failed to raise an issue of fact and the court granted NNA’s motion.