Niedert v. Amchem Prods., Inc. (2022)

Our plain-English summary of Niedert v. Amchem Prods., Inc. (New York Supreme Court, December 13, 2022).

Edith Niedert sued a number of companies, including The Goodyear Tire & Rubber Company, claiming she was exposed to asbestos by laundering her husband Paul Niedert's work clothes. From 1956 to 1993 he worked as a plumber and steamfitter, removing and installing Goodyear gaskets and gasket materials. She said asbestos dust covered his clothes, which he wore home, and that she washed them two to three times a week. She was diagnosed with lung cancer on July 19, 2017. Goodyear asked for summary judgment. It argued that her exposure from handling the clothes was too small to cause her cancer and that smoking was the cause. It relied on an industrial hygienist and a pulmonary physician. The court denied the motion. Goodyear's hygienist offered a general dose reconstruction and no study of her specific exposure. Her side's expert evidence conflicted with Goodyear's physician on whether asbestos causes lung cancer. The court treated this as a battle of experts for a jury and held Goodyear had not met its initial burden.

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: December 13, 2022
• Citation: 2022 NY Slip Op 34232(U)
• 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• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.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 plaintiff Edith Niedert's claim against Goodyear continues.

What the court held. A summary judgment movant must first make a prima facie showing on causation; a general dose-reconstruction analysis that does not address the plaintiff's specific exposure, together with a competing expert view on asbestos and lung cancer, leaves a factual dispute for a jury.

Issues decided: Causation, Expert Testimony, Take-Home Exposure.

The people and their exposure

• Edith Niedert (family member): lung cancer

The defendants

• The Goodyear Tire & Rubber Company (manufacturer)

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.

2022 NY Slip Op 34232(U)

EDITH NIEDERT, Plaintiff,

v.

AMCHEM PRODUCTS, INC., AURORA PUMP COMPANY, BLACKMER, BURNHAM, LLC,

CERTAINTEED CORPORATION, CONSOLIDATED EDISON COMPANY, CRANE CO., GENERAL

ELECTRIC COMPANY, GEORGIA PACIFIC LLC (DELAWARE), GEORGIA PACIFIC LLC (NORTH

CAROLINA), GEORGIA PACIFIC LLC, GOODYEAR CANADA, INC, GOULDS PUMPS LLC, ITT LLC.,

KEELER-DORR-OLIVER BOILER COMPANY, OWENS-ILLINOIS, INC, PFIZER, INC. (PFIZER), THE

GOODYEAR TIRE AND RUBBER COMPANY, U.S. RUBBER COMPANY (UNIROYAL), UNION

CARBIDE CORPORATION, Defendant.

Index No. 190311/2017, Motion Seq. No. 001.

December 13, 2022.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 86, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 111 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER.

Upon the foregoing documents, it is hereby ordered that Defendant The Goodyear Tire & Rubber Company's (hereinafter referred to as "Goodyear") motion for summary judgment is denied for the reasons set forth below.

The instant matter is premised upon Plaintiff Edith Niedert's alleged exposure to asbestos as a result of laundering her husband, Paul Niedert's clothing. From 1956 to 1993, Mr. Niedert worked as a plumber and a steamfitter, tasked with removing and installing Goodyear gaskets and gasket materials. Plaintiff's response to interrogatories state that asbestos dust would cover Mr. Niedert's clothes from work, which he would wear home. Mrs. Niedert would then launder his clothes approximately two to three times a week. Plaintiff was subsequently diagnosed with lung cancer on July 19, 2017. Goodyear moves for summary judgment, arguing, inter alia, that Plaintiff's exposure from handling Mr. Niedert's clothing was so insignificant that it did not contribute or cause Plaintiff's lung cancer. Goodyear also argues that Plaintiff's smoking history was the cause of her lung cancer. Plaintiff opposes, arguing that Goodyear has failed to meet their prima facie burden on causation that exposure to Goodyear's gaskets and gasket containing materials could not have resulted in Plaintiff's diagnosis. Goodyear replies.

Pursuant to CPLR 3212(b), a motion for summary judgment, "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." "[T]he 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 demonstrate the absence of any material issues of fact. This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. If the moving party meets this burden, the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action". Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824, 833 (2014) (internal citations and quotations omitted). "The moving party's `[f]ailure to make [a] prima fade showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers'". Vega v Restani Constr. Corp., 18 NY3d 499, 503 (2012) (internal emphasis omitted).

