Pendolino v. Air & Liquid Sys. Corp. (2015)

Our plain-English summary of Pendolino v. Air & Liquid Sys. Corp. (New York Supreme Court, March 23, 2015).

John Pendolino and his wife Nancy sued several companies over his mesothelioma, an asbestos-related cancer. Mr. Pendolino, who has since died, worked as a machinist's helper aboard the battleship USS Iowa at the Brooklyn Navy Yard from November 1941 to October 1942. He said he was present in the boiler rooms while other trades insulated equipment, including pumps, with asbestos insulation. He did not identify any pump as made by The Nash Engineering Company. Nash moved for summary judgment. The plaintiffs offered a magazine printout, a 2005 affidavit from a retired Navy engineer, and a 1982 report placing Nash pumps on the USS New Jersey. The court found these insufficient. The affidavit was uncross-examined hearsay that discussed Viking pumps, and the records it cited were not submitted. The 1982 report did not show Nash pumps were on the USS Iowa forty years earlier. Nothing showed the pumps were insulated or had asbestos parts. The court granted Nash's motion and dismissed the claims against it. The case continued against the other 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: March 23, 2015
• Citation: 2015 NY Slip Op 30519(U)
• Docket: Docket No. 190320/13, Motion Seq. 004
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The trial court granted Nash Engineering Company's motion for summary judgment and dismissed the plaintiffs' claims and all cross-claims against Nash, because plaintiffs did not show exposure to asbestos from a Nash pump; the case continued against the other defendants.

What the court held. In asbestos cases a plaintiff must show actual exposure to asbestos from the defendant's product, which may be done with circumstantial evidence, but the link between the plaintiff and the product cannot rest on conjecture.

Issues decided: Expert Testimony, Product Identification.

The people and their exposure

• John Pendolino: mesothelioma; died

The defendants

• The Nash Engineering Company (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Kreppein v. Celotex Corp. (U.S. Court of Appeals, Second Circuit, 1992). The Second Circuit affirmed the judgment holding Celotex liable for 32.5% of the damages to Mary Kreppein, rejecting Celotex's challenges on product nexus, apportionment and the amended complaint, and denied plaintiff's request for sanctions.

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.

2015 NY Slip Op 30519(U)

JOHN PENDOLINO and NANCY PENDOLINO, Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORP., etal., Defendants.

Docket No. 190320/13, Motion Seq. 004.

March 23, 2015.

Supreme Court, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge.

In this asbestos personal injury action, defendant The Nash Engineering Company ("Nash") moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims asserted against it on the ground that plaintiff has not identified any Nash product as a source of his injuries.[1] Plaintiffs oppose Nash's motion, arguing that there is enough circumstantial evidence to raise a triable issue of fact whether Mr. Pendolino was exposed to asbestos from Nash pumps. For the reasons set forth below, Nash's motion is granted.

John Pendolino, who is now deceased,[2] worked as a machinist's helper from November of 1941 through October of 1942 aboard the battleship USS Iowa, which at the time was docked at the Brooklyn Navy Yard. Plaintiffs allege that Mr. Pendolino was exposed to asbestos inside that ship's boiler room and that such exposure contributed to his injuries. Mr. Pendolino was deposed on October 9, 2013.[3] It is undisputed that he did not specifically identify any Nash pump as a source of his asbestos exposure. Still, he testified that he was present while other trades insulated equipment with asbestos insulation, including pumps (Deposition pp. 136-139, 148-150), and that this work occurred primarily in the ship's boiler rooms (Deposition pp. 66-69).

CPLR 3212(b) provides that a motion for summary judgment shall be granted if "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." In asbestos-related litigation, should the defendant establish its prima facie entitlement to judgment as a matter of law by demonstrating the absence of material issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), the plaintiff must then demonstrate that there was actual exposure to asbestos fibers released from the defendant's product. Cawein v Flintkote Co., 203 AD2d 105, 106 (1st Dept 1994).

The plaintiff may meet this burden through the use of circumstantial evidence. Schneider v Kings Highway Hospital Center, Inc., 67 NY2d 743, 744, (1986) (quoting Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 (1938) ("To establish a prima facie case of negligence based wholly on circumstantial evidence, `[it] is enough that [plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.'"). However, there must be a sufficient link between the plaintiff and the defendant's product (see Kreppein v Celotex Corp., 969 F2d 1424, 1426 [2d Cir 1992]) which cannot be established through conjecture. Roimesher v Colgate Scaffolding Equip. Corp., 77 AD3d 425, 426 (1st Dept 2010).

The defendant's prima facie case is Mr. Pendolino's failure to identify Nash as the manufacturer of any of the pumps at issue. In response, plaintiffs submit three documents which purportedly demonstrate the presence of Nash pumps aboard the USS Iowa during the relevant time period.[4]

Nash does not take issue with plaintiffs' exhibit B, a magazine printout[5] indicating that the USS Iowa, USS New Jersey, USS Missouri, and USS Wisconsin composed the Iowa class of World War II battleships. Plaintiffs' exhibit C, which Nash asks the court to disregard in its entirety, is a 2005 affidavit from retired Navy engineer Charles Watson who states that, based on his review of Navy records, that the USS Iowa, USS New Jersey, USS Wisconsin, and two other ships "would

have used the same pumps". Nash also disputes the relevance of plaintiffs' exhibit D, a 1982 report prepared by American Systems Engineering which provides that there were Nash "Fresh Water Priming Pumps" located aboard the USS New Jersey.

Plaintiffs' reliance on these documents is misplaced. The Watson affidavit was prepared almost 10 years ago, most likely in connection with another case. It constitutes uncross-examined hearsay, and specifically discusses Viking pumps rather than Nash pumps. Also, while Mr. Watson avers that the Navy records he reviewed in reaching his conclusions were annexed to his affidavit as exhibits, such records have not been submitted herein. The engineering report is even less persuasive. The mere fact that Nash pumps may have been present aboard the USS New Jersey in 1982 does not, even in light of plaintiffs' other submissions, establish that they were also installed on the USS Iowa forty years earlier. Finally, there is nothing to show that such pumps would have been insulated or that they utilized asbestos-containing components. In light of the foregoing, the court finds the alleged nexus between Mr. Pendolino and asbestos-containing Nash pumps is tenuous, at best. In other words, the defendant's liability could only be determined via surmise, not reasonable inferences logically drawn from the evidence.

Accordingly, it is hereby

ORDERED that The Nash Engineering Company's motion for summary judgment is granted; and it is further ORDERED that this action and any cross-claims against Nash are severed and dismissed; and it is further ORDERED that the remainder of this action shall continue as against the remaining defendants; 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. Pendolino had been diagnosed with mesothelioma, an asbestos-related cancer.

[2] Mr. Pendolino denied on April 26, 2014.

[3] A copy of Mr. Pendolino's deposition transcript is submitted as defendant's exhibit A ("Deposition"). [4] See, e.g., plaintiffs' exhibits B-D.

[5] Exhibit B is purported to be a printout from a publication called "Jane's Fighting Ships".

Sources

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