O'connor v. Aerco International, Inc. (2017)

Our plain-English summary of O'connor v. Aerco International, Inc. (New York Supreme Court, Appellate Division, July 6, 2017).

Eileen O'Connor was diagnosed with pleural mesothelioma in February 2015. She and her husband, who sued derivatively, claimed her illness came from exposure to asbestos-containing equipment while she worked at the Westchester County Department of Labs and Research from about 1975 to 1979. They sued several defendants, including three laboratory supply companies: Fisher Scientific, Thomas Scientific and VWR International. Supreme Court granted each company summary judgment, finding the plaintiffs had not shown which defendant supplied the asbestos-containing products. The Appellate Division, Third Department, reversed. It held that the companies had to show first that their products could not have contributed to her illness, and that pointing to gaps in the plaintiffs' proof did not meet that burden. Employees testified that asbestos-containing products were in the lab, that staff ordered from the defendants' catalogs, and that the lab bought supplies from them regularly. Fisher's lack of 1970s sales records did not show it made no sales. VWR also offered no proof on specific causation. The motions were denied.

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, 3rd Dept.
• Decided: July 6, 2017
• Citation: 152 A.D.3d 841
• Stage: Appeal from summary judgment
• State: New York

Outcome. The Appellate Division reversed the three orders that had granted summary judgment to Fisher Scientific, Thomas Scientific and VWR International, and denied their motions, so the plaintiffs' claims against them continue.

What the court held. A defendant seeking summary judgment in an asbestos case must first show its products could not have contributed to the plaintiff's illness; pointing to gaps in the plaintiff's proof is not enough. At summary judgment the defendant also bears the initial burden on specific causation (Parker).

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

Why this case is relevant

In this decision, the Appellate Division, Third Department, reversed orders that had dismissed claims against three laboratory supply companies. Applying earlier decisions, it held that a defendant seeking summary judgment in an asbestos case must first show that its products could not have contributed to the plaintiff's illness, and that pointing to gaps in the plaintiff's proof did not meet that burden. It also held that a defendant raising specific causation at summary judgment had the initial burden to show the plaintiff lacked enough exposure to its products. A supplier's lack of 1970s sales records did not prove it made no sales.

In the citing passages available, later courts mostly cite it for that burden rule. The Appellate Division quoted it in 2023 for the defendant's initial burden. Many New York Supreme Court decisions in asbestos cases list it alongside earlier rulings when requiring a defendant to unequivocally establish either no exposure to its product or exposure too low to contribute to the illness. One relied on it in rejecting a defendant's attempt to "point to gaps" in the plaintiffs' evidence.

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

• Eileen A. O'Connor: pleural mesothelioma

The defendants

• Fisher Scientific Company, LLC (supplier)
• Thomas Scientific, Inc. (supplier)
• VWR International, LLC (supplier)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Mtr OF Nyc Asbestos Litig. (New York Supreme Court, Appellate Division, 1st Dept., 2017). The Appellate Division affirmed the judgment for Ford Motor Company, upholding the trial court's order setting aside the jury's verdict for plaintiff Mary Juni, and dismissed the appeal from the order as subsumed in the appeal from the judgment.
• Wells v. 3M Co. (New York Supreme Court, Appellate Division, 3rd Dept., 2016). The Appellate Division reversed the Supreme Court's order granting summary judgment to defendants Genuine Parts Company and National Automotive Parts Association, and denied their motion, so plaintiff Linda Wells's claim survives.
• 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

