Davis v. CompuDyne (In re Eighth Judicial District Asbestos Litigation, 2021)

Our plain-English summary of In re Eighth Judicial District Asbestos Litigation (New York Supreme Court, July 23, 2021).

Jonathan Davis and his wife sued several defendants, including CompuDyne LLC as successor to boiler maker York Shipley. Davis worked as a laborer at the Gramco Inc. mill from 1976 to 1979. He testified that on about 13 occasions he helped a contractor service a York Shipley boiler. He scraped and wire-brushed gasket material, and he mixed dry asbestos cement with water. He said both tasks created dust he breathed. He was diagnosed with mesothelioma in July 2019 and died on July 10, 2020. CompuDyne moved for summary judgment, arguing that plaintiffs could not prove general or specific causation. It relied on reports from an industrial hygienist and a pulmonary doctor. The court held those reports were inadmissible hearsay because they were attached to an attorney affidavit, so CompuDyne did not meet its initial burden. The court added that even if the reports were considered, plaintiffs' sworn affidavits from an industrial hygienist and Dr. Abraham raised a triable issue. Competing expert opinions were for a jury, and the motion was denied.

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 23, 2021
• Citation: 2021 NY Slip Op 33568
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied CompuDyne's motion for summary judgment against plaintiffs Jonathan and Loretta Davis, because CompuDyne's expert reports were inadmissible hearsay and, in any event, plaintiffs' experts raised triable fact issues on causation.

What the court held. Expert reports attached to an attorney affirmation are inadmissible hearsay and cannot meet a movant's initial summary judgment burden; competing expert opinions on causation present a jury question.

Issues decided: Causation, Expert Testimony, Trial Procedure and Discovery.

The people and their exposure

• Jonathan E. Davis: mesothelioma; died

The defendants

• CompuDyne LLC f/k/a CompuDyne Corporation, individually and as successor to York Shipley, Inc. (manufacturer)
• Acme Liquidating Corp.

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Cavalieri v. A.O. Smith Water Prods. Co. (In re Eighth Judicial District Asbestos Litigation) (March 15, 2018). The court denied A.O. Smith Water Products Co.'s motion for summary judgment, ruling that Hockler v William Powell Co. did not bar the Cavalieris' claims, so plaintiffs Susan and Anthony Cavalieri prevailed on the motion.

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 EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION, 2021 NY Slip Op 33568 - NY: Supreme Court, Erie 2021 - Google … 2021 NY Slip Op 33568(U)

In Re: Eighth Judicial District Asbestos Litigation.

This Document Applies to: STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE.

JONATHAN E. DAVIS and LORETTA J. DAVIS, his spouse, Plaintiffs,

v.

ACME LIQUIDATING CORP., etal, Defendants.

Index No. 811699/2019.

July 23, 2021.

Supreme Court, Erie County.

DECISION and ORDER

DEBORAH A. CHIMES, J.S.C.

Defendant CompuDyne LLC f/k/a CumpuDyne Corporation, Individually and as successor to York Shipley, Inc. (CompuDyne) moves for summary judgement under CPLR 3212 seeking to dismiss the plaintiff's complaint and all cross-claims. (NYCEF 002).

In support of its motion, CompuDyne submitted a Notice of Motion dated January 21, 2021 and the Attorney Affirmation of Benjamin L. Careathers, dated January 21, 2021 together with the attached exhibits. In opposition, the plaintiff submitted the Attorney Affidavit of Michael A. Ponterio, sworn to on February 4, 2021 together with the attached exhibits, the Physician Affirmation of Jerrold L Abraham, M.D. dated January 29, 2021 together with attached exhibits and the Affidavit of Industrial Hygienist, Jerry Lauderdale sworn to on February 1, 2021 together with attached exhibits.

