Munoz v. AO Smith Water Prods. CO (2023)

Our plain-English summary of Munoz v. AO Smith Water Prods. CO (New York Supreme Court, November 21, 2023).

Maria Munoz sued many companies over the mesothelioma of Jose Munoz, who is referred to as the plaintiff-decedent. This decision concerned only DAP, Inc. (now La Mirada Products Co.), which asked for summary judgment. DAP said the claim was speculative because not every DAP caulk contained asbestos, no DAP plaster product did, and causation was not shown. The plaintiff pointed to Mr. Munoz's deposition testimony recalling asbestos dust from DAP products and to an expert's causation report. The court denied the motion. It found that DAP's former employee, Ward Treat, lacked personal knowledge to show no asbestos-containing DAP products reached Mr. Munoz. His affidavit also did not address plaster and confirmed that some caulk formulations contained asbestos. DAP's expert affidavit was not specific to Mr. Munoz's exposure history. Under First Department law, DAP had to show its product could not have contributed to his illness, and it did not. Issues of fact remained for a jury.

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: November 21, 2023
• Citation: 2023 NY Slip Op 34171(U)
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied defendant DAP, Inc.'s motion for summary judgment in its entirety, so plaintiff Maria Munoz's claims against DAP continue.

What the court held. A defendant seeking summary judgment must unequivocally establish that its product could not have contributed to the plaintiff's injury; arguing that the plaintiff cannot prove causation is not enough, and a non-case-specific expert affidavit does not meet that burden.

Issues decided: Causation, Expert Testimony, Product Identification.

The people and their exposure

• Jose Munoz: mesothelioma; died

Who	Work	Where	When	Products
Jose Munoz				DAP caulk; DAP plaster

The defendants

• DAP, Inc. k/n/a La Mirada Products Co., Inc. (manufacturer)

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.

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.

2023 NY Slip Op 34171(U)

MARIA MUNOZ, Plaintiff,

v.

A.O. SMITH WATER PRODUCTS CO, AIR & LIQUID SYSTEMS CORPORATION, AS SUCCESSOR-

BY-MERGER TO BUFFALO PUMPS, INC, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG

COMPANY, N/K/A BAYER CROPSCIENCE INC, AMERICAN BILTRITE INC, BURNHAM, LLC,

INDIVIDUALLY, AND AS SUCCESSOR TO BURNHAM CORPORATION, BW/IP, INC. AND ITS

WHOLLY OWNED SUBSIDIARIES, CBS CORPORATION, A DELAWARE CORP., F/K/A VIACOM INC.,

SUCCESSOR BY MERGER TO CBS CORPORATION, A PENNSYLVANIA CORP., F/K/A

WESTINGHOUSE ELECTRIC CORP., AS SUCCESSOR IN INTEREST TO THE BRYANT ELECTRIC

COMPANY, CBS CORPORATION, F/K/A VIACOM INC., SUCCESSOR BY MERGER TO CBS

CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, COMPUDYNE

CORPORATION, INDIVIDUALLY, AND AS SUCCESSOR TO YORK SHIPLEY, INC, CRANE CO,

CROSBY VALVE LLC, DAP, INC, DOMCO PRODUCTS TEXAS, INC, EATON CORPORATION,

INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO CUTLER-HAMMER, INC, FLOWSERVE US,

INC. INDIVIDUALLY AND SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD

VALVE, INC., NORDSTROM VALVES, INC., EDWARD VOGT VALVE COMPANY, AND VOGT VALVE

COMPANY, FMC CORPORATION, ON BEHALF OF ITS FORMER CHICAGO PUMP & NORTHERN

PUMP BUSINESSES, FORT KENT HOLDINGS, INC., FORMERLY KNOWN AS DUNHAM-BUSH, INC,

GARDNER DENVER, INC, GENERAL ELECTRIC COMPANY, GENUINE PARTS COMPANY, TRADING

AS NAPA AUTO PARTS, GOULDS PUMPS LLC, GRINNELL LLC, HONEYWELL INTERNATIONAL,

INC., F/K/A ALLIED SIGNAL, INC./BENDIX, IMO INDUSTRIES, INC, ITT LLC., INDIVIDUALLY AND AS

SUCCESSOR TO BELL & GOSSETT AND AS SUCCESSOR TO KENNEDY VALVE MANUFACTURING

CO., INC, KAISER GYPSUM COMPANY, INC, KEELER-DORR-OLIVER BOILER COMPANY, LEVITON

MANUFACTURING CO., INC, MANNINGTON MILLS, INC, MORSE TEC LLC, PEERLESS

INDUSTRIES, INC, PFIZER, INC. (PFIZER), PNEUMO ABEX LLC, SUCCESSOR IN INTEREST TO

ABEX CORPORATION (ABEX), RHEEM MANUFACTURING COMPANY, SCHNEIDER ELECTRIC

USA, INC. FORMERLY KNOWN AS SQUARE D. COMPANY, SIEMENS INDUSTRY, INC.,

SUCCESSOR IN INTEREST TO SIEMENS ENERGY & AUTOMATION, INC, THE B.F. GOODRICH

COMPANY, (GOODRICH CORPORATION), U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE

CORPORATION, WEIL-MCLAIN, A DIVISION OF THE MARLEY-WYLAIN COMPANY, A WHOLLY

OWNED SUBSIDIARY OF THE MARLEY COMPANY, LLC, Defendant.

Index No. 190063/2020, Motion Seq. No. 003.

November 21, 2023.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

It is ordered that the instant motion for summary judgment seeking dismissal of this action, pursuant to CPLR §3212, is decided in accordance with the decision below.

Here, defendant DAP, Inc. k/n/a La Mirada Products Co., Inc. ("DAP") moves for summary judgment to dismiss this action on the basis that plaintiff-decedent, Jose Munoz's (Mr. Munoz) claim is "speculative" because not all DAP caulks historically

contained asbestos, no DAP plaster product contained asbestos, and that plaintiff's causation for mesothelioma is insufficient. See Memorandum of Law in Support of Defendant DAP, Inc. k/n/a La Mirada Products Co., Inc.'s Motion for Summary Judgment, p. 2-4. Plaintiff opposes, noting that moving defendant offers no evidence proving that its products could not have caused Mr. Munoz's mesothelioma, highlighting plaintiff's deposition testimony specifically recalling asbestos dust from defendant DAP's products, and noting their expert evidence regarding causation. See Affirmation in Opposition to Defendant DAP, Inc.'s Motion for Summary Judgment, p. 2-4. Defendant replies, highlighting the affidavit from their corporate representative, and reiterating the different formulations of their caulk products.

The Court notes that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See id. at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 (1st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1st Dep't 1990). The court's role is "issue-finding, rather than issue-determination". Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations omitted).

As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. See Ugarriza v Schmieder, 46 NY2d 471, 475-476 (1979). Furthermore, the Appellate Division, First Department has held that on a motion for summary judgment, it is moving defendant's burden "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 Dep't 1995). In support of its motion, defendant DAP relies heavily upon an affidavit from a former DAP employee, Ward Treat, to establish that "[b]y the end of 1978, DAP no longer manufactured or sold any products that contained asbestos." See Memorandum of Law in Support, supra, Exh. B, Affidavit of Ward Treat dated March 1, 2011, ¶ 17. Mr. Treat does not possess the requisite personal knowledge to establish that no DAP products containing asbestos were in circulation and used by Mr. Munoz. Furthermore, the affidavit fails to address DAP plaster, and rather, it confirms that some formulations of DAP caulk contained asbestos. Given the unequivocal testimony of Mr. Munoz, sufficient issues of fact exist to preclude summary judgment. See Affirmation in Opposition, supra.

As to causation, DAP's expert affidavit from Robert C. Adams, CIH, CSP, FAIHA, is not case-specific and forms no opinions based on Mr. Munoz's actual exposure and work timeline. See Memorandum of Law in Support, supra, Exh. J, Affidavit of Robert C. Adams, CIH, CSP, FAIHA, dated November 24, 2020. This is plainly insufficient to meet defendant's burden at summary judgment. Contrarily, plaintiff's expert, David Zhang, specifically reviewed Mr. Munoz's exposure and occupational history to provide causation analysis. See Affirmation in Opposition, supra, Exh. 15, Report and Affidavit of Daivd Y. Zhang, MD, PhD, MPH, dated September 17, 2020.

Moreover, the appropriate standard at summary judgment for defendant DAP can be found in Dyer v Amchem Products Inc., 207 AD3d 408, 40 (1st Dep't 2022). In Dyer, defendants were granted summary judgment not by "simply argu[ing] that plaintiff could not affirmatively prove causation" but by "affirmatively prov[ing], as a matter of law, that there was no causation." Id. Here, defendant DAP fails to meet their burden on summary judgment as set forth in Dyer. As a reasonable juror could decide that asbestos exposure from DAP products was a contributing cause of Mr. Munoz's illness, sufficient issues of fact exist to preclude summary judgment.

Accordingly, it is

ORDERED that defendant DAP's motion for summary judgment is denied in its entirety; and it is further ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this Decision/Order with notice of entry. This constitutes the Decision/Order of the Court.

Sources

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