47 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• Srica 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 to dismiss the plaintiffs' complaint and all cross-claims, finding fact issues on general and specific causation.
• Young v. Whittaker, Clark & Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The trial court denied defendant Whittaker, Clark & Daniels' motion for summary judgment, so plaintiffs Kim and J.C. Young's claims, including punitive damages, proceed to trial.
• Young v. Avon Prods. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court granted Avon Products' summary judgment motion only as to the conspiracy and loss of consortium claims, which were dismissed, and denied it on causation and punitive damages, so the plaintiffs' claims proceed to trial.
• Surace v. American Biltrite (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The trial court denied American Biltrite, Inc.'s motion for summary judgment dismissing the Surace plaintiffs' complaint and all cross-claims, finding fact issues on general and specific causation.
• Epstein v. Exxon Mobil Corp. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court applied Texas's causation standard to plaintiffs' claims against Exxon Mobil but denied Exxon's motion for summary judgment, so plaintiffs' claims against Exxon went forward to trial.
• Gallagher 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 the Gallagher plaintiffs' complaint and all cross-claims, so the plaintiffs' claims against it go forward.
• Carlstrand v. Domco Prods. of Texas (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied Domco Products of Texas's motion for summary judgment on causation, so the claims against it continue, but granted it summary judgment dismissing the punitive damages claim against it.
• Djokic v. Steel Grip (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied Steel Grip's summary judgment motion on causation but granted it as to the spousal loss of consortium claim, dismissing Venetia Kontogouris's individual claim; plaintiffs largely prevailed.

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.

152 A.D.3d 841 (2017)

57 N.Y.S.3d 766

2017 NY Slip Op 05487

EILEEN A. O'CONNOR et al., Appellants,

v.

AERCO INTERNATIONAL, INC., etal., Defendants, and

FISHER SCIENTIFIC COMPANY, LLC, etal., Respondents.

Decided July 6, 2017.

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

Appeals (1) from an order of the Supreme Court (Aulisi, J.), entered April 26, 2016 in Saratoga County, which, among other things, granted a motion by defendant Fisher Scientific Company, LLC for summary judgment dismissing the complaint against it, (2) from an order of said court, entered April 26, 2016 in Saratoga County, which, among other things, granted a motion by defendant Thomas Scientific, Inc. for summary judgment dismissing the complaint against it, and (3) from an order of said court, entered April 26, 2016 in Saratoga County, which, among other things, granted a motion by defendant VWR International, LLC for summary judgment dismissing the complaint against it.

Garry, Lynch, Rose and Devine, JJ., concur.

[*842] McCarthy, J.P.

In February 2015, plaintiff Eileen A. O'Connor was diagnosed with pleural mesothelioma. Alleging that her illness stemmed from exposure to equipment containing asbestos while working at the Westchester County Department of Labs and Research (hereinafter WCDLR) from approximately 1975 to 1979, O'Connor, along with her husband, derivatively, commenced this personal injury action in 2015 against, among others, defendants Fisher Scientific Company, LLC, Thomas Scientific, Inc. and VWR International, LLC (hereinafter collectively referred to as defendants). After joinder of issue and discovery, defendants each moved for summary judgment dismissing the complaint and all cross claims against them, contending, among other things, that plaintiffs failed to identify them as the suppliers of the asbestos-containing products in question. Thereafter, in three separate orders, Supreme Court respectively granted defendants' motions for summary judgment dismissing the complaint against them, finding that plaintiffs failed to adequately identify any defendants as the supplier of the asbestos-containing products at issue. Plaintiffs appeal, and we reverse.

In order to establish entitlement to judgment as a matter of law, defendants bore the initial burden of demonstrating that their respective products "could not have contributed to the causation" of O'Connor's asbestos-related injuries (Matter of New York City Asbestos Litig., 116 AD3d 545, 545 [2014]; see Matter of New York City Asbestos Litig., 216 AD2d 79, 80 [1995]). Moreover, a defendant cannot satisfy this burden by merely pointing to gaps in a plaintiff's proof (see Overocker v Madigan, 113 AD3d 924, 925 [2014]; DiBartolomeo v St. Peter's Hosp. of the City of Albany, 73 AD3d 1326, 1327 [2010]; Dow v Schenectady County Dept. of Social Servs., 46 AD3d 1084, 1084 [2007]; Johnson City Cent. School Dist. v Fidelity & Deposit Co. of Md., 272 AD2d 818, 821 [2000]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Stated another way, a defendant [*843] cannot prevail on a motion for summary judgment merely by correctly arguing that the record before a court on the motion would be one which, if presented at trial, "would fail to [satisfy a plaintiff's] burden of proof and the court would be required to direct a verdict for defendant[]" (Yun Tung Chow v Reckitt & Colman, Inc., 17 NY3d 29, 35 [2011, Smith, J., concurring]). Accordingly, plaintiffs' burden to establish a material issue of fact as to "facts and conditions from which [defendants'] liability may reasonably be inferred" is only triggered in the event that a moving defendant made the aforementioned prima facie showing (Matter of New York City Asbestos Litig., 216 AD2d at 80; see Scheidel v A.C. & S., Inc., 258 AD2d 751, 754 [1999], lv denied 93 NY2d 809 [1999]).

