Kline v. Crane Co. (IN the Matter of New York City Asbestos Litig., 2010)

Our plain-English summary of IN the Matter of New York City Asbestos Litig. (New York Supreme Court, October 15, 2010).

Nelda Kline, administrator of the estate of Sidney Kline, sued Crane Co. and other defendants in New York City's asbestos litigation. Mr. Kline served in the Navy from 1944 to 1946, including several months as a fireman aboard the USS Cone, and later worked in construction in York, Pennsylvania. He died in 2002 of mesothelioma. The plaintiff claimed his exposure came from asbestos-containing Crane Co. valves on the ship. Crane Co. moved for summary judgment, saying there was no evidence its valves were on the USS Cone or that Mr. Kline was exposed to them. The plaintiff offered a Navy memorandum about a similar class of ships, an internet article, Crane's interrogatory answers saying its valves were approved for use on the ship, and testimony from other Navy men in other cases. The court found this evidence speculative. It did not show Crane valves were aboard during Mr. Kline's service, where they were, or that he worked near them. The court granted the motion and dismissed the claims against Crane Co.

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: October 15, 2010
• Citation: 2010 NY Slip Op 32933
• Stage: Summary judgment
• State: New York

Outcome. The court granted Crane Co.'s motion for summary judgment, dismissing the Kline estate's complaint and all cross-claims against Crane Co., while the case continued against the remaining defendants.

What the court held. A plaintiff must show actual exposure to asbestos fibers released from the particular defendant's product; circumstantial evidence can suffice only where there is a time-and-place link to the defendant's product, and speculative inferences from ship-class similarity, approvals, or other workers' testimony do not meet that standard.

Issues decided: Causation, Maritime Law and Navy Ships, Product Identification.

The people and their exposure

• Sidney P. Kline: mesothelioma; died

Who	Work	Where	When	Products
Sidney P. Kline	Navy fireman (the Navy); military service	USS Cone	1945-1946	gaskets and packing, Crane Co. valves

The defendants

• Crane Co. (manufacturer)

Other decisions in this case

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

• IN the Matter of New York City Asbestos Litig. (July 10, 2007). The court denied Chrysler's post-verdict motion to vacate the jury's finding of reckless disregard and to reduce the $25,000,000 verdict or order a new trial, so the plaintiffs, Alfred and Margaret D'Ulisse, kept the verdict.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Kreppein v. Celotex Corp. (U.S. Court of Appeals, Second Circuit, 1992). The Second Circuit affirmed the judgment holding Celotex liable for 32.5% of the damages to Mary Kreppein, rejecting Celotex's challenges on product nexus, apportionment and the amended complaint, and denied plaintiff's request for sanctions.
• 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.

2010 NY Slip Op 32933(U)

In Re: New York City Asbestos Litigation NYCAL

NELDA KLINE, as Administrator for the Estate of SIDNEY P. KLINE, Individually Plaintiff(s),

v.

DECISION AND ORDER A.C. & S, INC., etal., Defendants.

122594/00, Motion Seq. 001.

October 15, 2010.

October 6, 2010.

Supreme Court, New York County.

SHERRY KLEIN HEITLER, Judge:

In this asbestos personal injury action, defendant Crane Co. ("Crane Co." or "Defendant") moves pursuant to CPLR. § 3212 for an order granting it summary judgment dismissing the complaint and all cross claims against it. For the reasons set forth below, the motion is granted.

BACKGROUND

This is an action commenced by Nelda Kline and Sidney P. Kline ("Mr. Kline"), against Crane Co., a manufacturer of industrial products, to recover damages for personal injures allegedly caused by exposure to asbestos-containing valves while on board the USS Cone. Mr. Kline was enlisted in the United States Navy from January 31, 1944 to May 19, 1946. Beginning November 21, 1945, he served for several months as a Navy fireman aboard the USS Cone. From his discharge in 1946 until 1986, Mr. Kline worked as a civilian construction worker at various locations in York, Pennsylvania. Mr. Kline died on February 25, 2002 as a result of mesothelioma.

The depositions of all key fact witnesses were to be completed by August 1, 2009, Plaintiff did not produce any witnesses for deposition in this case, including Mr. Kline, who passed away before he could be deposed. In accordance with the New York City Asbestos Litigation Case Management Order, Defendant served a request for a No Opposition Summary Judgment Motion and Order upon Plaintiff on or about December 21, 2009. Plaintiff declined to voluntarily dismiss Crane Co. from this case based on its assertion that Crane Co. valves containing asbestos were approved for use on the USS Cone, where Mr. Kline served.

