Sason v. Dykes Lbr. Co. (2023)

Our plain-English summary of Sason v. Dykes Lbr. Co. (New York Supreme Court, July 21, 2023).

Raphael Sason sued Dykes Lumber Company and many other companies over the illness of Uziel Sason, who had peritoneal mesothelioma. The opinion says Dykes Lumber products used by Mr. Sason contained chrysotile asbestos, and it mentions wood putty made by the Durham Company. Dykes Lumber asked for summary judgment, arguing the plaintiff could not prove causation. It relied on two experts: a pathologist who said chrysotile does not cause peritoneal mesothelioma, and an industrial hygienist who calculated that Mr. Sason's total exposure was too low to contribute to his illness. The court denied the motion. It held that Dykes Lumber used the wrong standard, which comes from a case about overturning a jury verdict, and that a defendant must affirmatively prove its product could not have contributed to the disease. The plaintiff's expert disagreed about chrysotile and said the calculated exposure exceeded levels known to cause mesothelioma. The hygienist's exposure estimate for the putty rested on one newsletter with no methodology details. The court found these disputes raised factual questions 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: July 21, 2023
• Citation: 2023 NY Slip Op 32526(U)
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied defendant Dykes Lumber Company's motion for summary judgment on causation, so plaintiff's claim against it continues.

What the court held. On summary judgment a defendant must affirmatively prove, as a matter of law, that its product could not have contributed to the plaintiff's disease; the Nemeth post-trial standard does not apply, and conflicting expert evidence raises a triable issue of fact.

Issues decided: Causation, Expert Testimony.

The people and their exposure

• Uziel Sason: peritoneal mesothelioma

Who	Work	Where	When	Products
Uziel Sason				Durham Company Wood Putty, Dykes Lumber products

The defendants

• Dykes Lumber Company, Inc. (supplier)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Nemeth v. Brenntag N. Am. (New York Court of Appeals, 2022). The Court of Appeals reversed the Appellate Division and dismissed the complaint against Whittaker, Clark & Daniels, Inc., holding that the plaintiff's causation proof was legally insufficient, so the defendant won and the plaintiff lost the jury verdict.
• 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 32526(U)

RAPHAEL SASON, Plaintiff,

v.

DYKES LUMBER COMPANY, INC, GEORGIA PACIFIC LLC (DELAWARE) AS SUCCESSOR-IN-

INTEREST TO GEORGIA PACIFIC CORPORATION, GEORGIA PACIFIC LLC (NORTH CAROLINA) AS

SUCCESSOR-IN-INTEREST TO GEORGIA PACIFIC CORPORATION, GEORGIA PACIFIC LLC, UNION

CARBIDE CORPORATION, VANDERBILT MINERALS, LLC., CANCOS TILE TILE CORPORATION,

DAP, INC., DONALD DURHAM COMPANY, NATIONAL PLYWOOD CO., INC., THE PRINCE LUMBER

CO., INC., BESTWALL LLC, CBS CORPORATION, F/K/A VIACOM INC., SUCCESSOR BY MERGER

TO CBS CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, FLETCHER

BUILDINGS HOLDING USA, INC. INDIVIDUALLY AS SUCCESSOR IN INTEREST TO THE FORMICA

GROUP AND FORMICA CORPORATION, PREMARK INTERNATIONAL LLC. INDIVIDUALLY AND AS

SUCCESSOR IN INTEREST TO RALPH WILSON PLASTICS COMPANY A DIVISION OF DART

INDUSTRIES F/K/A REXALL DRUG I/K/A DART AND KRAFT, TRANOSLIW INTERNATIONAL INC.

INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO WILSONART INTERNATIONAL INC. AND

RALPH WILSON PLASTICS COMPANY, UNILEVER U.S., INC. INDIVIDUALLY AND AS SUCCESSOR

IN INTEREST TO NATIONAL STARCH, WILSONART LLC, WYETH HOLDINGS CORP. F/K/A

AMERICAN CYANAMID, Defendant.

Index No. 190257/2017, Motion Seq. No. 006.

Motion March 13, 2023.

July 21, 2023.

