Sargent v. Paccar, Inc. (2020)

Our plain-English summary of Sargent v. Paccar, Inc. (New York Supreme Court, August 24, 2020).

Merritt Sargent, about 84, was diagnosed with mesothelioma in March 2019. He and Carol Sargent sued PACCAR Inc., maker of Peterbilt trucks, among other defendants. Mr. Sargent said he was exposed to visible asbestos brake dust while supervising State-employed truck inspectors for the U.S. Department of Transportation. He said he was present at brake inspections of Peterbilt tractor-trailers between 1988 and 2000. PACCAR moved for summary judgment. It argued that Mr. Sargent had no personal knowledge that Peterbilt brakes contained asbestos. It also offered an affidavit saying it stopped using asbestos brakes in 1987. Mr. Sargent testified that he believed the brakes were original manufacturer equipment. The court held that PACCAR had not met its initial burden, because a defendant cannot succeed just by pointing to gaps in the plaintiff's proof. It added that even PACCAR's materials would show credibility and fact disputes that cannot be resolved on summary judgment. The motion was 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, Albany
• Decided: August 24, 2020
• Citation: 2020 NY Slip Op 35080(U)
• Docket: Docket No. Index No. 902392-19, RJI No. 01-19-131637
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied PACCAR Inc.'s (Peterbilt's) motion for summary judgment dismissing the Sargent plaintiffs' complaint and cross claims, finding the defendant did not meet its initial burden and that fact issues remained.

What the court held. A defendant seeking summary judgment in an asbestos case must first show its product could not have contributed to the plaintiff's injury; pointing to gaps in the plaintiff's proof is not enough, and the plaintiff's burden arises only after that showing.

Issues decided: Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Merritt Sargent: mesothelioma

The defendants

• PACCAR, Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Krok v. The Nash Engineering Co. (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2017). The Appellate Division, First Department, unanimously affirmed the trial court's denial of Nash Engineering Company's motion for summary judgment, so the plaintiff estate's claim against Nash continued.
• Diedrich v. Robert A. Keasbey Co. (IN the Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2004). The Appellate Division affirmed the denial of summary judgment to Robert A. Keasbey Company, so the executrix's claims go to trial.

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.

2020 NY Slip Op 35080(U)

MERRITT SARGENT and CAROL SARGENT, Plaintiffs,

v.

PACCAR, INC., etal., Defendants.

Docket No. Index No. 902392-19, RJI No. 01-19-131637.

August 24, 2020.

Supreme Court, Albany County.

James Y. Lee, Esq., Hawkins Parnell, New York, New York, Attorney for PACCAR, INC.

Seth A. Dymond, Esq., Belluck & Fox, New York, New York, Attorney for Plaintiffs.

DECISION & ORDER

RICHARD T. AULISI, Judicial Hearing Officer.

The plaintiffs commenced the within action to recover damages for personal injuries allegedly incurred by Merritt Sargent, resulting from his exposure to asbestos containing products. The plaintiffs commenced this action on April 24, 2019, by filing a summons and complaint in the Albany County Clerk's Office. Issue was subsequently joined, and discovery has been conducted pursuant to an expedited schedule. This matter had been scheduled for trial commencing May 5, 2020, but was adjourned due to the closure of the Courts resulting from the COVID-19 virus.

The defendant, PACCAR INC., (Peterbilt or Defendant), has now made a motion for summary judgment, dismissing the plaintiffs' complaint and all cross claims asserted against it, pursuant to CPLR § 3212. The defendant seeks summary judgment on the theory that the plaintiffs have failed to adequately identify it as a source of any asbestos containing materials to which the plaintiff, Merritt Sargent, was allegedly exposed. More specifically, the defendant claims that Mr. Sargent had no personal knowledge as to whether the Peterbilt trucks he inspected contained asbestos. Mr. Sargent is approximately 84 years of age and was diagnosed with mesothelioma in March of 2019. He alleges that he developed mesothelioma as a result of his exposure to asbestos from his work supervising State-employed truck inspectors, while he was employed by the United States Department of Transportation. For the purpose of the within motion for summary judgment, Mr. Sargent alleges that he was regularly present during brake inspections of Peterbilt tractor-trailers, between 1988 and 2000. Mr. Sargent asserts that he was exposed to visible asbestos brake dust from these inspections. The defendant readily acknowledges the fact that Mr. Sargent recalled numerous brake inspections taking place in his presence on Peterbilt trucks. The defendant, however, relies extensively upon Mr. Sargent's deposition testimony where he stated that he did not have "personal knowledge whether any of the brakes on a Peterbilt tractor contained asbestos".[1] The defendant asserts that in light of this admission by Mr. Sargent, there is no identification of an asbestos containing product which is attributable to the defendant and, as such, it is entitled to summary judgment. As an alternative ground for summary judgment, the defendant has submitted an affidavit from its corporate representative, Rodney F. Curbo. Mr. Curbo states in his affidavit that the defendant stopped utilizing asbestos brakes in its trucks in 1987. The plaintiff began conducting his supervision of brake inspections in 1988, thus the defendant argues that there would not have been any asbestos containing brakes which the plaintiff would have encountered.