On April 22, 2010, Defendant filed the instant motion for summary judgment alleging, among other things, that: (1) Plaintiff offered no evidence or testimony that Crane Co. products were installed on the USS Cone; and (2) There is no evidence that Mr. Kline was exposed to asbestos during the time he served on board the USS Cone. In opposition. Plaintiff alleges that: (1) Crane Co.'s own interrogatory responses demonstrate that asbestos containing valves were approved for use on the USS Cone; and (2) As a Navy fireman, Mr. Kline would have been exposed to Crane Co. valves while working in the engine and boiler rooms aboard the ship.

DISCUSSION

In order to obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. See Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CPLR § 3212[b). Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action. See Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986].

In a personal injury action arising from a plaintiff's alleged exposure to asbestos or an asbestos-containing material, the plaintiff is required to demonstrate that he was actually exposed. to asbestos fibers released from a particular defendant's

product. See Cawein v Flintkote Co., 203 AD2d 105, 106 [1st Dept 1994]. Mere boilerplate and conclusory allegations will not suffice. Id. The plaintiff is not required, however, to "show the precise causes of his damages, but only to show facts and conditions from which defendants' liability may reasonably be inferred." Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 [1st Dept 1995].

Defendant Crane Co. has made a prima facie showing of its entitlement to summary judgment by showing that no evidence, admissible or otherwise, has been presented which establishes that Crane Co. valves were present on the USS Cone during the relevant period and no evidence has been presented that Mr. Kline himself was exposed to valves or to asbestos fibers released from any product manufactured, sold, or suppled by Crane Co.

In opposition. Plaintiff submits a number of documents which are alleged to show that Crane Co. valves were used on the USS Cone. The first is a memorandum from the Office of the Supervisor of Shipbuilding of the United States Navy, dated August 30, 1944 ("Navy Memorandum") which indicates that the Navy planned to use Crane Co. valves on the Sumner-class of ships. The Sumner-class of ships were a group of destroyers similar to the Gearing-class of ships to which the USS Cone belonged, The second document submitted by Plaintiff is a copy of an internet article which suggests that the two classes of ships were identical but for the fact that the Gearing-class of ships had a fourteen-foot longer hull. See Affidavit of Samuel Meirowitz, dated June 9, 2010 ("Opposition"), Exhibit 6-7.

Taken together, these documents do not support an inference that Crane Co. valves were present aboard the USS Cone. The Navy Memorandum refers to "Main Condenser Air Ejector Valves" and Plaintiff has produced no evidence of Mr. Kline's presence in any area of the ship where he might have been exposed to such valves. The Navy Memorandum also provides no indication that such valves contained asbestos. Similarly, Plaintiffs reliance on the internet article for the proposition that Crane Co. valves were present on the Gearing-class of ships, including the USS Cone, is misplaced. The article simply suggests that the two classes of ships had similar designs. To infer that both classes of ships necessarily contained the same parts at the same time is speculative and cannot defeat Defendant's application for summary judgment. See Cawein, supra, 203 AD2d at 106.

While the interrogatory responses might be said to shed some light on the matter, they arc also too speculative in nature to raise issues of fact. While Crane did acknowledge in its interrogatories that its valves "were approved for use on the USS Cone" and that "certain of the valves had enclosed in their metal structure asbestos-containing gaskets, packing, or discs." (Opposition, Exhibit 3, pp. 5-6), the interrogatory answers are not sufficient evidence that the valves were actually present on the USS Cone during the relevant time or where on the vessel such valves may have been installed. See id. Even if Crane Co.'s interrogatory responses were sufficient to establish that its valves were furnished to the USS Cone at some time, there is nothing to indicate what valves were used, whether they contained asbestos, or whether they were installed at the time Mr. Kline was on board the ship. Overall, the Navy Memorandum, internet article, and interrogatory answers are not sufficient to raise an issue of fact as to whether Crane Co. valves were present aboard the USS Cone during the relevant time period.

Plaintiff contends that as a Navy fireman, Mr. Kline would have necessarily worked in the engine/boiler area of the ship where many of Crane Co's valves would be located. To support this proposition, Plaintiff relies on the affidavit of non-party Joseph Kristis, sworn to December 30, 2009. The affidavit states that from 1943 to 1946, Mr. Kristis worked as a ship's fireman. His work was performed in the ship's engine room where he was allegedly exposed to asbestos-containing products. Mr. Kristis described his duties as a ship's fireman to include packing steam valves with asbestos mixtures that he mixed on board, However, the affidavit does not specify whether Mr. Kristis was a Navy fireman, whether he was ever stationed on the USS Cone, or whether he ever knew Mr. Kline.

