McCloskey v. AO Smith Water Prods. Co. (2013)

Our plain-English summary of McCloskey v. AO Smith Water Prods. Co. (New York Supreme Court, September 23, 2013).

Patrick McCloskey and his wife Mary Anne sued A.O. Smith Water Products Co. and other defendants in New York County. Mr. McCloskey was diagnosed with mesothelioma in June 2012. He testified that he worked as a steamfitter from 1962 to 2003 and was exposed to asbestos from many products, including Goodyear sheet gaskets. He said he cut and punched gaskets from sheets stamped "Goodyear", which created dust, and that he believed they contained asbestos because he was told so and it was general knowledge. Goodyear Tire & Rubber Company and Goodyear Canada, Inc. moved for summary judgment. They argued that he had no personal knowledge the gaskets contained asbestos and that most Goodyear gaskets of that period were asbestos-free. The court granted Goodyear Canada's motion as unopposed and dismissed the claims against it. It denied Goodyear Tire & Rubber's motion. The court found his testimony raised a fact question for the trier of fact. It found the company's evidence, a corporate representative's estimate from an unrelated case, was a guess based on observation rather than figures. The case continues against the remaining defendants.

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: September 23, 2013
• Citation: 2013 NY Slip Op 32259(U)
• Docket: Docket No. 190441/12, Motion Seq. No. 001
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied Goodyear Tire & Rubber Company's motion for summary judgment, so plaintiffs' claims against it continue, and granted Goodyear Canada, Inc.'s motion as unopposed, dismissing the claims against it.

What the court held. A plaintiff's testimony that he worked with a defendant's gaskets and believed them to contain asbestos raises a fact question on exposure, and the weight of that testimony is for the trier of fact. A defendant's speculative estimate that most of its gaskets were asbestos-free does not establish entitlement to summary judgment.

Issues decided: Product Identification.

The people and their exposure

• Patrick McCloskey: mesothelioma

• Mary Anne McCloskey

Who	Work	Where	When	Products
Patrick McCloskey	career steamfitter		1962 to 2003	gaskets and packing, Goodyear sheet gaskets

The defendants

• The Goodyear Tire & Rubber Company (manufacturer)
• Goodyear Canada, Inc. (manufacturer)
• A.O. Smith Water Products Co. (manufacturer)

Other decisions in this case

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

• McCloskey v. AO Smith Water Prod. Co. (November 4, 2013). The court granted Con Edison summary judgment dismissing the Labor Law § 200 claim, which plaintiffs did not oppose, but denied the rest of its motion, so the common-law claims against Con Edison go forward.
• McCloskey v. AO Smith Water Prods. (August 29, 2014). The court denied Mario & DiBono's motion to set aside the verdict on causation, recklessness, apportionment, pain and suffering and consolidation, but ordered a new trial on loss of consortium damages unless plaintiffs accept a reduction of that award from $2 million to $340,000.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Dollas v. WR Grace & Co. (New York Supreme Court, Appellate Division, 1st Dept., 1996). The Appellate Division reversed the grants of summary judgment to W.R. Grace against plaintiffs Dollas and Gargano, finding a fact question on whether the decedents were exposed to Grace's Monokote.
• 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.

2013 NY Slip Op 32259(U)

PATRICK McCLOSKEY and MARY ANNE McCLOSKEY, Plaintiffs,

v.

A.O. SMITH WATER PRODUCTS CO., etal., Defendants.

Docket No. 190441/12, Motion Seq. No. 001.

September 19, 2013.

Filed September 23, 2013.

Supreme Court, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge.

It is ordered that this motion is decided in accordance with the memorandum decision dated September 19, 2013. In this asbestos-related personal injury action, defendants The Goodyear Tire & Rubber Company ("Goodyear") and Goodyear Canada, Inc. move pursuant to CPLR 3212 for summary judgment dismissing the complaint and all other claims against them on the grounds that the plaintiff has no personal knowledge whether the Goodyear sheet gaskets he worked with contained asbestos and because most of the gaskets manufactured by Goodyear during the relevant time period were asbestos-free. Goodyear Canada, Inc.'s motion is granted as unopposed. Goodyear Tire & Rubber Company's motion is denied as set forth herein.

Plaintiff Patrick McCloskey was diagnosed with mesothelioma in June of 2012. He and his wife Mary Anne McCloskey commenced this action on October 1, 2012. Mr. McCloskey was deposed over the course of six days in October of 2012 and March of 2013.[1] He testified that he was exposed to asbestos from various products and equipment while working as a career steamfitter from 1962 to 2003, including pumps, valves, boilers, floor tiles, packing, plaster, fireproofing, gaskets, and turbines. Relevant to this motion is Mr. McCloskey's testimony that he worked with "Goodyear" brand sheet gaskets throughout this time period (Deposition pp. 359-60, 361, 362, 363, 365, 367, objections omitted): Q. You also mentioned sheet material that you worked with, right?

