Caligiuri v. AO Smith Corp. (N.Y. Sup. Ct., Jan. 8, 2024)

Our plain-English summary of Caligiuri v. AO Smith Corp. (New York Supreme Court, January 8, 2024).

Mario Caligiuri and his wife Susan sued a number of companies in New York County, including Olympic Glove & Safety Co., Inc. Mr. Caligiuri has mesothelioma. He claimed that he was exposed to asbestos in Olympic-brand gloves that he used while working as a welder in the 1970s. Olympic moved for summary judgment, arguing that the exposure was too small to cause illness. It supported the motion with an industrial hygienist's report. The plaintiffs responded that he used the gloves often and for many years, and they offered conflicting expert opinions on exposure and causation. They also noted that Olympic had no medical expert and did not dispute that it sold asbestos-containing gloves from about the 1920s to the 1980s. The court denied the motion. It said Olympic had to affirmatively prove that its gloves could not have contributed to the illness. Its hygienist opinion, with no medical causation expert, did not do that. The competing expert evidence raised fact questions.

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: January 8, 2024
• Citation: 2024 NY Slip Op 30071(U)
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The trial court denied defendant Olympic Glove & Safety Co.'s motion for summary judgment, so plaintiffs Mario and Susan Caligiuri's claims against Olympic continue.

What the court held. A defendant seeking summary judgment in an asbestos case must affirmatively prove as a matter of law that its product could not have contributed to the plaintiff's illness; an industrial hygienist's exposure opinion without medical causation evidence does not meet that burden, and competing expert evidence raises a fact question.

Issues decided: Causation, Expert Testimony, Product Identification.

The people and their exposure

• Mario Caligiuri: mesothelioma

The defendants

• Olympic Glove & Safety Co., Inc. (manufacturer)

Other decisions in this case

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

• Caligiuri v. AO Smith Corp. (January 9, 2024). The trial court denied defendant QCP, Inc. f/k/a Bakers Pride Oven Company's motion for summary judgment, so plaintiffs Mario and Susan Caligiuri's claims against it continue.
• Caligiuri v. AO Smith Corp. (February 9, 2024). The court denied defendant QCP, Inc. f/k/a Bakers Pride Oven Company's motion to preclude plaintiffs' causation experts Drs. Moline, Frank and Zhang, so plaintiffs prevailed on the motion.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Sason v. Dykes Lumber Co., Inc. (New York Supreme Court, Appellate Division, 1st Dept., 2023). The Appellate Division affirmed the denial of Dykes Lumber Company's summary judgment motion, so plaintiff Raphael Sason's claims against Dykes Lumber continue.
• Reid v. Georgia-Pac. Corp. (New York Supreme Court, Appellate Division, 1st Dept., 1995). The Appellate Division affirmed the denial of Rapid-American Corporation's motion for summary judgment, so plaintiff Kenneth Reid's claim against it continues.

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.

2024 NY Slip Op 30071(U)

MARIO CALIGIURI, SUSAN CALIGIURI, Plaintiff,

v.

A.O. SMITH CORPORATION, AERCO INTERNATIONAL, INC., AII ACQUISITION LLC, BAKERS

PRIDE OVEN CO., INC., BAKERS PRIDE OVEN CO. LLC, BMCE INC., BRYAN STEAM LLC,

BURNHAM LLC, CARRIER CORPORATION, CRANE CO., DAV CORPORATION, DAVID

FABRICATORS OF NEW YORK, INC., ECR INTERNATIONAL, INC., FORT KENT HOLDINGS INC.,

FOSTER WHEELER ENERGY CORPORATION, GENERAL ELECTRIC COMPANY, GREENE, TWEED

& CO., INC., INDUSTRIAL HOLDINGS CORPORATION, INTERNATIONAL COMFORT PRODUCTS

LLC, ITT LLC, JOHN CRANE, INC., KOHLER COMPANY, LENNOX INDUSTRIES, INC., MORSE TEC

LLC, OLYMPIC GLOVE & SAFETY CO., INC., PARAMOUNT GLOBAL, QCP, INC., UNION CARBIDE

CORPORATION, UTICA BOILERS, INC., WEIL-McLAIN INC., JOHN DOE 1 THROUGH JOHN DOE 75

Defendant.

Index No. 190130/222, Motion Seq. No. 005.

Motion October 24, 2023.

January 8, 2024.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

It is ordered that the instant motion for summary judgment seeking an order to dismiss is denied for the reasons set forth below.

Here, defendant Olympic Glove & Safety Co., Inc. ("Olympic") moves for summary judgment seeking to dismiss this action on the grounds that plaintiff's exposure to asbestos from Olympic-brand gloves during the course of his work as a welder in the 1970s was of insufficient quantity to have caused illness. Defendant Olympic offers an expert report in support of the finding that exposure to asbestos from Olympic gloves would not have caused plaintiff's mesothelioma. In opposition, plaintiff highlights plaintiff Mario Caligiuri's extensive exposure to asbestos in Olympic brand gloves at a high frequency and for many years. Further, plaintiff offers conflicting expert opinions regarding Mr. Caligiuri's exposure to Olympic gloves and its causal connection to his mesothelioma. Plaintiff additionally notes that moving defendant has not offered any medical expert to opine on medical causation, and that Olympic does not dispute its sale of asbestos-containing gloves from approximately the 1920s-1980s.

The Court notes that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). "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). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See id. at 853.

Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 (1st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1st Dep't 1990). The court's role is "issue-finding, rather than issue-determination". Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations

omitted). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. See Ugarriza v Schmieder, 46 NY2d 471, 475-476 (1979). Furthermore, the Appellate Division, First Department has held that on a motion for summary judgment, it is moving defendant's burden "to unequivocally establish that its product could not have contributed to the causation of plaintiff's injury". Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 (1st Dep't 1995).

The appropriate standard at summary judgment for moving defendant Olympic can be found in Dyer v Amchem Products Inc., 207 AD3d 408, 409 (1st Dep't 2022). In Dyer, defendants were granted summary judgment not by "simply argu[ing] that plaintiff could not affirmatively prove causation" but by "affirmatively prov[ing], as a matter of law, that there was no causation." Id. The Appellate Division, First Department, recently affirmed this Court's decision in Sason v Dykes Lumber Co., Inc., et. al., 2023 NY Slip Op 05796 (1st Dep't 2023), stating that "the parties' competing causation evidence constituted the classic `battle of the experts'" sufficient to raise a question of fact, and to preclude summary judgment. Here, defendant Olympic fails to dispute that they sold asbestos-containing gloves for the use and at the time period described by Mr. Caligiuri as the source of his exposure. They solely offer the opinion of an industrial hygienist as to the levels of exposure and the general relationship to the causation of mesothelioma. Defendant Olympic has failed to proffer any expert report as to the medical causation relevant to the instant plaintiff. This is insufficient to meet defendant's burden under Dyer and Reid, supra. Given that plaintiff has established defendant Olympic did sell asbestos-containing gloves matching Mr. Caligiuri's exposure, use, timeline, and description, and that plaintiff has offered conflicting evidence regarding causation, sufficient issues of fact remain as to preclude summary judgment.

Accordingly, it is

ORDERED that defendant Olympic's motion for summary judgment is denied in its entirety; and it is further ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon all parties with notice of entry. This constitutes the Decision/Order of the Court.

Sources

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