In this case, the plaintiff, Mark Denison, claimed exposure to asbestos from numerous products while working at his father’s hardware store from 1964-65 to 1969, Dunkirk Radiator from 1972 to 1987, and from his own automotive repair business from 1980 to the early 1990s. Defendants Bird, Inc., Euclid-Hitachi Heavy Equipment, Inc., F.E. Myers, Oshkosh Corporation, and WT/HRC Corporation all moved for summary judgment.
In its ruling, the court highlighted that none of the moving defendants were identified in the plaintiffs’ answers to interrogatories. The court went on to state: “The plaintiff’s failure to identify defendants’ products in their answers to interrogatories shifts the burden to plaintiff to come forward with facts and conditions from which defendants’ liability reasonably can be inferred. (see Gorzka, supra, Matter of Eighth Jud. Dist. Asbestos Litig. [Heckel], 269 AD2d 749 [ 4th Dept, 2000] ; Lang v Crane Co., [ Sup Ct, Erie County , March 30, 2015, Chimes, J. Index No. I 2012-202 ]; Dickman v Trane U. S. Inc., [Sup. Ct, Erie County, September 16, 2010, Lane, J. Index No.2008-12697). However, plaintiffs are not required to show the precise causes of the damages sought, but, only required to show those facts and conditions, from which defendant’s liability can be reasonably inferred. (see Matter of Eighth Jud. Dist. Asbestos Litig. [Reynolds], 32 AD3d 1268 [2006]).”
In its motion, Bird argued that it made both asbestos and non-asbestos-containing roofing felt and the plaintiff testified to using the non-perforated felt, which was non-asbestos-containing. The court relied on the plaintiff’s testimony and business records to deny summary judgment. As the court held: “This testimony, along with the business records from Bird revealing that not all Bird’s asbestos-containing roofing felts were described as perforated and that little or no visible perforations were on its asbestos-containing felt, raises questions of fact. The motion for summary judgment is therefore denied.”
The court granted Myers motion, relying on the affidavit of its chief engineer and over 400 company records that demonstrated that Myers did not make jet pumps for use with wells that had asbestos components as claimed by the plaintiff. In its ruling, the court noted: “In opposition, plaintiffs rely solely on Mr. Denison’s deposition and trial testimony. However, his testimony is nothing more than speculation based on observations of fibers and particles that glittered. Plaintiffs have failed to sufficiently raise a triable issue of fact and defendant Myers’ motion is granted.”
WT/HRC had two products in the case, a cupola and cranes. It moved on behalf of both defendants and the court granted the motion regarding the cupola and denied the motion regarding the cranes. For the cupola, WT/HRC argued that it was not delivered to Dunkirk until 1975, which postdated the plaintiff’s relevant exposure, it did not sell refractory products, and only recommend that non-asbestos refractory product be used with its cupola. As the court held: “Plaintiffs’ opposition failed to show facts and conditions from which WT/HRC’s liability can be reasonably inferred. Mr. Denison offered nothing more than speculation that he used or was exposed to asbestos while working at the cupola, which is insufficient to sustain plaintiffs’ burden. WT/HRC’s motion with respect to the cupola is granted.” On the cranes, WT/HRC argued that it was not responsible for asbestos-containing replacement brakes or wiring and that while the crane’s wiring contained asbestos, the wiring on the cranes plaintiff worked on were not original. The court found the argument on the original wiring to be speculative and disagreed with the argument that WT/HRC was not responsible for replacement parts. As the court held: “This argument however has been clearly rejected in both Matter of New York City Asbestos Litig. [Konstantin/Dummitt], 121 AD3d 230 (1″ Dept, 2014) and Matter of Eighth Jud. Dist. Asbestos Litig. [Sunned, (Sup Ct, Erie County, March 15, 2013, Lane, J., Index No. 2010-12499) aff’d for reasons stated below 118 AD3d 1369 (4′ Dept 2014) lv granted 24 NY3d 907 (2014). There is no evidence or basis presented in this case to depart from precedent.”
Oshkosh’s motion was granted, with the court holding: “It is uncontested that plaintiffs’ only evidence of exposure to asbestos from an Oshkosh product, is his deposition testimony. As Oshkosh was not in the case at the time of the plaintiff’s deposition, this testimony is inadmissible against Oshkosh. (See CPLR 3117; Perkins v New York Racing Assn., 51 AD2d 585, 586([ rd Dept, 1976 ]).”
Euclid-Hitachi’s motion was based on its argument that the plaintiff testified to using Euclid brakes and clutches for on-road vehicles and that they only sold replacement brakes for off-road trucks. The court denied the motion stating “that in its answers to interrogatories filed in Potter v A. W Chesterton, an Eighth Judicial District case, Euclid-Hitachi admitted selling replacement parts for its heavy equipment (p.3 of Exhibit C of plaintiffs’ opposing affirmation) and that prior to 1980, the replacement parts, including clutch facings and brake linings, may have contained asbestos (id. at 14). That Euclid-Hitachi sold asbestos-containing brake linings was testified to in 2001 by Clarence E. Eckert, Euclid-Hitachi’s corporate representative in Hilman Stubbefield, a California case. Mr. Denison testified repeatedly about his use of Euclid’s parts and described how his work with these parts caused him to be exposed to asbestos.”