Fischer v. American Biltrite, Inc. (2020)

Our plain-English summary of Fischer v. American Biltrite, Inc. (New York Supreme Court, Appellate Division, June 11, 2020).

Dona Fischer and other plaintiffs sued Burnham LLC and other companies over the mesothelioma of a decedent. According to the opinion, the decedent worked in greenhouses that Burnham made, and he named three possible sources of asbestos there: transite benches, window glazing and the greenhouse boiler. The plaintiffs' family ran a gardening business. The trial court granted Burnham summary judgment. The First Department reversed and denied the motion. It held that Burnham, as the party seeking summary judgment, had to show unequivocally that its products could not have contributed to the illness. Burnham only pointed to gaps in the plaintiffs' proof, which was not enough. The court added that, even if Burnham had met its burden, the plaintiffs' evidence raised a factual question about whether Burnham sold, distributed and recommended asbestos-containing products. Hearsay could be considered because it was not the only basis of the opposition. The court also said leave to renew should have been granted because of an affidavit from the decedent's brother, and it dismissed that appeal as moot.

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, Appellate Division, 1st Dept.
• Decided: June 11, 2020
• Citation: 184 A.D.3d 446
• Stage: Appeal from summary judgment
• State: New York

Outcome. The First Department reversed the order granting Burnham's motion for summary judgment dismissing the complaint, denied the motion so plaintiffs won, and dismissed the appeal from the denial of renewal as moot.

What the court held. A defendant moving for summary judgment in an asbestos case must first show unequivocally that its product could not have contributed to the decedent's injury; pointing to gaps in the plaintiff's proof does not meet that burden.

Issues decided: Causation, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• decedent (Fischer): mesothelioma; died

The defendants

• Burnham LLC (manufacturer)
• American Biltrite, Inc.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Shanahan v. Aerco Intl., Inc. (New York Supreme Court, Appellate Division, 1st Dept., 2019). The First Department affirmed the denial of Algoma Hardwoods' motion for summary judgment, so plaintiff Michelle Shanahan's claims against Algoma continue.

Later decisions citing this one

2 later decisions in our library cite this one:

• Faivor v. Amchem Prods., Inc. (New York Supreme Court, 2021). The court denied summary judgment to DAP (without prejudice to renewal on proper papers), Hennessy Industries and American Biltrite, so the plaintiffs' claims against all three go forward.
• Johnson v. Aerco Intl., Inc. (New York Supreme Court, 2021). The court denied McCord Corporation's motion for summary judgment, so plaintiff Sheila Johnson's complaint and all cross-claims against McCord remained pending.

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.

184 A.D.3d 446 (2020)

126 N.Y.S.3d 16

2020 NY Slip Op 03277

Dona Fischer et al., Appellants,

v.

American Biltrite, Inc., etal., Defendants, and

Burnham LLC, Respondent.

190271/16. 11633A. 11633.

Decided June 11, 2020.

Appellate Division of the Supreme Court of New York, First Department.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about March 20, 2019, which granted defendant Burnham's motion for summary judgment dismissing the complaint against it, unanimously reversed, on the law, without costs, and the motion denied. Appeal from order, same court and Justice, entered on or about June 10, 2019, insofar as it denied plaintiffs' motion to renew, unanimously dismissed, without costs, as moot.

Concur—Richter, J.P., Manzanet-Daniels, Kapnick, Kern, Oing, JJ.

In connection with a motion for summary judgment in an action based on exposure to asbestos, defendant has the initial burden of showing "unequivocally" that its product could not have contributed to the causation of decedent's asbestos-related injury (see Shanahan v Aerco Intl., Inc., 172 AD3d 534, 534 [1st Dept 2019]; see also Matter of New York City Asbestos Litig., 116 AD3d 545 [1st Dept 2014]).

Defendant Burnham failed to sustain its initial burden of demonstrating that its products could not have contributed to decedent's mesothelioma. Decedent's testimony identified defendant as the manufacturer of greenhouses in which he worked and cited three possible sources of asbestos: transite benches in the greenhouses, window glazing and the greenhouse boiler. Burnham provided no evidence demonstrating that its products could not have been the source of the asbestos that caused decedent's illness. It only pointed to gaps in plaintiffs' proof, which was insufficient to meet its burden (see Ricci v A.O. Smith Water Prods. Co., 143 AD3d 516 [1st Dept 2016]). Even if the burden had shifted, plaintiffs' evidence in opposition raised an issue of fact as to whether Burnham had sold, distributed, and recommended asbestos-containing products such as those used in plaintiffs' family's gardening business. While hearsay, that evidence could be considered by the court since it was not the sole basis of the opposition (see Long v Taida Orchids, Inc., 117 AD3d 624, 625 [1st Dept 2014]).

[*447] Alternatively, even if the summary judgment motion had been properly granted, the court should have granted leave to renew in the interests of fairness and justice since plaintiffs presented an affidavit of decedent's estranged brother, which supplied crucial evidence linking decedent's illness to Burnham's products.

We have considered defendant Burnham's remaining arguments and find them unavailing.

Sources

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