Finazzo v. AO Smith Water Prods. Co. (2011)

Our plain-English summary of Finazzo v. AO Smith Water Prods. Co. (New York Supreme Court, December 19, 2011).

Salvatore Finazzo sued A.O. Smith Water Products and other companies, claiming his malignant mesothelioma was caused by asbestos exposure during a 40-year career (1953-1993) as an electrician. He said he was exposed to asbestos from roofing materials, cement, brakes, gaskets, piping, tiles and boilers. The motion before the court concerned Georgia-Pacific, whose joint compound he said spacklers used near him while he worked for electrical contractor M. Eisenberg & Bros. from 1958 to 1983. Georgia-Pacific asked for summary judgment, arguing his claim of exposure to its product was speculative. The court granted the motion. Finazzo's deposition could not say where or when he encountered Georgia-Pacific products. At the Kings Plaza Macy's job he said most of the product he saw was US Gypsum. Georgia-Pacific's undisputed statements were that it made the asbestos-containing products only from 1965 and stopped in 1977. Without other evidence on dates or sites, a jury could only speculate. The claims and cross-claims against Georgia-Pacific were dismissed; the case continued against the other defendants.

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 19, 2011
• Citation: 2011 NY Slip Op 33504(U)
• Docket: No. 190129/2011, Motion Seq. No. 2
• Stage: Summary judgment
• State: New York

Outcome. The trial court granted Georgia-Pacific's motion for summary judgment and dismissed plaintiff Finazzo's claims and all cross-claims against it, while the action continued against the other defendants.

What the court held. A plaintiff must show exposure to asbestos fibers released from the defendant's product and that the exposure was a substantial factor in the injury; testimony that can only speculate about when or where exposure to the defendant's product occurred does not meet that burden.

Issues decided: Causation, Product Identification.

The people and their exposure

• Salvatore Finazzo: mesothelioma

Who	Work	Where	When	Products
Salvatore Finazzo	electrician (construction); worked near others using it	Macy's store, Kings Plaza, Brooklyn, New York	1958 to 1983	joint compound, Georgia-Pacific joint compound or spackle, US Gypsum

The defendants

• Georgia-Pacific, LLC (manufacturer)
• A.O. Smith Water Products Co.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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.

2011 NY Slip Op 33504(U)

SALVATORE FINAZZO, Plaintiff,

v.

A.O. SMITH WATER PRODUCTS CO., etal., Defendants.

No. 190129/2011, Motion Seq. No. 2.

December 19, 2011.

Supreme Court, New York County.

DECISION AND ORDER

SHERRY KLEIN HEITLER, Judge:

Plaintiff Salvatore Finazzo commenced this action to recover for personal injuries alleged to have been caused by his occupational exposure to asbestos-containing products. Mr. Finazzo, who suffers from malignant mesothelioma, was deposed over a period of five days in June, 2011.[1] He testified that he spent the majority of his 40-year career (1953-1993) working as an electrician for various companies at various worksites. He alleges that he was exposed to asbestos from working with or around, roofing equipment, cement, brakes, gaskets, piping equipment, tiles and boilers, among other things. Relevant to this motion is his claim that he encountered spacklers who worked with asbestos-containing Georgia-Pacific joint compound or spackle in his presence during the period 1958 to 1983 when he worked for an electrical contractor called M. Eisenberg & Bros.. Georgia-Pacific moves pursuant to CPLR 3212 for summary judgment dismissing plaintiff's action and all cross claims against it on the ground that plaintiff's claims of exposure to its product are, at best, speculative.