First, Goodyear argues that industrial hygienist Mr. John Spencer demonstrates Plaintiff's para-occupational exposure to asbestos was insignificant to cause Plaintiff's illness. More specifically, "[t]he airborne asbestos concentrations for a person that handles the clothes of a person who works with asbestos are 0.2% to 1.4% of the daily 8-hr [time weighted average] of

the worker." Memorandum Of Law In Support Of Defendant The Goodyear Tire & Rubber Company's Motion For Summary Judgment, p. 6 (internal emphasis omitted). Conversely, Plaintiff argues that "industrial hygienist, John Spencer ... [relies] on skewed interpretations of the facts and cherry-picked studies that fail to meet Defendant's prima facie burden and, at most, create conflicts with Plaintiffs' causation evidence that must be resolved by a jury." Plaintiffs' Affirmation In Opposition To Defendant, The Goodyear Tire & Rubber Company's, Motion For Summary Judgment, p. 14, ¶ 29 (internal emphasis omitted). In Dyer v Amchem Products Inc., 207 AD3d 408, 411 (1st Dept 2022), the Appellate Court held that defendant therein met its burden on summary judgment by, inter alia, proffering an industrial hygiene expert as a witness who tendered a study regarding decedent's exposure to asbestos, which "involved a worker and a helper who cut, scored/snapped Amtico tiles in an isolation test chamber, simulating an eight-hour `shift' ... Based upon the results of the 2007 EPI study and their review of other materials, publications and decedent's deposition, [Defendant]'s experts concluded that the decedent's time weighted average exposure to chrysotile asbestos was below the OSHA eight-hour permissible exposure limit (PEL) of 0.1 f/cc, and also indistinguishable from 0.00000033 f/cc the lifetime cumulative exposure that the general public is exposed to in the ambient air that we all breathe." Unlike the case at bar, the study relied upon by the defendants in Dyer established specific levels of respirable asbestos with regards to the specific moving defendant's product in the specific work environment of the plaintiff at issue. Goodyear has proffered no study that demonstrates Plaintiff's specific exposure levels. Instead, Mr. Spencer's analysis "was performed in accordance with the NIOSH 7400 method of analysis by phase contact microscopy." Affidavit of John Spencer, CIH, CSP, dated Nov. 22, 2021, Exh A, Summary Report Of John Spencer dated December 16, 2020, p. 17. Mr. Spencer attests that his evaluations were based on asbestos containing gaskets which were fabricated, removed, and installed through the methods of the average tradesmen. See Id. Mr. Spencer's conclusions are based solely on dose reconstruction without regard to Plaintiff's specific circumstances which exposed her to ultra-carcinogenic asbestos fibers.

Furthermore, Goodyear argues that Plaintiff's lung cancer was caused by her smoking history, and not by her alleged exposure to asbestos. Namely, Goodyear relies upon Dr. Robert Sussman, a physician who is board certified in pulmonary medicine, who opines that "smoking is far and away the greatest risk for the development of lung cancer, accounting for 87% of all lung cancers." Memorandum Of Law In Support, supra, at p. 7. Conversely, Plaintiff argues that Goodyear attempts to shift the responsibility to Plaintiff for her lung cancer by digressing from the standard of specific causation. The Court of Appeals in Parker v Mobil Oil Corp., 7 NY3d 434, 448 (2006), held that "[i]t is well-established that an opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)". Furthermore, "[t]he mere fact that other persons share some responsibility for plaintiffs harm does not absolve defendant from liability because there may be more than one proximate cause of an injury". Mazella v Beals, 27 NY3d 694, 706 (2016) (internal quotations omitted). Therefore, Plaintiff's smoking history does not negate that asbestos is an ultra-carcinogenic substance that is capable of causing mesothelioma. Further, Dr. Sussman opines that "[a]s a general rule, asbestos exposure is only a risk factor for lung cancer in the setting of asbestosis." Affidavit Of Robert Sussman, M.D., November 19, 2021, Exh. A, Report Of Dr. Robert Sussman, dated November 5, 2021, p. 10. However, Plaintiff relies upon Dr. Steven Markowitz's article Asbestos-Related Lung Cancer and Malignant Mesothelioma of the Pleura: Selected Current Issues, which recognizes asbestos as a human lung carcinogen. See Affirmation In Opposition, supra, at p. 24, ¶ 56. Here, triable issues of fact exist, as the "nonmovant's expert... squarely opposes ... the moving parties' expert, [in which] the result is a classic battle of the experts that is properly left to a jury for resolution". Mason v Adhikary, 159 AD3d 1438, 1439 (4th Dept 2018) (internal quotations omitted). As Goodyear has failed to meet its initial burden, Goodyear's motion is denied. Accordingly, it is

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

ORDERED that, within 21 days of entry, plaintiffs shall serve a copy of this decision/order upon all parties, together 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