Fischer v. Aerco Intl., Inc. (2013)

Our plain-English summary of Fischer v. Aerco Intl., Inc. (New York Supreme Court, September 23, 2013).

Gertrude Fischer, individually and as administratrix of the estate of her husband Arthur Fischer, sued over his mesothelioma, diagnosed in August 2012. He died in December 2012. Mr. Fischer testified that from 1950 to 1954 he worked as a civilian draftsman at the Brooklyn Navy Yard, designing radar and electrical installations aboard several Navy ships. He said pumps were everywhere on the ships and that workers repaired them near him, creating dust from asbestos gaskets. He never named Nash Engineering Company as a pump maker. Plaintiffs offered a General Information Book showing eight Nash pumps on the U.S.S. Hornet in 1953. Nash moved for summary judgment, also arguing its pumps had no asbestos gaskets until at least 1958. The court granted the motion. It held Nash showed Mr. Fischer never identified its product, and plaintiffs showed only that Nash pumps were present on one ship in his last year. That presence did not support a reasonable inference that he was exposed to fibers from Nash's product. 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: September 23, 2013
• Citation: 2013 NY Slip Op 32260(U)
• Docket: Docket No. 190462/12, Motion Seq. No. 002
• Stage: Summary judgment
• State: New York

Outcome. The trial court granted defendant Nash Engineering Company's summary judgment motion and dismissed the plaintiffs' claims and all cross-claims against Nash, while the action continued against the remaining defendants.

What the court held. A plaintiff must show actual exposure to asbestos fibers released from the defendant's product; the mere presence of the defendant's product at a worksite, without more, is not enough to infer exposure.

Issues decided: Product Identification.

The people and their exposure

• Arthur Fischer: mesothelioma; died

The defendants

• Nash Engineering Company (manufacturer)
• Aerco International, Inc.

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.

2013 NY Slip Op 32260(U)

GERTRUDE FISCHER, as Administratrix for the Estate of ARTHUR FISCHER, and GERTRUDE

FISCHER, individually Plaintiffs,

v.

AERCO INTERNATIONAL, INC., etal. Defendants.

Docket No. 190462/12, Motion Seq. No. 002.

September 19, 2013.

Filed September 23, 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 September 19, 2013. In this asbestos personal injury action, defendant Nash Engineering Company ("Nash") moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims against it on the ground that plaintiffs have failed to establish that plaintiffs' decedent Arthur Fischer[1] was exposed to any asbestos-containing product manufactured, distributed, sold, or installed by Nash. For the reasons set forth below, the motion is granted.

Arthur Fischer was diagnosed with mesothelioma on August 29, 2012. On October 4, 2012 Mr. Fischer and his wife Gertrude Fischer commenced this action to recover damages for personal injuries caused by his alleged exposure to asbestos. Mr. Fischer was deposed prior to his death on November 7 and 8, 2012[2] and testified that he worked as a civilian draftsman at the Brooklyn Navy Yard from 1950 until 1954. In this role, Mr. Fischer was responsible for designing the installation of radar systems and other electrical equipment aboard the U.S.S. Oriskany, U.S.S. Hornet, U.S.S. Wasp, U.S.S. Bennington, U.S.S. Lake Champlain and U.S.S. Antietam.

Mr. Fischer testified that the only asbestos exposure he had at the Brooklyn Navy Yard was when he was on the ships (Deposition, pp. 57-58); that his job, which was to measure and allocate the use of the spaces on the ships in relation to power distribution, took him "all over the ships" (Deposition, pp. 56, 164-65, 76; 181); that pumps were every place on the ships (Deposition, p. 83); that while he was making his measurements, which involved "flat up, down and all sides", there was work taking place on the ships' pumps all of the time, with people continuously disassembling them and repairing them in his presence (Deposition, pp. 76-77, 89-90), that all pumps have gaskets and that the use of asbestos was common in pump gaskets (Deposition, p. 80); and that this work continuously created dust in his presence which he breathed in. Although Mr. Fischer could not recall specifically his work on each ship and testified to such work in a general fashion, plaintiffs submit a "General Information Book" for the U.S.S. Hornet[3] which shows that as of 1953 eight Nash pumps were present on that ship. In this regard plaintiffs claim that at some point between 1950 and 1954 Mr. Fischer was exposed to asbestos from Nash pumps located aboard the U.S.S. Hornet.

On this motion the defendant argues that it is entitled to summary judgment because Mr. Fischer never identified Nash as a manufacturer of the pumps he encountered despite being able to recall eleven other manufacturers of pumps he encountered throughout his career. Plaintiffs respond that the General Information Book for the U.S.S. Hornet which shows the presence of Nash pumps on that ship, taken together with Mr. Fischer's testimony that his work took him to all areas of a ship raises a material question of fact whether Mr. Fischer was exposed to asbestos from Nash pumps. In response to plaintiffs' exhibit 4 defendant argues that nowhere does Mr. Fischer's testimony identify the ship on which he may have encountered a Nash pump in addition to which its Wayne County, Michigan interrogatory responses submitted by plaintiffs on this motion[4] show that Nash pumps did not contain asbestos gaskets until at least 1958, four years after Mr. Fischer left his position at the Brooklyn Navy Yard.

To obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law, and must tender sufficient evidence to demonstrate 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 make a prima facie showing of entitlement to judgment as a matter of law, 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). In this regard, it is sufficient for the plaintiff to 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 identity of a manufacturer of a defective product may be established by circumstantial evidence but such evidence cannot be speculative or conjectural. See Healey v Firestone Tire & Rubber Co., 87 NY2d 596, 601 (1996). The mere presence of the product at the plaintiff's worksite is not a sufficient nexus to create a reasonable inference of exposure to the defendant's product. Diel v Flintkote Co., 204 AD2d 53 (1st Dept 1994).

In this case the defendant has facially established its entitlement to summary judgment insofar as it has shown that Mr. Fischer never identified a Nash product as a source of his exposure. In turn, plaintiffs have failed to meet their burden to raise a material issue of fact. In order to succeed on this motion, plaintiffs had to allege facts and conditions from which the defendant's liability may be reasonably inferred, i.e., that defendant's product was used in the vicinity where plaintiff worked and that plaintiff was exposed to asbestos fibers released from defendant's product. In this regard, although Nash pumps may have been present on one of the six ships on which Mr. Fischer worked during his service at the Brooklyn Navy Yard from 1950 until 1954, the mere presence of such pumps on the U.S.S. Hornet in 1953 during Mr. Fischer's last year there, without more, is not a sufficient nexus to create a reasonable inference of exposure. There is nothing shown from which it can be reasonably inferred Nash pumps were placed in Mr. Fischer's zone of exposure. See Cawein, supra.; Diel, supra. Accordingly, it is hereby

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

ORDERED that the action shall continue as against the remaining defendants; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the Court.

[1] Mr. Fischer passed away from his illness on December 27, 2012.

[2] Mr. Fischer's deposition transcripts are submitted collectively as defendant's exhibit C.

[3] Plaintiffs' exhibit "4".

[4] Plaintiffs' exhibit "5", p. 10.

Sources

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