In an asbestos personal injury action, a plaintiff must demonstrate that he was exposed to asbestos fibers released from the defendant's product (Cawein v Flintkote Co., 203 AD2d 105, 106 [1st Dept 1994]), and that it was more likely than not that such exposure was a substantial factor in his injury (Diel v Flintkote Co., 204 AD2d 53, 54 [1st Dept 1994]). In this case, plaintiff Salvatore Finazzo's evidence does not support a conclusion, or even an inference (see, Reid v Georgia Pacific Corp., 212 AD2d 462, 462 [1st Dept 1995]) that he was exposed to asbestos from a Georgia-Pacific product. While Mr. Finazzao generally testified to the use of Georgia-Pacific joint compound or the like in his presence while he worked for Eisenberg, he was unable to establish where or when during that time that such encounters would have occurred. One example of plaintiff's equivocal testimony on the issue may be found in defendant's Exhibit B, pp. 281-293 (emphasis added):

Q. Sir, did you ever work at a Macy's store in Kings Plaza?

A. Yes.

* * * *

Q. Were you assigned to work on this new construction once or more than once?

A. Well, I was on that job for quite a while.

Q. And how long was that, sir?

A. Maybe a year and a couple of months.

Q. And you were sent there by M. Eisenberg?

A. Yes.

Q. Do you recall, if not the year, the decade that Macy's was constructed?

A. Could have been in the 60's but I'm not sure of that.

* * * *

Q. You also testified that sheetrockers and spacklers worked on site. Do you associate a particular

manufacturer's name with the sheetrock at the Macy's site?

A. I would say US Gypsum and possibly Georgia-Pacific with the spackling at times.

Q. It's not clear, sir. With which product do you associate the name US Gypsum.

A. Yes.

Q. Which product?

A. Mostly was US Gypsum that I saw.

* * * *

Q. Is there a name that you associate specifically with just the spackle or the joint compound at this particular site?

A. Well, the reason why I mention the Georgia-Pacific, because I know I was on a job that had that spackling on the jobs but I can't say it was the Macy's job or this job or that job. But in most cases it was US Gypsum. [2] The information elicited therein is crucial given that Georgia Pacific's allegations, undisputed on this motion, are that it did not manufacture the subject asbestos-containing products until 1965, that it produced both asbestos and non-asbestos containing products from 1973-1977, and that it ceased to manufacture asbestos-containing products altogether in 1977. Because Mr. Finazzo could only speculate as to the times or places during which he may have been exposed to Georgia Pacific products, and because there is no corroborative evidence presented on this motion to assist in establishing such crucial information (for instance, evidence that might establish the date or dates of new construction at the Kings Plaza Macy's and/or other sites) there are no facts submitted herein from which a jury could infer, without speculation, that Mr. Finazzo encountered and was exposed to an asbestos-containing Georgia-Pacific product. (See, Cawein v Flintkote Co., supra; Diel v Flintkote Co., supra; Reid v Georgia Pacific Corp., supra.)

Plaintiff's reliance on this court's decision in Galen v Air & Liquid Systems Corp., etal., Index No. 190335-2010 (S. Ct. NY Co., August 23, 2011, Heitler, J.) is misplaced. Unlike the case at bar, the plaintiff in Galen, who was a building inspector, unequivocally "testified that he saw `lots of bags of Georgia-Pacific...all over'" at the diverse sites in Manhattan which he inspected, and he not only could identify the time frames during which his exposure occurred, which coincided with the time frames as to which Georgia Pacific concedes it provided asbestos containing products, but he also was able to unequivocally identify the buildings that he inspected during such time frames and to the common use of Georgia Pacific's product "in the new construction and renovations of the buildings into which it was his duty to inquire" as such building inspector (see, Galen, supra, at 1, 2).

Accordingly, it is hereby

ORDERED that Georgia-Pacific, LLC's motion for summary judgment is granted, and this action and any cross-claims against Georgia-Pacific are hereby severed and dismissed in their entirety; and it is further

ORDERED that this action shall continue as against all the remaining defendants herein; and it is further ORDERED that the Clerk is directed to enter judgment accordingly

This constitutes the decision and order of the court.

[1] The transcripts of plaintiff's deposition testimony are annexed as Exhibits B through F to defendant's moving papers. [2] Mr. Finazzo's testimony in this regard concerning his other job sites is similarly equivocal.

Sources

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