Piepke v. Insulation Distributors (In re Eight Judicial District Asbestos Litigation, 2020)

Our plain-English summary of In re Eight Judicial District Asbestos Litigation (New York Supreme Court, July 27, 2020).

Nicole Piepke, widow and executrix of Heinrich Piepke's estate, sued over his death on August 1, 2018, which was caused or contributed to by mesothelioma. He worked as a bricklayer for Balling Construction, a Buffalo general contractor, from about 1957 to 1978. She alleged his asbestos exposure came partly from products sold, distributed and installed by Insulation Distributors, Inc. and Niagara Insulations, Inc. Both companies moved for summary judgment, arguing there was no evidence he was exposed to asbestos from their products. They also argued that her interrogatory answers, made on information and belief, did not identify them properly. The court rejected that argument and held that sworn interrogatory answers in that form are acceptable, especially when the injured person has died. It held that the companies had not offered admissible proof, such as an affidavit from someone with knowledge, that their products could not have been a source of his exposure. Niagara's claim to be only a service contractor also failed for lack of a factual basis. The court denied the motions. It deferred the punitive damages question until after the liability and damages trial.

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, Erie
• Decided: July 27, 2020
• Citation: 2020 NY Slip Op 35079
• Docket: Docket No. Index No. 805478/2019
• Stage: Summary judgment
• State: New York

Outcome. The trial court denied the motions of Insulation Distributors, Inc. and Niagara Insulations, Inc. for summary judgment, ruling for plaintiff, and deferred the punitive damages issue until after the liability and damages trial.

What the court held. Defendants moving for summary judgment in an asbestos case must offer admissible evidence that their products could not have contributed to the injury; pointing to gaps in plaintiff's proof is not enough. Interrogatory answers sworn under oath but made on information and belief are acceptable, especially where the injured person is deceased.

Issues decided: Wrongful Death and Survival, Trial Procedure and Discovery, Product Identification, Punitive Damages.

The people and their exposure

• Heinrich O. Piepke: mesothelioma; died

The defendants

• Insulation Distributors, Inc. (supplier)
• Niagara Insulations, Inc. (contractor)
• CBS Corporation f/k/a Viacom Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Berensmann v. Georgia-Pacific (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2014). The appellate court dismissed the claims about Georgia-Pacific's wallboards because it never made asbestos wallboard, but otherwise affirmed the denial of Georgia-Pacific's summary judgment motion, so plaintiffs' joint compound claims proceed.
• Diedrich v. Robert A. Keasbey Co. (IN the Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2004). The Appellate Division affirmed the denial of summary judgment to Robert A. Keasbey Company, so the executrix's claims go to trial.
• Root v. Eastern Refractories Co., Inc. (New York Supreme Court, Appellate Division, 4th Dept., 2004). The Appellate Division reversed the order granting summary judgment to Eastern Refractories Co., denied the motion, and reinstated the executor's complaint against Eastern.
• 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.

IN RE EIGHT JUDICIAL DISTRICT ASBESTOS LITIGATION, 2020 NY Slip Op 35079 - NY: Supreme Court, Erie 2020 - Google Sc… 2020 NY Slip Op 35079(U)

IN Re: EIGHT JUDICIAL DISTRICT ASBESTOS LITIGATION.

NICOLE G. PIEPKE, Executrix of the Estate of HEINRICH O. PIEPKE, Deceased, and Individually as

the Surviving Spouse of HEINRICH O. PIEPKE, Plaintiff,

v.

CBS CORPORATION F/K/A VIACOM INC., Successor by merger to CBS CORPORATION F/K/A/

WESTINGHOUSE ELECTRIC CORPORATION, etal. Defendants.

Docket No. Index No. 805478/2019.

July 27, 2020.

Supreme Court, Erie County.

E. Meghan Dwyer, Esq., Barclay Damon, The Avant Building Suite 1200, 200 Delaware Avenue, Buffalo, New York 14202, Attorneys for Defendant Insulation Distributors, Inc.