In further support of the proposition that Mr. Kline would have been exposed to asbestos from Crane Co. valves due to the nature of his work as a Navy fireman on the USS Cone, Plaintiff offers the deposition testimony in a separate case of Marvin Zatz, a lead man machinist who supervised repairs done to the USS Cone. Mr. Zatz testified that he joined the Navy in about 1948.

"Q: Where did you go next? ...

A:... I was assigned to the Cone and Ellison. Supervisor. That's leading man, was a supervisor marine machinist. They were both destroyers

* * * *

Q: What were your duties as a leading marine machinist?

A: I was in charge of the repairs of the engine room and fire room, Talking about the Cone.

Q: Do you believe you were exposed to asbestos while supervising this work?

A: Sure did.

Q: How?

A: I witnessed the performance of the men on each job, so while they were involved with the removal of material and the installation of material 1 was there. Plus the other trades were there, and we worked right along with pipefitters in the majority of the stuff down in the engine room and fire room. They were busy ripping apart lagging and insulation on the steam piping. We were there waiting for them to get finished so we could rip apart the flanges to get at the machinery. During that period there was a lot of dust all over the place."

See Opposition. Exhibit 13. pp. 87-89, Plaintiff further relies on the deposition testimony of Lloyd Cyr in another separate case. Mr. Cyr was a Navy Engineman who served aboard the USS Marias in the early 1950's.

"Q: Okay. And with regard to — you said that you thought Mr. Robinson would have been exposed to

asbestos from just going into the boiler room.

A: Uh-huh.

Q: Why is that?

A: Because you got constant vibration and movement going on, you know. The whole thing is moving, and there's a lot of — when the boilers are operating, there's pulsating going on, so you got to have some, some kind of exposure to because those things are all insulated.

Q:... With respect to the engine room, when the — would you say that the same effect on the equipment that you had in the boiler room from the ship vibrating and shaking, would that be also true of the engine room equipment?

A: Yes."

See Opposition, Exhibit 14, pp. 40-41, 101-102.

While such testimony might indicate those particular witnesses were exposed to asbestos, there is simply no evidence that Mr. Zatz and Mr. Kline worked on any of the same equipment while on board the USS Cone. In addition, Mr. Kline served aboard the USS Cone in the mid 1940's, at least two years before Mr. Zatz joined the Navy in 1948, and almost 10 years before Mr. Zatz began working at the Brooklyn Navy Yard, At no point in Mr. Zatz' deposition docs he identify valves, let alone Crane Co. valves, as the source of his exposure on the USS Cone. Even less apparent is any connection between Mr. Kline and Mr. Cyr. Although both individuals were Navy personnel, they held different ranks, presumably performed different tasks, and never served aboard the same vessel. The proposed connection is too attenuated to defeat Defendant's prima facie case.

While this Court agrees that circumstantial evidence may be used to support liability where there is a linkage between time and place to the defendant's product, see Jamieson v A.C. & S., Inc. etal., 1998 WL 635549, No. 93 CV 7957, at [*3] [SONY Sept 16, 1998], such a showing has not been made here, In Jamieson, the plaintiff testified that he was exposed to asbestos pipe covering while he worked at a ship yard in California. The plaintiff, who never mentioned the name of the defendant, was able to defeat the motion for summary judgment by proffering testimony of co-workers who had worked at the same facility during the relevant time period who were able to name the defendants products. Similarly, the Second Circuit in Kreppein noted that circumstantial evidence was sufficient to raise triable issues of fact where a co-worker who worked in the shipyard at the same time as the plaintiff identified the defendant's products and where two other workers corroborated the co-workers testimony. See Kreppein v Celotex Corp., 969 F2d 1424, 1426 [2d Cir 1992].

Here, unlike in Jamieson or Kreppein, there is insufficient circumstantial evidence to defeat summary judgment. Mr. Zatz and Mr. Cyr never served with Mr. Kline, did not work at the same time as Mr. Kline, and never mentioned any Crane Co. products which may have led to their ailments. Drawing every possible inference in favor of the Plaintiff, there is simply no lime and place connection among Mr. Kline. Mr. Zatz, Mr. Cyr, and Crane Co. products which, taken together, may raise a factual issue as to whether Crane Co's actions constituted a substantial factor in causing Plaintiffs injuries. Therefore, it is hereby

ORDERED that Defendant's motion for summary judgment is granted, and that this action against Defendant, and any cross-claims related to this defendant 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 constitutes the Decision and Order of the Court.

Sources

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