Diedrich v. Robert A. Keasbey Co. (IN the Matter of New York City Asbestos Litigation, 2004)

Our plain-English summary of IN the Matter of New York City Asbestos Litigation (New York Supreme Court, Appellate Division, May 6, 2004).

Catherine Oken, as executrix of Edwin Diedrich, sued Robert A. Keasbey Company and others. Diedrich, an ironworker, died in 2003 of mesothelioma that was allegedly caused by exposure to asbestos dust beginning as early as the 1960s. He claimed negligence and strict products liability against Keasbey, an insulation subcontractor that acknowledged selling or distributing insulation materials containing asbestos. Keasbey moved for summary judgment, arguing there was no evidence that it supplied asbestos products used at any work site where Diedrich worked. It also objected that the trial court had considered evidence that would be inadmissible at trial, such as testimony from unrelated cases and unauthenticated invoices and records. The Appellate Division upheld the denial of the motion. It said such evidence may be considered in opposing summary judgment so long as it is not the only basis for the ruling. It also said a plaintiff need only show facts from which the defendant's liability may reasonably be inferred. It found enough evidence, not all of it hearsay, to warrant a 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, Appellate Division, 1st Dept.
• Decided: May 6, 2004
• Citation: 7 A.D.3d 285
• Stage: Appeal from summary judgment
• State: New York

Outcome. The Appellate Division affirmed the denial of summary judgment to Robert A. Keasbey Company, so the executrix's claims go to trial.

What the court held. Evidence that would be inadmissible at trial may be considered in opposing summary judgment if it is not the sole basis for the decision. A plaintiff need only show facts from which the defendant's liability may reasonably be inferred, not the precise cause of the injury.

Issues decided: Causation, Trial Procedure and Discovery, Product Identification.

Why this case is relevant

The Appellate Division, First Department, applied rules taken from earlier decisions rather than announcing new ones. It held that evidence that would be inadmissible at trial, such as testimony from unrelated cases and unauthenticated invoices, may be considered in opposing summary judgment as long as it is not the sole basis for the ruling. It also repeated that a plaintiff need not show the precise cause of the injury, only facts and conditions from which the defendant's liability may reasonably be inferred, and found the executrix had offered enough evidence, not all of it hearsay, to warrant a trial.

Later decisions in our library cite it mostly for these summary judgment standards. New York Supreme Court judges in asbestos cases, including talc and flooring claims, repeatedly quote its finding that the plaintiff presented sufficient evidence, 'not all of which is hearsay, to warrant a trial,' as support for denying summary judgment, and cite it for the reasonable-inference rule. In 2021 the Appellate Division relied on it in noting that inadmissible evidence was not the sole basis for finding issues of fact. One later court cited it while finding a plaintiff's proof insufficient against one defendant.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Edwin Diedrich: mesothelioma; died

The defendants

• Robert A. Keasbey Company (contractor)
• A.C. & S.

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.

Later decisions citing this one

69 later decisions in our library cite this one. The 30 from the highest courts, newest first:

