Esposito v. Abb, Inc. (2021)

Our plain-English summary of Esposito v. Abb, Inc. (New York Supreme Court, March 31, 2021).

Loretta Esposito sued, as executrix of her late husband Nicholas J. Esposito, Jr.'s estate, after he was diagnosed with inoperable Stage IV lung cancer in May 2019 and died that November. The plaintiff alleged that asbestos-containing valves made by The William Powell Company contributed to his illness. The opinion says he worked at the Kips Bay Steam Generating Station and the Astoria and Ravenswood Power Generating Stations, and that he testified he worked with Powell asbestos-containing valves there. Powell moved for summary judgment. It argued he had denied working with its valves, and that the plaintiff could not show exposure to its product. The court reviewed the deposition and found he had identified Powell valves. It also found that Powell relied only on gaps in the plaintiff's proof. Powell offered no evidence that its valves lacked asbestos or produced no dust, and no expert report on causation. Powell therefore did not meet its initial burden, and the court denied the motion.

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: March 31, 2021
• Citation: 2021 NY Slip Op 31163(U)
• Docket: Docket No. 190163/2019, Motion Seq. No. 001
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The trial court denied defendant William Powell Company's motion for summary judgment, so the plaintiff's complaint and all cross-claims against Powell remain.

What the court held. A defendant seeking summary judgment in an asbestos case must show its product could not have contributed to the plaintiff's injury; it cannot meet that burden by pointing to gaps in the plaintiff's proof.

Issues decided: Causation, Product Identification.

The people and their exposure

• Nicholas J. Esposito, Jr.: lung cancer; died

Who	Work	Where	When	Products
Nicholas J. Esposito, Jr.	mechanic (power plants and utilities)	Kips Bay Steam Generating Station, New York, New York		Powell valves (The William Powell Company)
Nicholas J. Esposito, Jr.	worked with valves (power plants and utilities)	Astoria Power Generating Station, New York, New York		Powell valves (The William Powell Company)
Nicholas J. Esposito, Jr.	worked with valves (power plants and utilities)	Ravenswood Power Generating Station, New York, New York		Powell valves (The William Powell Company)

The defendants

• The William Powell Company (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• DiSalvo v. Neles-Jamesbury (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2014). The Appellate Division affirmed the denial of summary judgment to Neles-Jamesbury, Inc., holding it had not met its initial burden, so plaintiff Carl DiSalvo prevailed on the appeal.
• 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.

2021 NY Slip Op 31163(U)

LORETTA ESPOSITO, AS EXECUTRIX OF THE ESTATE OF NICHOLAS J. ESPOSITO, JR.,

DECEASED, LORETTA ESPOSITO, Plaintiff,

v.

ABB, INC., AIR & LIQUID SYSTEMS CORPORATION, ARMSTRONG INTERNATIONAL, INC.,

AURORA PUMP COMPANY, BEAZER EAST INC., BELDEN WIRE & CABLE COMPANY, LLC, BW/IP,

INC., CBS CORPORATION, CLARK-RELIANCE CORPORATION, CLEAVER-BROOKS INC., CONVAL,

INC., COPES-VULCAN INC., CRANE CO., INDIVIDUALLY AND AS SUCCESSOR TO AND DOING

BUSINESS AS, CRANE ENVIRONMENTAL, INC., CRANE PUMPS & SYSTEMS, INC., CROSBY

VALVE, LLC, EATON CORPORATION, ELLIOTT COMPANY, ERICSSON INC., FLOWSERVE

CORPORATION, FLOWSERVE US, INC., FMC CORPORATION, GARDNER DENVER, INC.,

GENERAL CABLE CORPORATION, GENERAL ELECTRIC COMPANY, GEROSA, INCORPORATED,

GOULD ELECTRONICS, INC., GOULDS PUMPS, LLC, GRAYBAR ELECTRIC COMPANY INC.,

GRINNELL LLC, ITT LLC, INDIVIDUALLY, DOING BUSINESS AS AND SUCCESSOR TO ITT

CORPORATION, BELL & GOSSETT COMPANY AND/OR BELL & GOSSETT DIVISION, FLOJET

CORPORATION, THE HOFFMAN SPECIALTY MANUFACTURING COMPANY, ITT FLUID PRODUCTS

CORPORATION, J.R. CLARKSON COMPANY, THE, LLC, JENKINS BROS., MINE SAFETY

APPLIANCES COMPANY, LLC, MUNACO SEALING SOLUTIONS, INC., NASH ENGINEERING

COMPANY, THE, OKONITE COMPANY, INC., THE, OLYMPIC GLOVE AND SAFETY CO., INC., RSCC

WIRE & CABLE LLC, SCHNEIDER ELECTRIC USA, INC., SIEMENS INDUSTRY, INC., SPIRAX

SARCO, INC., TRANE US, INC., FORMERLY KNOWN AS AMERICAN STANDARD, INC.,

INDIVIDUALLY, AS SUCCESSOR TO AND DOING BUSINESS AS, TREADWELL CORPORATION,

TRIANGLE PWC, INC., UNION CARBIDE CORPORATION, VELAN VALVE CORP., VIKING PUMP

INC., WARREN PUMPS LLC, WEIL-McLAIN, WEIR VALVES & CONTROLS USA, INC, WILLIAM

POWELL COMPANY, THE, YUBA HEAT TRANSFER LLC, ZY-TECH GLOBAL INDUSTRIES, INC.,

JOHN DOE 1 THROUGH JOHN DOE 75, CUMMINS INC., INDIVIDUALLY, AS SUCCESSOR TO AND

DOING BUSINESS AS CUMMINS ENGINE COMPANY AND ONAN CORPORATION, Defendant.