A 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 issue of fact (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]). In the context of an asbestos case, the defendant bears the initial burden of demonstrating that its respective products "could not have contributed to the causation" of Mr. Sargent's 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]). "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]). To that end, "plaintiffs' burden to establish a material issue of fact as to `the

facts and conditions from which [defendant's] liability may reasonably be inferred' is only triggered in the event that a moving defendant made the aforementioned prima facie showing" (Id. quoting Matter of New York City Asbestos Litig., 216 AD2d at 80).

The Court also notes that since this is a summary judgment motion, it must view the evidence in a light most favorable to the non-moving party, drawing all reasonable inferences in favor of the non-moving party (see Salerno v Garlock, Inc., 212 AD2d 463, 464 [1st Dept 1995]; Greco v Boyce, 262 AD2d 734 [3d Dept 1999]).

In response to the defendant's summary judgment motion, plaintiffs rely upon the deposition testimony of Mr. Sargent. Mr. Sargent testified that after he left the military, he began taking classes and eventually he was awarded a Master's Degree from College of Saint Rose. For the purpose of the within motion, Mr. Sargent testified about his extensive history in the trucking industry, which encompassed many different facets of the industry. In fact, during the depositions, plaintiffs' counsel moved to have Mr. Sargent deemed an expert in the field. Mr. Sargent testified in detail as to how he believed he was exposed to asbestos containing materials from, his supervision of brake systems inspections on the defendant's trucks.[2] Mr. Sargent also testified that he believed that the brake system inspections he was overseeing involved original equipment supplied by the manufacturer.[3] In light of the injured plaintiff's identification of a product allegedly supplied by the defendant, the movant bore the initial burden of demonstrating that their respective product could not have contributed to the causation of Mr. Sargent's asbestos-related injuries (O'Connor v Aerco International, Inc., 152 Ad 3d 841, 842 [3rd Dept. 2017]).

A moving defendant cannot meet its initial burden of proof on a summary judgment motion by merely pointing to gaps in plaintiff's proof. Rather, the moving party must submit sufficient evidence showing why plaintiff's claim must fail. (Krok v Aercto International. Inc., 146 AD 3d 700 [1st Dept. 2017]); (Ricci v A.O. Smith, 143 AD 3d 516 [1st Dept. 2016]); (Koulermos v A.O. Smith, 137 AD 3d 575, 576 [1st Dept. 2016]); (Torres v Industrial Container, 305 AD 2d 136 [1st Dept. 2003])

A plaintiff can successfully defeat a summary judgment motion by raising a material issue of fact and, once again, when this standard is applied to asbestos litigation, it has been held that plaintiff need not show the precise causes of his damages, but only facts and conditions from which defendant's liability may be reasonably inferred. (Lloyd v. W.R. Grace & Co., 215 AD2d 177 [1st Dept. 1995]); also see (In Re New York City Asbestos Litigation v. A.C. & S., 7 AD3d 285 [1st Dept. 2004]); (In Re Eighth Judicial District Asbestos Litigation v. Amchem Products., Inc., 32 AD3d 1268 [4th Dept. 2006]). It is apparent to the Court that the moving defendant has not met its initial burden of proof. The Court also notes that, even if the Court were to consider the materials submitted by the defendant in support of the motion, it would simply highlight the fact that there are material issues of credibility and fact which cannot be resolved in the context of a summary judgment motion (Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]).

Upon reviewing the record before it, the Court finds that there is a material issue of fact concerning the liability of the defendant, PACCAR INC., with respect to the asbestos containing products that allegedly contributed to Merritt Sargent's injury.

The defendant's motion for summary judgment dismissing the plaintiffs' complaint is denied, without costs. This writing shall constitute the Decision and Order of this Court.

[1] Plaintiff's Dep. Pages 141-142

[2] Plaintiff's Dep. Pages 135-136

[3] Plaintiff's Video Dep. Pages 47-48

Sources

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