• Hildebrand v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2021). The First Department affirmed the denial of the Port Authority's summary judgment motion on the Labor Law § 200 and common-law negligence claims, so plaintiff Seval Morgan's claims against the Port Authority continued.
• Faivor v. Amchem Prods., Inc. (New York Supreme Court, 2021). The court denied summary judgment to DAP (without prejudice to renewal on proper papers), Hennessy Industries and American Biltrite, so the plaintiffs' claims against all three go forward.
• Piepke v. Insulation Distributors (In re Eight Judicial District Asbestos Litigation) (New York Supreme Court, Erie, 2020). 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.
• Salzano v. Kaiser Gypsum Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court denied Kaiser Gypsum Company's motion for summary judgment, so the executor's and Frances Salzano's claims against it proceed.
• Germain v. Whittaker Clark & Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court granted Whittaker Clark & Daniels summary judgment only on claims about talc sold to American International Industries, Johnson & Johnson and Colgate-Palmolive, and denied it on claims about talc sold to Neslemur for Clubman talcum powder, so the plaintiffs' claims on that talc continue.
• Eckrich v. ECR Int'l (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The court denied ECR International's motion for summary judgment, so the Eckrich plaintiffs' claims against ECR go forward.
• Rivera v. General Electric Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court denied General Electric's motion for summary judgment on workers' compensation exclusivity grounds and, alternatively, on punitive damages, so plaintiffs' claims against GE proceed.
• Luca v. American Int'l Indus. (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The court denied American International Industries' motion for summary judgment dismissing the complaint and cross-claims, and its alternative motion to dismiss the punitive damages claims, so the plaintiffs (the Luca estate and widow) won.
• Peterson v. Vanderbilt Mineral (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). On renewal, the court vacated its earlier grant of summary judgment to Vanderbilt Mineral, denied Vanderbilt's summary judgment motion including on punitive damages, and denied its motion to change venue, so plaintiffs Stanley and Debby Peterson won and the case was restored to the trial calendar.
• Jackson v. Henry Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court denied Henry Company's motion for summary judgment, so the estate's claims against Henry go forward to trial.
• Rivera v. Meriden Molded Plastic (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court denied Meriden Molded Plastic Inc.'s motion for summary judgment, so the plaintiffs' claims and the cross-claims against it continue.
• Luca v. Whittaker, Clark and Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The court denied Whittaker, Clark and Daniels' motion for summary judgment dismissing the plaintiffs' complaint and cross-claims, and its alternative request to dismiss the punitive damages claim, so the plaintiffs' claims go forward.
• Rothlein v. Whittaker Clark & Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The court granted Whittaker Clark & Daniels' summary judgment motion only as to talc supplied to Johnson & Johnson and Colgate-Palmolive (unopposed), and denied it as to talc supplied for Old Spice, Mennen and Clubman powders, so plaintiffs' claims on those products continue.
• Mauro v. Kennedy Electrical Supply, Corp. (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court denied Kennedy Electrical Supply Corp.'s motion for summary judgment dismissing the plaintiffs' complaint and cross-claims, finding a fact issue on whether the decedent was exposed to asbestos products Kennedy sold to Con Ed.
• Vincent v. Baltimore Aircoil Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The court denied Baltimore Aircoil Company's motion for summary judgment dismissing the Vincents' complaint and all cross-claims, finding fact issues on product identification.
• Richards v. American Biltrite (Matter of Eighth Jud. Dis. Asbestos) (New York Supreme Court, Erie, 2020). The court denied American Biltrite's motion for summary judgment, so the plaintiff's claim over the Amtico floor tiles goes to trial.
• Stiglitz v. Homasote Co. (Matter of New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court denied Homasote Company's motion for summary judgment dismissing the plaintiffs' complaint and all cross-claims, so the plaintiffs (the estate and widow) prevailed on the motion.
• Sargent v. Paccar, Inc. (New York Supreme Court, Albany, 2020). The court denied PACCAR Inc.'s (Peterbilt's) motion for summary judgment dismissing the Sargent plaintiffs' complaint and cross claims, finding the defendant did not meet its initial burden and that fact issues remained.
• Schrank v. Amchem Prods., Inc. (New York Supreme Court, 2020). The trial court granted Ford Motor Company's motion for summary judgment and dismissed the complaint and cross claims against Ford, finding the plaintiffs' experts failed to show specific causation.
• Allen v. Air & Liquid Sys. Corp. (New York Supreme Court, 2019). The trial court denied defendant Armstrong Pumps Company's (Aurora) motion for summary judgment, so plaintiff Lorraine Allen's claims and all cross-claims against Aurora stayed in the case.
• Licul v. Mario DiBono Plastering Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The trial court denied defendant Mario DiBono Plastering Co.'s motion for summary judgment, so the plaintiffs' claims and the cross-claims against it go forward.
• Leavitt v. Rogers Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied Rogers Company's motion for summary judgment and its motion to dismiss for lack of personal jurisdiction, so the Leavitts' claims against it continue; the plaintiffs' cross-motion for jurisdictional discovery was denied as moot.
• Carlstrand v. Mannington Mills (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The trial court denied defendant Mannington Mills, Inc.'s motion for summary judgment dismissing the plaintiffs' complaint and all cross-claims, so the plaintiffs' claims against it continue.
• Rosen v. Fisher Scientific Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The trial court denied Fisher Scientific Company, LLC's motion for summary judgment (and its alternative request for a hearing on plaintiff's experts' methodology), so plaintiff Michael Rosen's claims against Fisher go forward.
• Rothlein v. American Int'l Indus. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court granted American International Industries summary judgment only for decedent's alleged exposure to Clubman talc from 1982 through August 13, 1987, and denied the motion for the period from August 13, 1987 through 1995, including on punitive damages, so plaintiffs' remaining claims continue.
• Hernandez v. Whittaker, Clark & Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court granted Whittaker, Clark & Daniels' summary judgment motion only for claims after 2004 and for talc sold to Johnson & Johnson for Baby Powder in 1976-1983, and denied it otherwise, so plaintiffs' claims over talc supplied to Avon for 1960-2004 and punitive damages go to trial.
• Jackson v. CertainTeed Corp. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied CertainTeed Corporation's motion for summary judgment, so the estate of Stephen Jackson's claims and all cross-claims against CertainTeed go forward to trial.
• Chalco v. Burnham (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court granted Burnham, LLC's motion for summary judgment and dismissed the plaintiffs' claims and all cross-claims against Burnham, because plaintiffs did not show the decedent was exposed to asbestos from Burnham boilers; claims against the other defendants continue.
• Mantovi v. American Biltrite (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court granted American Biltrite, Inc.'s motion for summary judgment and dismissed the Mantovi plaintiffs' complaint and all cross-claims against it.
• Lattanzio v. Rockwell Automation (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied Rockwell Automation, as successor to Allen-Bradley, summary judgment dismissing plaintiffs' complaint and cross-claims, so plaintiffs Philip and Kathleen Lattanzio won 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.