Tackjin Kim, Esq., Lewis Brisbois Bisgaard & Smith, LLP, 77 Water Street, 21st Floor, New York, New York 10005, Attorneys for Defendant Niagara Insulations, Inc.

Keith R. Vona, Esq., Richmond Vona, LLC, 1659 Amherst Street, Suite 100, Buffalo, New York 14214, Attorneys for Plaintiff. DECISION AND ORDER

DEBORAH A. CHIMES, Justice of the Supreme Court.

Defendants Insulation Distributors, Inc., ("IDI" or "Buffalo"), and Niagara Insulations, Inc., ("Niagara"), moved for summary judgment dismissing all claims and counter-claims brought against them on the ground that there is no evidence that decedent Heinrich Piepke was exposed to asbestos from any product for which IDI or Niagara are responsible. Plaintiff opposed the motion, asserting that defendants failed to establish prima facie showing that they are entitled to summary judgment or in the alternative that questions of fact exist precluding summary judgment. The motions are being decided on submission.

In support of its motion, IDI has submitted its Notice of Motion, dated February 3, 2020, Affidavit of E. Meghan Dwyer, Esq, dated February 3, 2020, with attached Exhibits, and Reply Affirmation of Jennifer L. Leonardi, Esq., dated April 6, 2020, with attached Exhibits. In support of its motion, Niagara has submitted its Notice of Motion dated February 4, 2020, Affirmation of Tackjin Kim, Esq., dated February 4, 2020 with attached Exhibits, and the Reply Affirmation of Tackjin Kim, Esq., dated May 4, 2020 with attached Exhibits. In opposition to the motions, plaintiff submitted Affirmation of Keith R. Vona, Esq., dated March 3, 2020 with attached Exhibits.

Background

Plaintiff has brought this action to recover for damages associated with the death of Heinrich Piepke on August 1, 2018, which was caused or contributed by mesothelioma. Heinrich Piepke worked as a bricklayer for Balling Construction, a general contractor in Buffalo, New York, from approximately 1957 to 1978. Plaintiff alleges that Piepke was exposed to asbestos in the course of this employment. Plaintiff claims decedent's mesothelioma was caused or contributed to by exposure to asbestos fibers released by products sold, distributed and installed by defendants IDI and Niagara. As an initial matter, the defendants assert they are not properly identified because plaintiff's interrogatory answers are made "upon information and belief." Defendant, relying on Woods v Norse, 124 A.D.2d 1020, argues that interrogatory responses made only upon information and belief are insufficient to properly identify the moving defendants. However, such reliance is misplaced. In Woods, the Fourth Department examined the sufficiency of affidavits submitted in opposition to a summary judgement that were based "upon information and belief", finding they were insufficient to raise a triable issue of fact; it did

IN RE EIGHT JUDICIAL DISTRICT ASBESTOS LITIGATION, 2020 NY Slip Op 35079 - NY: Supreme Court, Erie 2020 - Google Sc… not examine the sufficiency of a disclosure device made in the same manner. Likewise, defendants' reliance on Blamowski v. Air & Liquid Systems, Inc., Erie County Index Number 808655/2014 (Decision and Order by this court dated May 26, 2016) is also misplaced as there too no defendant challenged the sufficiency of signing Interrogatories "upon information and belief", even though the Estate's Representative did exactly that. In so far as Judge McCarthy found such interrogatories insufficient (see, Pickard v. Cytec Engineered Materials, Onondaga County Index No. 2015EF2124 (Decision Order by James M. McCarthy, J.S.C. dated May 23, 2018), this Court respectfully disagrees.

Interrogatories are a disclosure device where the answers are to be made under oath and in writing (CPLR 3130, 3133). Here, the Interrogatories are verified by plaintiff, decedent's wife, as Executrix of the Estate of decedent and as surviving spouse. Such written answers to interrogatories, sworn to under oath, even if made upon information and belief are in acceptable form, especially where the injured party is deceased. Otherwise, every representative of a decedent who fails to have personal knowledge would be unable to identify a defendant; though there may be sufficient proof developed through further discovery that supports the identification. The plaintiff clearly identified the defendants and their product in her interrogatory responses and the burden on summary judgement remains with the defendants.

