Greene v. Amchem Prods., Inc. (2021)

Our plain-English summary of Greene v. Amchem Prods., Inc. (New York Supreme Court, June 1, 2021).

Bonnie Jean Greene, as administratrix of the estate of Frederick Lindberg, and Christina Lindberg sued a number of companies in New York County. Mr. Lindberg was diagnosed with mesothelioma and died. The plaintiffs alleged he was exposed to asbestos while working as a boiler mechanic for Federal Oil Company for about a year and a half in the mid-1950s, where he worked on Columbia brand boilers. Columbia Boiler moved for summary judgment, arguing there was no causation, and asked for a Frye hearing on the plaintiffs' experts. Columbia's industrial hygienist said any exposure would have been low and that chrysotile-induced mesotheliomas occur only with very high exposure. The plaintiffs' expert, Dr. Zhang, said chrysotile fibers can cause cancer. The court held that the decedent's testimony together with the expert reports raised factual issues, and that the disagreement between experts was a credibility question for a jury. It also found Columbia had not shown the plaintiffs' experts used methods not generally accepted, so it denied both the summary judgment motion and the Frye hearing request.

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: June 1, 2021
• Citation: 2021 NY Slip Op 31853(U)
• Docket: Docket No. 190200/2018, Motion Seq. No. 004
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied Columbia Boiler's motion for summary judgment and its request for a Frye hearing, so the plaintiffs' claims against Columbia Boiler continue.

What the court held. Conflicting expert opinions on whether chrysotile exposure from the defendant's product can cause mesothelioma raise credibility issues that cannot be resolved on summary judgment. A Frye hearing is not warranted where the defendant has not shown the plaintiff's expert methods lack general acceptance in the relevant scientific community.

Issues decided: Causation, Expert Testimony, Product Identification.

The people and their exposure

• Frederick F. Lindberg: mesothelioma; died

The defendants

• Columbia Boiler Company of Pottstown (manufacturer)

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.

2021 NY Slip Op 31853(U)

BONNIE JEAN GREENE, AS ADMINISTRATRIX FOR THE ESTATE OF FREDERICK F. LINDBERG,

AND CHRISTINA LINDBERG, INDIVIDUALLY, Plaintiff,

v.

AMCHEM PRODUCTS, INC., AMERICAN BILTRITE INC, BORGWARNER MORSE TEC LLC, BW/IP,

INC. AND ITS WHOLLY OWNED SUBSIDIARIES, CBS CORPORATION, F/K/A VIACOM INC.,

CERTAINTEED CORPORATION, CLYDE UNION, INC, COLUMBIA BOILER COMPANY OF

POTTSTOWN, CRANE CO, CROWN BOILER CO., DEAN PUMP DIVISION, FEDERAL-MOGUL

ASBESTOS PERSONAL INJURY TRUST, FLOWSERVE US, INC., FMC CORPORATION, FORD

MOTOR COMPANY, GARDNER DENVER, INC., GENERAL ELECTRIC COMPANY, GOODYEAR

CANADA, INC, HONEYWELL INTERNATIONAL, INC., IMO INDUSTRIES, INC, J.H. FRANCE

REFRACTORIES COMPANY, KOHLER CO., OWENS-ILLINOIS, INC., PEERLESS INDUSTRIES, INC.,

PFIZER, INC. (PFIZER), PORT AUTHORITY OF NEW YORK AND NEW JERSEY, R.W. BECKETT

CORPORATION, ROPER PUMP COMPANY, SCHNEIDER ELECTRIC USA, INC. FORMERLY KNOWN

AS, SLANT/FIN CORPORATION, THE B.F. GOODRICH COMPANY, (GOODRICH CORPORATION),

THE FAIRBANKS COMPANY, THE GOODYEAR TIRE AND RUBBER COMPANY, U.S. RUBBER

COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, WEIL-McLAIN, A DIVISION OF THE

MARLEY-WYLAIN COMPANY, Defendant.

Docket No. 190200/2018, Motion Seq. No. 004.

Motion September 3, 2020.

June 1, 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 004) 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 267, 268, 269, 270, 271, 287, 288 were read on this motion to/for JUDGMENT — SUMMARY. Upon review of the papers and after oral argument, it is ORDERED that defendant Columbia Boiler's ("Columbia") motion for summary judgment pursuant to CPLR 3212, seeking an Order dismissing the Complaint and all cross-claims, in their entirety, as they relate to Columbia and that this Court conduct a Frye hearing to determine the foundational adequacy and admissibility of plaintiff's experts' opinions regarding causation is denied. The underlying case stems from plaintiff Frederick Lindberg's ("Decedent") diagnosis of mesothelioma due to his exposure to asbestos which led to his death. Plaintiff alleges that Decedent was exposed to asbestos through his work as a boiler mechanic for Federal Oil Company for approximately one and a half years in the mid-1950s where he performed work on Columbia brand boilers. Plaintiff and defendant experts disagree on the underlying science at issue. The fact that plaintiff and defendant's experts disagree on the underlying science raises a credibility issue that cannot be resolved without jury consideration. Conflicting testimony raises credibility issues that cannot be resolved on papers and is a basis to deny summary judgment (Messina v New York City Transit Authority 84 AD3d 439 [2011]).

In Marzigliano v Amchem Products, Inc., etal., Index No. 190134/2017 Motion Sequence 003, the Honorable Manuel J. Mendez ruled that conflicting affidavits regarding a plaintiff's exposure to chrysotile asbestos fibers raises issues of fact on general causation. Further, as to specific causation the Court noted that "[p]laintiffs are not required to show the precise causes of damages as a result of [plaintiff's] exposure to [defendant's] product, only `facts and conditions from which defendant's liability may be reasonably inferred'" (id. at 6).

Here, like the plaintiff in Marzigliano, plaintiff cites to Decedent's testimony which identified defendant's asbestos product as the source of their exposure to asbestos (Aff in Op, Exh 1 at 309). In support of their motion defendants submit the expert reports of Industrial Hygienist, Eric J. Rasmuson, who concluded that in the event Decedent worked with Columbia boilers, potential exposure, if any, would have been low level and would not have placed Decdent at increased risk for mesothelioma (Mot, Exh E at 10). Mr. Rasmuson concluded that "chrysotile-induced mesotheliomas only occur with very high exposure" (id. at 8).

In opposition, plaintiff submits the expert reports of Dr. David Y. Zhang who concluded, contrary to defendant's experts, that chrysotile asbestos fibers are capable of causing cancer. Plaintiff's deposition combined with the expert reports has created "facts and conditions from which [defendant's] liability may be reasonably inferred" and raises issues of fact (Reid v Ga-Pacific Corp., 212 AD2d 462 [1st Dept. 1995]). Thus, plaintiff has provided evidence of causation stating that defendant's product is capable of causing the underlying illness at issue, and the contflicting testimony warrants the denial of defendant's motion for summary judgment. Further, the Court finds that the defendant has failed to demonstrate that plaintiff's expert report is not based upon scientific methodologies, theories or processes that are generally accepted in the relevant scientific community. Thus, the branch of defendant's motion which seeks a Frye hearing to determine the foundational adequacy and admissibility of plaintiff's experts' opinions regarding causation is denied. Accordingly, it is

ORDERED that defendant's motion for summary judgment, pursuant to CPLR 3212, for a finding in favor of defendant on the grounds that said defendant has made a prima facie case demonstrating lack of causation and to dismiss plaintiffs Complaint and all cross-claims against Columbia is denied; and it is further

ORDERED that the branch of defendant's motion which seeks a Frye hearing is denied; and it is further ORDERED that within 30 days of entry, plaintiff 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