7 A.D.3d 285 (2004)

776 N.Y.S.2d 253

IN THE MATTER OF NEW YORK CITY ASBESTOS LITIGATION.

CATHERINE OKEN, as Executrix of EDWIN DIEDRICH, Deceased, Respondent,

v.

A.C. & S. ET AL., Defendants, and ROBERT A. KEASBEY COMPANY, Appellant.

May 6, 2004.

Appellate Division of the Supreme Court of the State of New York, First Department.

Concur — Tom, J.P., Saxe, Lerner, Marlow and Gonzalez, JJ.

Plaintiff's decedent, who died in 2003, contracted mesothelioma allegedly from exposure to asbestos-laden dust from as early as the 1960s, while employed as an ironworker. He asserted claims for negligence and strict products liability against Keasbey, a commercial and industrial insulation subcontractor that has acknowledged having sold or distributed insulation materials that contained asbestos. The summary judgment motion was grounded on the absence of any evidence in the record that it ever sold or distributed any asbestos-containing products specifically used at a work site where decedent was employed.

Keasbey challenges the motion court's consideration of proof that would be inadmissible at trial, including deposition testimony offered in other unrelated cases and unauthenticated hearsay invoices and records. However, evidence otherwise excludable at trial may be considered in opposition to a motion for summary judgment as long as it does not become the sole basis for the court's determination (Navedo v 250 Willis Ave. Supermarket, 290 AD2d 246, 247 [2002]). This Court has noted, in prior asbestos litigation, that "[w]hile defendant's own failure, in the first instance, to unequivocally establish that its product could not have contributed to the causation of plaintiff's injury would have required denial of its motion for summary judgment [citation omitted], here plaintiff's papers identified specific brands of the subject asbestos products, including those of defendant, in use at the relevant work site during the relevant [*286] time, showed that various asbestos products were interchangeable in the work site at the time, and showed that he was heavily exposed to asbestos dust at that site during that time. The plaintiff is not required to show the precise causes of his damages, but only to show facts and conditions from which defendant's liability may be reasonably inferred" (Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 [1995]). Plaintiff has presented sufficient evidence, not all of which is hearsay, to warrant a trial. We have considered defendant's other arguments and find them unavailing.

Sources

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