Barawa v. Acker Drill Co. (2013)

Our plain-English summary of Barawa v. Acker Drill Co. (New York Supreme Court, December 3, 2013).

Robert Burawa was diagnosed with mesothelioma in June 2012 and died in January 2013. He and his wife Deborah sued several companies, including Ford Motor Company, over asbestos exposure during more than twenty years of automotive and marine repair work. He began helping at his father's Queens repair shop, Bay Towing, as a child and later worked on clutches, brakes and marine engines. He testified he handled new and old clutches in Ford and other cars and scraped Victor head gaskets off marine engines, including Ford engines. Ford moved for summary judgment, arguing there was no proof he was exposed to asbestos from a Ford product and that it was not liable for parts made by outside suppliers. The court denied the motion. Ford documents showed it bought asbestos clutches and head gaskets from suppliers, so a jury could infer he worked with original Ford parts. Ford's affidavit, filed with its reply papers and lacking documents, did not carry its burden. The wife's unopposed loss of consortium claim was dismissed.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court
• Decided: December 3, 2013
• Citation: 2013 NY Slip Op 33034(U)
• Docket: Docket No. 190272/12, Motion Seq. No. 03
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied Ford Motor Company's motion for summary judgment except for the unopposed loss of consortium claim, which was dismissed; plaintiffs largely prevailed.

What the court held. Plaintiff's testimony of exposure over twenty-plus years to new and old clutches and head gaskets, with documents showing Ford sold asbestos-containing components from suppliers, lets a jury reasonably infer exposure to original Ford parts. An unsupported affidavit first submitted in reply cannot meet the defendant's burden.

Issues decided: The Bare-Metal Defense, Loss of Consortium, Failure to Warn, Product Identification.

The people and their exposure

• Robert Burawa: mesothelioma; died

Who	Work	Where	When	Products
Robert Burawa	automotive repair worker replacing clutches and brakes (auto mechanics and brake work)	Bay Towing, Queens, New York	early 1950s onward	brakes, clutches and friction materials, BorgWarner clutch, Ford, Chevrolet and Dodge passenger car clutches
Robert Burawa	marine engine repair and rebuilding (auto mechanics and brake work)	Bay Towing, Queens, New York	1970 onward	gaskets and packing, Victor head gaskets, Ford marine engines

The defendants

• Ford Motor Company (manufacturer)
• Acker Drill Company

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Burawa v. Acker Drill Co. (March 31, 2014). The trial court denied Electrolux Home Products' motion for summary judgment, leaving plaintiffs' claims over Hercules engine blocks to proceed.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2013 NY Slip Op 33034(U)

ROBERT BRUCE BARAWA and DEBORAH ANN BURAWA, Plaintiffs,

v.

ACKER DRILL COMPANY, etal., Defendants.

Docket No. 190272/12, Motion Seq. No. 03.

December 2, 2013.

Filed December 3, 2013.

Supreme Court, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge.

It is ordered that this motion is decided in accordance with the memorandum decision dated 12-2-13. In this asbestos personal injury action, defendant Ford Motor Company ("Ford") moves pursuant to CPLR § 3212 for summary judgment dismissing the complaint and all cross-claims asserted against it on the ground that there is no material issue of fact whether plaintiff Robert Barawa was exposed to asbestos fibers released from a product manufactured, distributed, or sold by Ford. Plaintiffs argue that summary judgment is inappropriate because Ford's products included numerous asbestos-containing components manufactured by third-party suppliers.[1]

Plaintiff Robert Burawa was diagnosed with mesothelioma on June 4, 2012. He died on January 21, 2013. Prior to his death, Mr. Burawa and his wife Deborah Burawa commenced this action to recover for personal injuries caused by Mr. Burawa's exposure to asbestos-containing products over the course of more than twenty years during which he performed automotive and marine repairs.

Mr. Burawa was deposed on October 5, 2012 and November 19, 2012.[2] He testified that during the early 1950's when he was 8-10 years old he began assisting at his father's Queens, New York repair shop, Bay Towing. Mr. Burawa worked at the shop full-time until he was 25 when he became a drilling operator at a paper mill. He continued to work at the shop part-time thereafter. Brake jobs, clutch jobs, and exhaust work made up a majority of Bay Towing's auto repair business. In this regard, Mr. Burawa testified that he was exposed to asbestos while replacing clutches on Ford, Chevrolet, and Dodge passenger cars (Deposition pp. 68, 165):

Q. Do you believe you may have been exposed to asbestos as a result of your helping to prep a vehicle for clutch work?

A. Yes, because I would handle that stuff. Again, they would put it in, but I would always handle that type of thing.

Q. When you say "that stuff," what are you talking about?

A. The clutch plate, the pressure plate, the throw-out bearing.

Q. Would you be exposed to asbestos as a result of the removal of an old clutch?

A. I would.

Q. And from the installation of a new clutch?

A. Yes, because I handled all of that.

* * * *

Q. Do you remember who manufactured any of the vehicles that you installed a BorgWarner clutch on while at Bay Towing?

A. Yes, Chevrolets, Fords, Dodges.

By 1970, marine repairs had become the vast majority of Bay Towing's business. Mr. Burawa testified that he rebuilt engines and salvaged junk engines for spare parts and was exposed to asbestos from scraping Victor-brand head gaskets off of marine engines manufactured by Ford, Chrysler, and Chevrolet, among others (Deposition pp. 81-82, 188): Q. Going back to Bay Towing, is there any other way that you believe you were exposed to asbestos-

containing materials as a result of working on the marine engines?

