Fleming v. Advance Auto Parts, LLC (2010)

Our plain-English summary of Fleming v. Advance Auto Parts, LLC (New York Supreme Court, February 9, 2010).

Adreene Fleming, as personal representative of the estate of Marc Edwards, sued Dana Companies, LLC and others in a wrongful death action. Mr. Edwards died of malignant mesothelioma at age 51. He testified that he worked as a mechanic's helper and mechanic from 1964 to 1979. From 1977 to 1979 he did automotive work at a friend's house, scraping and removing asbestos-containing gaskets. Asked about brands, he said some were from dealers, Holley, S&K or Mr. Gasket, and "one was maybe Victor." Dana, which made Victor gaskets, moved for summary judgment, arguing there was no sufficient evidence he was exposed to asbestos from a Victor gasket. The plaintiff argued he was really describing manifold gaskets, which contained asbestos. The court granted the motion. It found that the argument about manifold gaskets did not address identification of Victor gaskets, and that the "maybe" testimony was speculative. The claims and cross-claims against Dana were dismissed, and 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: February 9, 2010
• Citation: 2010 NY Slip Op 30322(U)
• Docket: No. 190001/08 M.S. 003
• Stage: Summary judgment
• State: New York

Outcome. The court granted Dana Companies' motion for summary judgment and dismissed the complaint and all cross-claims against Dana; the action continued against the remaining defendants.

What the court held. Identifying a manufacturer's product by circumstantial evidence cannot rest on speculation; the plaintiff must show it is reasonably probable, not merely possible, that the defendant was the source of the offending product.

Issues decided: Wrongful Death and Survival, Product Identification.

The people and their exposure

• Marc Edwards: mesothelioma; died

The defendants

• Dana Companies, LLC (manufacturer)
• Advance Auto Parts, LLC

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.

2010 NY Slip Op 30322(U)

ADREENE FLEMING, as Personal Representative for the Estate of MARC EDWARDS, Plaintiff,

v.

ADVANCE AUTO PARTS, LLC, et. al., (DANA COMPANIES, LLC) Defendants.

No. 190001/08 M.S. 003.

February 9, 2010.

Supreme Court, New York County.

DECISION AND ORDER

SHERRY KLEIN HEITLER, Judge.

In this asbestos-related wrongful death action, the defendant, Dana Companies, LLC (hereinafter "Dana") moves for summary judgment, pursuant to CPLR § 3212 for an order, dismissing all claims and cross-claims asserted against it. Dana argues that the plaintiff has failed to provide sufficient evidence that Victor gaskets (manufactured, sold or supplied by Dana) were the cause of Marc Edwards' injury. The plaintiff opposes this application.

Mr. Edwards died from malignant mesothelioma at age 51. He testified, on November 12th, 13th and 14th of 2008. According to his testimony, he was exposed to asbestos while working as a mechanic's helper and mechanic from 1964 to 1979. With respect to Mr. Edwards' contact with various brands of carburetor gaskets, he testified that he did some automotive work at a friend's house between 1977 and 1979. He stated that this work required him to scrape and remove asbestos-containing gaskets, some of which he believed were Victor gaskets. Specifically, Mr. Edwards testified as follows: Q Do you know the brand name or manufacturer of the gaskets you were removing?

A Some were — let's see. Some were dealer. The majority of them were. Some were made by Holley. Some were made by S&K. Some were made by Mr. Gasket. Some were made by I believe — one was maybe

Victor. Some of them I just didn't know. The majority of them came from dealers. It depends where you got the carburetors from.

(See, Exhibit 3, Kromberg Affirmation, p. 105, 8-17.)

Mr. Edwards also stated that he never removed or installed a carburetor gasket that was

made with asbestos. Specifically, he stated:

Q The gasket that was used underneath the carburetor, did you ever remove or install one that was made with asbestos?

A No.

(See, Exhibit 4, Kromberg Affirmation, p. 524, 4-7.)

Mr. Edwards explained that the carburetor came with the gaskets and they were included in the purchase of a carburetor. Specifically, he stated:

Q When you're scraping off or removing a gasket, how can you tell what the brand name or the manufacturer of that gasket is?

A Actually, sometimes you buy the carburetor. You're going to buy the carburetor separate from the manifold. The carburetor comes with a gasket. So some would — some would — if you went to S&K and bought the carburetor, it would come with an S&K gasket. If you went to Holley and bought the carburetor, it would come with a Holley gasket. And so on with the dealers. That was all part of the package.

(See, Exhibit 3, Kromberg Affirmation, p. 105-106, 18-5.)

In support of the motion for summary judgment, Dana provides an affidavit from Marcy Duncan, who worked for Dana from 1968 through 2006. She states that at all times from 1967 to May 1988 Victor manufactured both asbestos-containing and asbestos-free vehicular gaskets (see, Exhibit 6, Kromberg Affidavit dated September 9, 2009, p. 2, 4). She also states that Victor did not manufacture or sell carburetors or operate dealerships or automotive parts stores. (Id. at p. 2, 4.) Dana argues that plaintiff has failed to present sufficient evidence to show that he was exposed to asbestos from a Victor carburetor gasket, rather plaintiff has proffered speculation, hope and unsubstantiated assumptions as to the possibility that he both worked with a Victor carburetor gasket and that it contained asbestos.

In opposition, plaintiff claims, in essence, that Mr. Edwards was talking about a manifold carburetor when he stated he worked on carburetors. Specifically, Mr. Edwards referred to the manifold as the carburetor manifold since the carburetor sat on top of the exhaust manifold. Plaintiff argues that Mr. Edwards testified to removing and installing manifold gaskets and that the manifold gaskets did contain asbestos. As Dana manufactured both asbestos-containing carburetors and manifold gaskets, plaintiff argues that summary judgment must be denied.

Under the facts of this case, the court grants Dana's motion for summary judgment. Only a genuine and material issue raised by evidentiary facts will defeat a prima facie showing of entitlement to summary judgment (see, NYCAL v. A.O. Smith, 52 A.D.3d 300 [1st Dept., 2008]). Plaintiffs contention that the manifold gaskets contained asbestos does not relate to Mr. Edwards' identification of Victor gaskets. It is undisputed that the identification testimony states that Mr. Edwards "maybe" used Victor gaskets. The identity of a manufacturer of a defective product may be established by circumstantial evidence but such evidence cannot be speculative or conjectural (see, Methyl Tertiary Butyl Ether ["MTBE"] Products Liability Litigation, 2008 WL 5188193 [S.D., N.Y.], citing Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596 [1996]). The plaintiff has failed to present sufficient evidence that it is "reasonably probable, not merely possible or evenly balanced, that the defendant was the source of the offending product" (see, Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596 [1996]).

Accordingly, the court finds that the testimony is insufficient to defeat summary judgment and the court grants summary judgment dismissing the complaint and all cross-claims against Dana; and it is hereby

ORDERED that Dana's motion for summary judgment is granted and this action against Dana and any counter-claims are severed and dismissed; and it is further

ORDERED that the remainder of the action shall continue as against the remaining defendants; and it is further ORDERED that the Clerk is directed to enter judgment accordingly.

This shall constitute the decision and order of the court.

Sources

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