In this regard, the proof submitted by defendants, respectively, failed to establish that they did not sell asbestos-containing products to WCDLR during the time that O'Connor was employed or that O'Connor was not exposed to any such products

(compare Pellegrino v A.C. & S., Inc., 15 AD3d 377, 377 [2005]). Defendants submitted plaintiffs' responses to interrogatories, wherein plaintiffs listed the products containing asbestos that O'Connor was exposed to and stated that the products were supplied by defendants, among others. Fisher Scientific, in its response to plaintiffs' interrogatories, stated that, "given the passage of many decades and ... [its] adherence to reasonable and normal record retention policies," it did not have records of selling these products to WCDLR. However, although none of the deponents could attest to whether any of defendants' brand names, trademarks or logos were present on asbestos-containing products during the relevant time period, O'Connor and other WCDLR employees testified that there were products containing asbestos in the lab between 1975 and 1979 and that employees consulted defendants' supply catalogs, among others, to place orders for these products. One employee also testified that WCDLR had contracts with Fisher Scientific and Thomas Scientific during the relevant time period, and a buyer for WCDLR from 1972 to 1978 testified that he purchased supplies from defendants on a regular basis.

Viewing this evidence in the light most favorable to plaintiffs and granting them the benefit of every favorable inference, defendants failed to establish, prima facie, that they could not have caused O'Connor's asbestos-related illness (see Wells v 3M Co., 137 AD3d 1556, 1559 [2016]; Matter of New York City Asbestos Litig., 212 AD2d 463, 464 [1995]). Fisher Scientific's lack of documentation from the 1970s does not establish that it did not sell asbestos-containing products to WCDLR. Otherwise, [*844] defendants, respectively, "merely pointed to perceived gaps in plaintiff[s'] proof, rather than submitting evidence showing why [plaintiffs'] claims fail" (Ricci v A.O. Smith Water Prods. Co., 143 AD3d 516, 516 [2016]; see Koulermos v A.O. Smith Water Prods., 137 AD3d 575, 576 [2016]). Additionally, insofar as VWR also contends, as an alternative ground for affirmance, that it was entitled to summary judgment because plaintiffs failed to show specific causation pursuant to the test established in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]), VWR failed to make a prima facie showing contradicting specific causation. While Parker and its progeny address a plaintiff's burden to establish specific causation at trial through admissible scientific proof (see Dominick v Charles Millar & Son Co., 149 AD3d 1554, 1555-1556 [2017]; Matter of New York City Asbestos Litig., 148 AD3d 233, 236 [2017]), at the summary judgment stage, VWR had the initial burden of establishing that O'Connor lacked the necessary degree of exposure to its asbestos-containing products to cause her illness, and VWR offered no such proof (compare Zaslowsky v J.M. Dennis Constr. Co. Corp., 26 AD3d 372, 374 [2006]). Accordingly, defendants' motions should have been denied (see Matter of New York City Asbestos Litig., 146 AD3d 700, 700 [2017]; Koulermos v A.O. Smith Water Prods., 137 AD3d at 576; Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 [1995]).

Ordered that the orders are reversed, on the law, with costs, and motions denied.

Sources

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