A. Gaskets.

Q. Do you recall the names of any of the engine manufacturers? . . .

A. You had Chris-Craft. You had Ford. You had Chrysler. . . .

* * * *

Q. Tell me a little bit about the process for which you removed the Victor gaskets? What did you do. A. If they were really, really froze on, you would scrape as much as you possibly could because sometimes they were stuck to the head and the block, so half of it will come apart as you're taking it apart. After you did that, if it was really, really rough, we had what we call a porter cable. It runs a wire wheel, all flexible. If it was very rough, then you would want to use that. That was more protective of the motor than if you were to dig in hard with a scraper and put a notch of something in the steel.

The movant on a summary judgment motion must establish its defense sufficiently to warrant a court's directing judgment in its favor as a matter of law by demonstrating the absence of any material issue of fact. Zuckerman v City of New York, 49 NY2d 557, 562 (1980). In asbestos-related litigation, should the moving defendant establish, prima facie, its entitlement to summary judgment, the plaintiff must then demonstrate that there was actual exposure to asbestos fibers released from the defendant's product. Cawein v Flintkote Co., 203 AD2d 105, 106 (1st Dept 1994). While the plaintiff need only show "facts and conditions from which the defendant's liability may be reasonably inferred," (Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 [1st Dept 1995]), the plaintiff cannot rely on conjecture or speculation. Roimesher v Colgate Scaffolding, 77 AD3d 425, 426 (1st Dept 2010). Should the moving party fail to present a prima facie case, the court need not consider the sufficiency of the opposing papers. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985).

The documentary evidence corroborates Mr. Burawa's testimony that Ford sold passenger cars with several asbestos-based components, including clutches, and that Ford sold asbestos-containing clutches as replacement parts.[3] A 1977 Ford memorandum provides that "Ford is essentially out of the asbestos product manufacturing business" but that "[a] significant number of key components containing asbestos are however purchased from outside suppliers." The memorandum notes that these suppliers' inability to meet OSHA regulations would present "a serious supply problem for Ford."[4] In fact, testimony from a former Borg-Warner employee suggests that Ford was a major purchaser of Borg Warner's asbestos clutches during the 1960's and 1970's.[5] With respect to Ford's marine engine division, a Ford document entitled "Suppliers of Asbestos-Containing Materials" confirms that Ford purchased its head gaskets from Victor, among others.[6]

Ford argues that it cannot be held liable for any non-original asbestos-components in its vehicles and automobiles, and because Mr. Burawa did not know the service history of the engines on which he worked it would be speculative to assume they contained original parts. However, Mr. Burawa's testimony that he was exposed to asbestos over the course of twenty-plus years from both new and old clutches is sufficient evidence from which a jury could reasonably infer that he worked with and was exposed to asbestos from Borg-Warner clutches original to Ford vehicles. Similarly, Ford has given this court no reason to assume that the regular maintenance of Ford marine engines required the removal and replacement of head gaskets at any point in time. There is no evidence on this motion that the Ford marine engines Mr. Burawa salvaged could not have included their original parts making it reasonable to infer that some of the head gaskets on the salvaged Ford marine enginers were original.

Ford's reply papers purport to establish that it had no duty to warn against asbestos-containing products that were manufactured by third-party suppliers. While in general the court will not even consider arguments made for the first time in reply papers, Azzopardi v American Blower Corp., 192 AD2d 453, 454 (1st Dept 2006), it is notable that Ford's only supporting proof in this regard is an affidavit by a Ford Design Analysis Engineer that lacks any documentary support.[7] Such unsupported, uncross-examined evidence cannot satisfy the defendant's burden (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Republic Nat. Bank of New York v Luis Winston, Inc., 107 AD2d 581, 582 [1st Dept 1985]), particularly in light of the fact that it is submitted for the first time in reply. See Batista v Santiago, 25 AD3d 326, 341 (1st Dept 2006).

Accordingly, it is hereby

ORDERED that Ford Motor Company's motion for summary judgment is granted only with respect to plaintiffs' eleventh cause of action for loss of consortium, and is otherwise denied; and it is further

ORDERED that plaintiffs eleventh cause of action for loss of consortium as against Ford is hereby severed and dismissed in its entirety; and it is further

ORDERED that Ford's motion for summary judgment is otherwise denied in its entirety; and it is further The Clerk of the Court is directed to enter judgment accordingly

This constitutes the decision and order of the court.

[1] Plaintiffs do not oppose that branch of Ford's motion which seeks dismissal of plaintiff Deborah Burawa's loss of consortium claim. Accordingly, Ford's motion is granted in that respect only.

[2] Copies of his deposition transcripts are submitted as defendant's exhibit F ("Deposition").

[3] Plaintiffs' exhibit B, Attachment I(j).

[4] Plaintiffs' exhibit E.

[5] Plaintiffs' exhibit C, pp. 23-33.

[6] Plaintiffs' exhibit G.

[7] The affidavit, sworn to September 18, 2013, is submitted as exhibit B to Ford's reply affirmation. The affiant states from his "personal knowledge based upon the course of my employment with Ford, my review of Ford documents, including historical data, and communications with current and former Ford employees, Ford has never designed or manufactured any asbestos-containing friction components. . . Ford never required or directed its suppliers to use asbestos in the design and manufacture of those component parts" and that "Ford has never had any control over the material composition of those parts designed, manufactured and supplied by aftermarket (non-Ford brand) manufacturers." Id. ¶¶ 9, 10.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites