Berensmann v. Georgia-Pacific (Matter of New York City Asbestos Litig., 2014)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, November 20, 2014).

William Berensmann and others sued Georgia-Pacific and other companies in New York City asbestos litigation. The complaint said he was exposed to asbestos-containing sheetrock and joint compound. The opinion does not name his disease. Georgia-Pacific appealed the denial of its motion for summary judgment. The First Department noted it was undisputed that Georgia-Pacific never made wallboard containing asbestos, so the claims about its wallboards were dismissed. The court otherwise upheld the denial of summary judgment. Georgia-Pacific had not unequivocally shown that its product could not have contributed to the injury. Berensmann may have believed the joint compound he used for home repairs was asbestos-free, but the evidence showed Georgia-Pacific made asbestos-containing joint compound at the relevant times. Georgia-Pacific began making asbestos-free joint compound around the time of his purchase. Factual questions remained about whether the asbestos-free product was available in Manhattan, where he bought it.

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: November 20, 2014
• Citation: 122 A.D.3d 520
• Stage: Appeal from summary judgment
• State: New York

Outcome. 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.

What the court held. A defendant seeking summary judgment must unequivocally establish that its product could not have contributed to the plaintiff's injury; a plaintiff's belief that the product was asbestos-free does not defeat the claim where the defendant did make asbestos-containing joint compound at the relevant time.

Issues decided: Causation, Product Identification.

Why this case is relevant

In this short decision, the First Department applied an existing rule rather than creating a new one. A defendant seeking summary judgment must "unequivocally establish that its product could not have contributed to the causation of plaintiff's injury," a standard the court quoted from an earlier First Department decision from 1995. It dismissed the claims about Georgia-Pacific's wallboard because the company undisputedly never made asbestos wallboard. It kept the joint compound claims alive, holding that the plaintiff's own belief that his joint compound was asbestos-free did not change the result. Questions also remained about whether the asbestos-free version was available in Manhattan.

Later courts cite it mainly as a routine statement of that summary judgment burden. Many New York Supreme Court decisions from 2019 to 2021 quote it, often alongside the principle that a defendant cannot meet its burden merely by pointing to gaps in the plaintiff's proof. Several describe the burden as showing either no exposure to the defendant's product or exposure too low to contribute to the illness. The Appellate Division has also cited it for the same standard and, in one case, among authorities on whether testimony created an issue of fact about a product's presence.

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

• William Berensmann

The defendants

• Georgia-Pacific LLC (manufacturer)
• 3M Company (manufacturer)

Other decisions in this case

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

• Matter of New York City Asbestos Litig. (March 23, 1993). The Appellate Division affirmed the trial court's rulings: it upheld the preclusion of the defendant's relitigation of a point decided in prior litigation, the five additurs, and the exclusion of evidence about the cause of Sutton's death, so the defendant lost.
• Matter of New York City Asbestos Litig. (October 2, 2012). The First Department affirmed the trial court's order consolidating the three plaintiffs' actions against Colgate-Palmolive for a joint trial, rejecting Colgate-Palmolive's appeal.
• Matter of New York City Asbestos Litig. (May 28, 2013). The First Department reversed the judgment awarding plaintiffs damages against the Port Authority, vacated it, denied plaintiffs' default judgment motion, and granted the Port Authority's motion to dismiss for lack of subject matter jurisdiction.
• Fersch v. Volkswagen Group of America (Matter of New York City Asbestos Litig.) (November 26, 2013). The First Department affirmed the trial court's order consolidating the Juni, Fersch and Middleton cases for trial, ruling against Volkswagen Group of America, Inc., which had appealed.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (July 3, 2014). The Appellate Division affirmed both jury-verdict judgments for the plaintiffs (Konstantin against Tishman Liquidating Corporation, Dummitt against Crane Co.) and dismissed the appeal from the order denying Crane's post-trial motion as subsumed in the judgment appeal; one justice, joined by another, dissented in part as to Dummitt.
• Andrucki v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (January 15, 2015). On remittitur from the Court of Appeals, the First Department affirmed the $2,500,000 judgment for plaintiffs against the Port Authority, which had defaulted by not appearing at trial, without an inquest on damages.
• South v. Chevron Corp. (Matter of New York City Asbestos Litig.) (August 29, 2017). The Appellate Division affirmed the denial of Texaco's summary judgment motion, so the widow's Jones Act mesothelioma claims against Texaco (sued as Chevron's alleged predecessor) continued; Texaco lost, with one justice dissenting.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (October 5, 2017). The First Department affirmed the judgment entered after a jury trial awarding plaintiff Walter Miller $5 million for past and $4 million for future pain and suffering against Hennessy Industries, which lost its appeal.
• Matter of New York City Asbestos Litig. (June 20, 2019). The Appellate Division reversed the judgment entered on a jury verdict for plaintiff, granted Whittaker Clark & Daniels' motion for judgment notwithstanding the verdict, and dismissed the complaint against it.
• Hildebrand v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (January 21, 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.
• Olson v. Johnson & Johnson (Matter of New York City Asbestos Litig.) (July 19, 2022). The First Department reversed the judgment for plaintiffs against Johnson & Johnson and directed entry of judgment for J&J, because plaintiffs' expert proof of causation was legally insufficient; the appeal from the damages-reduction order was dismissed as subsumed.
• McWilliams v. Jenkins Bros. (Matter of New York City Asbestos Litig.) (February 27, 2024). The First Department affirmed the denial of Jenkins Bros.' motion for JNOV, a new trial, or remittitur, leaving plaintiff McWilliams' $13,000,000 past and $10,000,000 future pain and suffering verdict intact.
• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (March 13, 2025). The First Department affirmed the jury-verdict judgment for plaintiffs Romeo and Rosa Maffei against Burnham LLC, including compensatory, consortium and punitive awards, and dismissed the appeal from the post-trial order as subsumed in the judgment.

