Plaintiff-Decedent William Holzworth filed suit against various defendants in the New York Supreme Court on July 9, 2012 alleging personal injuries pursuant to his diagnosis of mesothelioma allegedly caused by his occupational exposure to asbestos. Specifically, Holzworth alleged exposure to asbestos-containing products during this employment, both as a sonarman serving in the U.S. Navy between 1952 and 1955, and as a construction and project manager between 1963 and 2007. The defendants removed this action to the U.S. District Court for the Southern District of New York on August 9, 2012 pursuant to 28 U.S.C. § 1442(a)(1), which provides for federal jurisdiction in cases involving persons acting under the direction of a federal officer.
During the discovery deposition, Holzworth testified that he encountered one Burnham product while cleaning and rebuilding a fire-damaged house in New Jersey. Holzworth initially identified the product as a Burnham heater, but on cross-examination, he clarified that the pump connected to the heater, and not the heater itself, said “Burnham.” A metal jacket encased the heater with insulation that Holzworth believed to be asbestos. Holzworth also observed “asbestos-wrapped pipes” connected to the top of the heater, which were wrapped in “white material,” to which he assumed to be asbestos. Holzworth personally dismantled the heater and the pump connected to it, dragged them out of the house, and personally handled the white material from the inside of the metal jacket and the top of the heater. Further, he swept up the debris from the heater, which he admitted was mixed with the general mess produced by the fire. The total removal of this Burnham product took between one and three hours.
Burnham moved for summary judgment on March 22, 2016, asserting that New Jersey law is applicable and that there is no genuine dispute as to any material fact so that (1) the plaintiff failed to establish that the heater with its allegedly asbestos-containing insulation was manufactured by Burnham and, in any event, (2) Holzworth’s single exposure of one to three hours was not a substantial factor causing his illness. The plaintiff did not oppose this motion.
In providing a decision and analysis to this motion, the court emphasized when a summary judgment motion is not opposed, the motion is not granted automatically. The curt must examine the moving party’s submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial. The court must further determine whether any material facts are genuinely disputed in the record presented on the motion, then assure itself that the facts as to which there is no genuine dispute show that the moving party is entitled to a judgment as a matter of law. If the evidence submitted in support of the motion does not meet the movant’s burden, or if the undisputed facts do not show that the movant is entitled to judgment as a matter of law, then summary judgment must be denied even if no opposing evidence is presented.
After reviewing Burnham’s motion for summary judgment, this court provided analysis as to whether New York or New Jersey law applies, and whether exposure to defendant’s product proximately caused Holzworth’s injuries. A federal court sitting in diversity in New York applies New York choice of law rules. New York’s choice of law rules direct the court to consider first whether an actual conflict exists between the laws of the applicable jurisdictions. If so, the court conducts an interest’s analysis, which applies the law of the jurisdiction with the greatest interest in the litigation.
Under both New York and New Jersey law, a plaintiff seeking to recover in tort for asbestos exposure on a theory of negligence, strict liability, or failure to warn must prove that exposure to the defendant’s product proximately caused his injuries. New York and New Jersey both require a proximate cause to be “more likely than not . . . a substantial factor” in causing the illness. [Citation Omitted]. In New York, the plaintiff bears the burden of establishing sufficient exposure to a substance to cause the claimed adverse health effect. At a minimum, . . . there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels that are known to cause the kind of harm that the plaintiff claims to have suffered. [Citation Omitted]. Similarly, New Jersey requires the plaintiff to support a reasonable inference of substantial causation from circumstantial evidence[ with] evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked. [Citation Omitted].
In this choice of law analysis, courts have disagreed over whether New York’s and New Jersey’s substantial factor tests actually conflict. However, this Federal Court concluded it did not need to determine whether an actual conflict existed here because, no matter which test applied, the plaintiff had failed to meet the burden of establishing that Holzworth was exposed to harmful levels of asbestos from a Burnham product.
Accordingly, this court ultimately concluded, in viewing the record in the light most favorable to the plaintiff, at a maximum, Holzworth was exposed to a Burnham heater and pump containing asbestos for three hours on one day in a 55 year career of exposure. There was nothing in the record that a factfinder could rely on to conclude that this sort of de minimis exposure to a Burnham product rose to a level known to cause the type of harm that Holzworth suffered (mesothelioma). Burnham’s motion for summary judgment was granted on all counts.