Docket No. 190163/2019, Motion Seq. No. 001.

Motion December 7, 2020.

March 31, 2021.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 253, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 278 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER).

Before the Court is defendant The William Powell Company's ("Powell") motion for summary judgment, pursuant to CPLR 3212, to dismiss plaintiff's Complaint and all cross-claims, based on plaintiffs alleged failure to make a prima facie showing that plaintiff Nicholas J Esposito, Jr. ("Decedent") was actually exposed to fibers released from a product sold, supplied and/or distributed by Powell. Plaintiffs oppose the motion.

Powell's motion contends that plaintiff has failed to establish that a Powell product was a substantial factor in causing plaintiff's alleged injuries. The case at issue arises from Decedent's May 2019 diagnosis of inoperable Stage IV lung cancer, that unfortunately led to his death on November 16, 2019, which plaintiffs allege, was caused by decedent's exposure from asbestos containing valves manufactured by Powell.

Decedent worked at Kips Bay Steam Generating Station as well as Astoria and Ravenswood Power Generating Stations where he testified to working with Powell asbestos containing valves. Decedent specifically identified Powell asbestos containing valves. Here, upon motion for summary judgment, Powell alleges that it did not cause plaintiffs' injuries. "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]).

Here, Powell argues that Decedent unequivocally denied ever working with a Powell valve. Powell argues that Decedent "passively failed to identify Powell" as a source of his asbestos exposure because Decedent did not initially identify Powell as a manufacturer of valves he had worked with (Mot, ¶ 29; Exh E at 34-35; 78). Powell attempts to raise a feigned issue of fact by alleging that Decedent "actively denied exposure to Powell valves at least four (4) separate times during his discovery deposition" (Mot, ¶ 30). Upon examination of Decedent's deposition, the Court finds that Decedent did, in fact, identify Powell valves.

The four times in Decedent's testimony that Powell refers to are merely points in Decedent's deposition where he was asked if he remembered making statements regarding Powell valves earlier in his deposition (Mot, Exh H at 503; 577-579). Powell has attached the deposition of Decedent in which he clearly identifies Powell as a manufacturer of the valves that Decedent encountered as a mechanic at Kips Bay (Mot, Exh J at 26, ¶¶ 8-18; at 79, ¶¶ 9-11). Based upon the subject papers, Powell has failed to meet its burden to show that its product could not have contributed to the causation of plaintiff's asbestos-related injuries (In re New York City Asbestos Litig.: DiSalvo v. A.O. Smith Water Prods., 123 AD3d 498, 499 [1st Dept 2014]).

Notably, a defendant cannot satisfy this burden by merely pointing to gaps in a plaintiff's proof (Alvarez v. 21st Century Renovations Ltd., 66 A.D.3d 524, 525 [1st Dept 2009]). Here, the Court notes that Powell's motion relies solely on gaps in plaintiff's proof in attempt to meet its burden. Powell has made conclusory allegations that Decedent testified to not having worked with Powell valves. Powell has provided no evidence that its valves, which Decedent testified were present at the various stations where Decedent worked, were not manufactured with asbestos.

Further, Powell has provided no evidence that their product did not create visible asbestos dust which Decedent testified being exposed to (Mot, Exh E at 49-66). Powell contests causation, but does not provide a single report from any industrial hygienist, physician or medical expert, in support of its motion. Powell "bears the initial burden to establish that exposure to the asbestos from [its products] could not have contributed to [mesothelioma] or that [Decedent] was not exposed to levels of asbestos sufficient to contribute to the development of his disease" (Pogacnik v A.O. Smith Water Prods. Co., 60 Misc. 3d 1208[A], 2018 NY Slip Op 51026[U], [*2] [Sup Ct, NY County 2018]). Powell has merely pointed to gaps in plaintiffs' proof and has failed to provide evidence to prove that Decedent was not exposed to asbestos through one of Powell's products. Thus, Powell has failed to meet its burden for summary judgment and Powell's motion to dismiss plaintiffs' Complaint and all cross-claims is denied.

Accordingly, it is

ORDERED that defendant's motion for summary judgment, pursuant to CPLR 3212, for a finding in favor of Powell on the grounds that plaintiff has failed to put forth legally sufficient evidence to establish an issue of material fact as to whether any product manufactured, sold or distributed by Powell caused or contributed to plaintiff's mesothelioma and to dismiss plaintiff's Complaint and all cross-claims against Powell is denied; and it is further

ORDERED that within 30 days of entry, plaintiffs 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