Analysis

It is well established in asbestos litigation that to go forward with a motion for summary judgment dismissing a complaint, a defendant must present admissible evidence showing that the complaint has no merit (see Diel v Flintkote Co., 204 AD2d 53 [1994]), or affirmatively establish the merit of its defense (see Higgins v Pope, 37 AD3d 1086 [2007]; Refermat v A. C. AND S., Inc., 15 AD3d 928 [2005]; Root v Eastern Refractories Co., Inc., 13 AD3d 1187 [2004]; Matter of Eighth Jud. Dist. Asbestos Litig. [Takacs], 255 AD2d 1002 [1998]; Reid v Georgia-Pacific Corp., 212 AD 2d 462 [1995]). 462 [1995]). In cases alleging asbestos exposure, a defendant must "make prima facie showing that its product could not have contributed to the causation of Plaintiff's injury" (Comeau v W. R. Grace & Co.- Conn. (In re N.Y.C. Asbestos Litig.), 216 AD2d 79 [1st Dept. 1995]). The defendant must "unequivocally establish that its product could not have contributed to the causation of plaintiff's injury" for the court to grant summary judgment (Matter of N.Y.C. Asbestos Litig., 122 AD3d 520 [1st Dept. 2014]). A defendant cannot obtain summary judgment simply by "pointing to gaps in plaintiffs" proof" (Torres v Indus. Container, 305 AD2d 136 [1st Dept. 2003]).

"Plaintiff is not required to show the precise causes of his damages, but only show facts and conditions from which defendant's liability may be reasonably inferred" (Reid v Ga.-Pacific Corp., 212 AD2d 462 [1st Dept. 1995]). Summary judgment must be denied when the plaintiff has "presented sufficient evidence, not all of which is hearsay, to warrant a trial" (Oken v A. C. & S. (In re N.Y.C. Asbestos Litig.), 7 AD3d 285).

Defendants moved for summary judgment arguing that Mr. Bigham's exposure and product identification testimony concerning the decedent are inadequate. However, as movants, they bear the initial burden of putting forth evidence in admissible form that their asbestos could not have been a source of plaintiff's injury (O'Connor v. Aerco Intl., Inc., 152 AD3d 841, [3rd Dept, 2017]; Blamowski v. Air & Liquid Systems, Inc., Erie County Index Number 808655/2014 (Decision and Order by this court dated May 26, 2016). Defendants have not come forward with any proof, in admissible form, which establishes they could not have been the source of plaintiff's injury. They did not submit an affidavit by someone with knowledge to establish that IDI and/or Niagara were not present at D'Youville or Buffalo State Colleges, or that they did not generate asbestos dust to which decedent could have been exposed. Accordingly, defendants have not met their burden to be awarded summary judgment and the motion is denied.

Further, defendant, Niagara, argues it is a service contractor and not subject to liability. However, defendant failed to assert a factual basis for its contention that it is a contractor only, and therefore, not subject to products liability claims. Defendant failed to establish that "the predicate sale of a good is wholly absent because the transaction was `clearly on one for services" Matter of Eighth Judicial District Asbestos Litigation, [Terwilliger], 33 NY3d 488, 501 (2019) citing Perlmuter v Beth David Hospital, 308 NY at 104) and its motion for summary judgement on this ground is denied.

Finally, Defendants motion for summary judgment on plaintiff's claim for punitive damages is deferred until the completion of the liability and damages trial.

Conclusion

IN RE EIGHT JUDICIAL DISTRICT ASBESTOS LITIGATION, 2020 NY Slip Op 35079 - NY: Supreme Court, Erie 2020 - Google Sc… In accordance with this decision, it is hereby;

ORDERED, defendants' motions for summary judgment are denied in all respects, except for the punitive damages claims which are deferred until after the liability and damages trial.

SO ORDERED.

Sources

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