Plaintiff, worked as a laborer at Gramco Inc. mill from 1976 to 1979. During this time, the plaintiff testified his primary responsibility was handling grain and on occasion would perform maintenance and repair work on a boiler manufactured by the defendant. He testified that on about 13 occasions he would assist the boiler service contractor called in to service the boiler. On some of these occasions he would assist in the maintenance of the boiler by hand scraping and wire brushing the gasket material of the interior door and flanges on top of the boiler. The plaintiff testified to the process in which he would remove the material and that the process created visible dust that he inhaled. The plaintiff estimated it would take a half hour to an hour to remove and replace the gasket. Additionally, on occasion the plaintiff would mix dry asbestos cement in water which would then be applied by the contractor servicing the boiler. The plaintiff testified that when mixing the asbestos cement with water, there was dust created that he breathed in. In July 2019, the plaintiff was diagnosed with mesothelioma and died on July 10, 2020.

Defendant moves to dismiss the complaint arguing the plaintiff cannot establish general and specific causation. Defendant relies in part on the report of John Henshaw, their retained industrial hygienist who opines the plaintiff could not have been exposed to asbestos from the York Shipley boiler at a level that was a substantial factor in causing his development of mesothelioma. The defendant also relied on the report of its pulmonary expert, Brian Tayler, M.D. who opined the exposure to the York Shiley boiler did not cause or contribute to the plaintiff's mesothelioma. Defendant also challenges the methodology used by the plaintiff's experts Dr. Markowitz and Dr. Abraham arguing they do not rely on accepted scientific methodology and they do not offer specific comparative assessment of the plaintiff's exposure through "quantitative, qualitative or any meant whatsoever" to develop specific causation, nor does plaintiff offer scientific evidence of general causation.

The defendant's industrial hygienist's report states that "Any related asbestos exposure Mr. Davis might have experienced while allegedly working on or in the vicinity of a York-Shipley boiler would have been well below the cumulative chrysotile exposure levels with which increased risk of disease is associated. In support of his opinion the expert in part relies on studies or reports that addressed the potential for airborne fiber exposure associated with the work with the boiler described by the plaintiff. He goes on to opine that if the plaintiff's disease was caused by asbestos it was likely amphibole asbestos.

IN RE EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION, 2021 NY Slip Op 33568 - NY: Supreme Court, Erie 2021 - Google … Defendant also relies on the report of its pulmonary medical doctor which states "if [plaintiff] sustained any exposure to chrysotile asbestos attributable to work that he performed on and/or around the boilers associated with CompuDyne LLC, such exposure was "de minimus and did not cause or contribute to his development of malignant pleural mesothelioma." These reports however were submitted as attachments to an attorney affidavit and are inadmissible hearsay. Therefore, the reports are insufficient to support a summary judgement. (see, Sauter v Calabretta, 90 AD 3d 1702; Fallon v Duffi 95 AD 3d 1416; Haidar v Air & Liquid Systems Corp., etal., [Sup Ct. Erie County January 15, 2021, Chimes, J., Index No. 810929-2021]). Defendant failed to meet its initial burden and summary judgement is denied.

Even if the court were to accept the unsworn reports, the plaintiff, through the sworn affidavits of Jerry Lauderdale an Industrial Hygienist and Jerrold Abraham, M.D., sufficiently raised a triable issue of fact on the issues of general and specific causation. For example, Jerrold Abraham M.D., stated that it is the consensus opinion in the medical and scientific community that "each of the major types of asbestos fiber, including chrysotile ... individually can cause mesothelioma." The expert went on to opine that the work the plaintiff conducted on the York-Shipley boiler released levels of asbestos fibers into the plaintiff's breathing zone in excess of the background levels and the OSHA excursion limit and that this exposure was a substantial factor in causing the plaintiff's mesothelioma. Where there is competing expert opinions, the weight to give the testimony and the credibility of the witnesses must be resolved by a jury.

Defendant's motion for summary judgement is denied in its entirety.

SO ORDERED.

Sources

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