A. Yes.

Q. Okay. And that's what you would use if preformed wasn't available, right?

A. Yes.

* * * *

Q. Sitting here today, can you recall any specific markings or logos?

A. Goodyear, Victor. I can't remember any others.

* * * *

Q. And you said you saw Goodyear markings on some gasket material; is that right? Is that what you said? A. On the sheets.

Q. Okay. How was it written?

A. It was stamped. There was a stamp on it.

* * * *

Q. Just very briefly, when you were using the sheet material, just describe the process? How did you do it? A. Well, if you needed a gasket, we'd go get the sheet, roll it out, cut a square big enough to place over the flange. And for a full face gasket you would start punching out, lay it on the gasket, start punching out the holes. You're creating dust all the time. You're cutting it, peening down the sides to get the round shape of the gasket. When you cut the piece off that you're going to use, you're creating dust. There's asbestos dust. It was asbestos gasket material.

* * * *

Q. . . . What's your basis for believing that the Goodyear gaskets you testified about contained asbestos? A. I was told. . . .

Q. Can you recall the name or names of anyone who told you who is still living?

A. They're dead.

Q. Aside from being told that, do you have any personal knowledge that the Goodyear gaskets that you testified about contained asbestos? ...

A. I was told by a lot of people and it was a standard thing back then that it was gaskets, gasket material was asbestos, contained asbestos. It was general knowledge.

* * * *

Q. And the general knowledge that you're talking about, that's a general belief that all gaskets during that time period contained asbestos?

A. Not all gaskets.

Q. Okay. The ones that you were using on the systems you were working on?

A. Gaskets that we used on the steam hot water, chilled water were called asbestos gaskets.

Summary judgement is a drastic remedy that must not be granted if there is any doubt about the existence of a triable issue of fact. Tronlone v La d'Amiante du Quebec, Ltee, 297 AD2d 528, 528-529 (1st Dept 2002). In an asbestos personal injury action, should the moving defendant make a prima facie showing of entitlement to summary judgment as a matter of law, the plaintiff must then demonstrate that he was exposed to asbestos fibers released from the defendant's product. Cawein v Flintkote Co., 203 AD2d 105, 106 (1st Dept 1994). It is sufficient for plaintiffs to show facts and conditions from which the defendant's liability may be reasonably inferred. Reid v Georgia Pacific Corp., 212 AD2d 462, 463 (1st Dept 1995). All reasonable inferences should be resolved in the plaintiff's favor. Dauman Displays, Inc. v Masturzo, 168 AD2d 204, 205 (1st Dept 1990).

The defendant's argument that Mr. McCloskey has no personal knowledge whether the Goodyear gaskets he worked with contained asbestos is belied by the plaintiff's own testimony. Mr. McCloskey clearly stated that he believed the Goodyear gaskets with which he worked contained asbestos based on his understanding of the products that were used by steamfitters during the relevant time period. The assessment of the value of such testimony constitutes an issue for resolution by the trier of fact. It is not a matter for this court to decide on a summary judgment motion. See Ferrante v American Lung Ass'n, 90 NY2d 623, 631 (1997); Dollas v W.R. Grace & Co., 225 AD2d 319, 321 (1st Dept 1996); Missan v Schoenfeld, 95 AD2d 198, 207 (1st Dept 1983).

The defendant's assertion that the vast majority of Goodyear gaskets manufactured during the relevant time period were asbestos-free is misplaced. In this regard, the defendant relies solely upon the July 2007 deposition testimony in an unrelated action of Goodyear corporate representative E.W. DeMarse. Mr. DeMarse, who worked for Goodyear in various capacities from 1952 to 1991, estimated that 75% of Goodyear's sheet gaskets were asbestos free. However, Mr. DeMarse admittedly did not "recall really ever seeing any figures on that" and conceded that his answer was "based more on observing in the factory the pounds and square feet that we made in both ways." (Defendant's exhibit C, p. 14[2]). That Mr.

DeMarse "hazard[ed] a guess that [Goodyear] made two or three times more nonasbestos rubber gasketing material than [it] did the compressed asbestos sheet" (id) discredits his testimony.

In light of the foregoing, it is hereby

ORDERED that The Goodyear Tire & Rubber Company's motion for summary judgment is denied in its entirety; and it is further

ORDERED that Goodyear Canada, Inc.'s motion for summary judgment is granted; and it is further

ORDERED that this action and any cross-claims against Goodyear Canada, Inc. are severed and dismissed in their entirety; and it is further

ORDERED that the remainder of the action shall continue as against the remaining defendants, including The Goodyear Tire & Rubber Company; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the Court.

[1] Mr. McCloskey's deposition transcripts are submitted as exhibit B to the moving papers.

[2] Transcript p. 28.

Sources

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