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

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

• Howard v. AO Smith Water Prods. (New York Supreme Court, Appellate Division, 3rd Dept., 2023). The Appellate Division modified the order, granting Armstrong Pumps partial summary judgment for exposure before December 20, 1965 (which plaintiffs conceded), and otherwise affirmed the denial of summary judgment, so plaintiffs Howard and his spouse won on the remaining claims.
• Shanahan v. Aerco Intl., Inc. (New York Supreme Court, Appellate Division, 1st Dept., 2019). The First Department affirmed the denial of Algoma Hardwoods' motion for summary judgment, so plaintiff Michelle Shanahan's claims against Algoma continue.
• Camiolo v. American Biltrite Inc. (New York Supreme Court, 2021). The trial court denied Goodyear Tire & Rubber Company's motion for summary judgment, finding plaintiffs raised fact issues on whether decedent was exposed to asbestos from Goodyear floor tiles.
• Kriz v. Air & Liquid Sys. Corp. (New York Supreme Court, Rockland, 2021). The court granted the ten unopposed summary judgment motions of Eaton Hydraulics, Riley Power, Foster Wheeler, ViacomCBS, General Electric, Spence Engineering, GEA Mechanical, FMC, Velan Valve and Neles-Jamesbury, and denied the motions of Fisher Scientific and Armstrong International, so the plaintiff's claims against those two proceed.
• 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.
• 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.
• 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.
• 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.
• Lamenta v. American Biltrite (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court granted American Biltrite's summary judgment motion and dismissed the plaintiffs' claims and all crossclaims against it, because the plaintiffs did not raise a fact issue on general or specific causation.
• 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.
• Rivera v. Ericksson (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court denied Ericksson, Inc.'s motion for summary judgment, which sought dismissal of the plaintiffs' complaint and all cross-claims, because it did not make a prima facie showing on causation.
• Mauro v. John E. Potente & Sons (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The trial court granted John E. Potente & Sons' motion for summary judgment only to the extent of dismissing the punitive damages claims (withdrawn by stipulation) and denied the rest, so plaintiffs' claims and the cross-claims against Potente remain.
• 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.
• 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.
• 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.
• 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.
• Decanio v. Kohler Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied defendant Kohler Co.'s motion for summary judgment dismissing the plaintiffs' complaint and all cross-claims, so the plaintiffs' claims against Kohler go forward.
• Alleyne v. Revlon (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court granted Revlon's summary judgment motion only as to the conspiracy cause of action, denied it on the remaining claims, denied plaintiff Alleyne's cross-motion to compel discovery, and granted Revlon a protective order.
• Linsky v. American Biltrite (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied American Biltrite, Inc.'s motion for summary judgment dismissing plaintiff Allison Linsky's complaint and all cross-claims, finding fact issues on general and specific causation.
• Gayoso v. Nissan North America (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied Nissan North America's motion to dismiss for lack of personal jurisdiction, finding the defense waived, and denied its alternative request to preclude plaintiffs' causation expert and for summary judgment on causation, so plaintiffs prevailed.
• Alleyne 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 as to punitive damages, claims after 2004, and Johnson & Johnson Baby Powder claims for 1986-1997, and denied it otherwise, so plaintiff Alleyne's remaining talc claims go to trial.

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.

122 A.D.3d 520 (2014)

997 N.Y.S.2d 381

In the Matter of NEW YORK CITY ASBESTOS LITIGATION.

WILLIAM BERENSMANN et al., Respondents,

v.

3M COMPANY, Formerly Known as MINNESOTA MINING & MANUFACTURING CO., etal.,

Defendants, and

GEORGIA-PACIFIC LLC, Appellant.

13566, 190472/12

Decided November 20, 2014.

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

Concur — Renwick, J.P., Saxe, Moskowitz, DeGrasse and Richter, JJ.

[*521] The complaint alleges that plaintiff William Berensmann was exposed to asbestos-containing sheetrock and joint compound manufactured by, among other companies, defendant. As an initial matter, it is undisputed that defendant never manufactured wallboards containing asbestos, and thus, the claims relating to defendant's wallboards are dismissed. Summary judgment in defendant's favor was otherwise properly denied since defendant failed "to unequivocally establish that its product could not have contributed to the causation of plaintiff's injury" (Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 [1st Dept 1995]). That plaintiff may have had the subjective belief that the joint compound that he used to perform repairs in his home did not contain asbestos does not warrant a different determination, where the evidence demonstrates that defendant did manufacture joint compound containing asbestos at the relevant times. Although the record shows that defendant began to manufacture and ship asbestos-free joint compound around the time that plaintiff purchased defendant's product, issues of fact exist as to whether asbestos-free joint compound was available in Manhattan where plaintiff made his purchase of the subject product (see e.g. Lloyd v W.R. Grace & Co.—Conn., 215 AD2d 177 [1st Dept 1995]). We have considered the remaining contentions and find them unavailing.

Sources

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