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 006) 232, 233, 234, 235, 236, 237, 238, 239, 257, 258, 259, 260, 261, 262, 267 were read on this motion to/for DISMISSAL.

Upon the foregoing documents, it is 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 Dykes Lumber Company, Inc. ("Dykes Lumber") moves to dismiss this action on the basis that plaintiff has failed to establish causation and defendant has established a prima facie case for a lack thereof under Nemeth v Brenntag North America, 38 NY3d 336 (2022).

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). Defendant Dykes Lumber has misstated its burden in the instant motion as the standard set forth in Nemeth v Brenntag which represents an extraordinary post-trial remedy to set aside a jury verdict, rather than the well settled burden on a motion for summary judgment. Defendants incorrectly state that plaintiffs have failed to prove causation herein, at the summary judgment stage. At summary judgment, plaintiff's opposition need only raise a triable issue of fact concerning specific causation. Further, the appropriate standard in a motion for summary judgment for defendant can be found in Dyer v AmChem Products Inc., 207 AD3d 408, 409 (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 Dykes Lumber fails to meet their burden on summary judgment as set forth in Dyer.

Defendant relies upon their two experts, Victor L. Roggli, MD, and Neva F.B. Jacobs, MSPH, CIH. Dr. Roggli opines that exposure to chrysotile asbestos, a category of asbestos fiber present in Dykes Lumber products used by plaintiff-decent, Uziel Sason, does not cause peritoneal mesothelioma. See Notice of Motion, Exh. C, Report of Victor L. Roggli, MD, Exh. 2 at p. 1. In opposition, plaintiff's expert, Mark E. Ginsburg, MD, analyzes a variety of asbestos fibers released by specific contested products, not just limited to chrysotile but amphibole fibers as well, and cites contradicting evidence that chrysotile asbestos contributes to peritoneal mesothelioma. See Affirmation in Opposition to Defendant Dykes Lumber Company, Inc.'s Motion for Summary Judgment, Exh. 3, Report of Mark Ellis Ginsburg, MD, at p. 10-15. This difference of opinion is sufficient to raise a question of fact.

Ms. Jacobs' calculations conclude that Mr. Sason's cumulative exposure to asbestos from the various products at issue herein was insufficient to have contributed to his illness. See Notice of Motion, Exh. D, Report of Neva F.B. Jacobs, MSPH, CIH, Exh. 2 at p. 11. However, the studies relied upon to estimate asbestos exposure to plaintiff do not meet the Dyer standard. Defendants in Dyer proffered a simulation study that measured the amount of asbestos released from cutting the exact tiles manufactured by them and at issue in the case. See Dyer, supra, 207 AD3d at 411. Further, their study simulated a worker's exposure "in an isolation chamber" and with "[a]ir sample cassettes ... attached to the worker and the helper in each of their breathing zones." Id.

Here, Ms. Jacobs merely relies upon a newsletter report regarding asbestos exposure from Durham Company Wood Putty, but notes that "[d]etails regarding the study location, age of the putty product, tools used during work tasks, sampling instrumentation used, and analytical method used were not described." Report of Neva F.B. Jacobs, supra, at p. 13. She further acknowledges that there are "[n]o peer-reviewed [studies] ... regarding potential asbestos exposure during the use of wood putty products." Id. This clearly does not meet the level of specificity for a simulation study under Dyer. It is unconvincing that one newsletter article, with no methodology details available, is sufficient to accurately calculate exposure from Durham wood putty.

The Dyer court specifically noted that "[t]he methodology employed in the [simulation] study provides for the placement of the air cassettes specifically designed to capture asbestos fibers created by the simulated activity in the breathable ones of the participating worker and helper." Dyer, supra, at 412. Plaintiff's expert, Dr. Ginsburg, also notes that the cumulative asbestos exposure calculated by Ms. Jacobs is higher than exposure amounts known to cause mesothelioma. See Affirmation in Opposition, supra, Exh. 3, Report of Mark Ellis Ginsburg, MD, at p. 16. This is sufficient to raise a question of fact.

As a reasonable juror could decide that asbestos exposure from products purchased from Dykes Lumber were a contributing cause of Mr. Sason's mesothelioma, sufficient issues of fact exist to preclude summary judgment. Accordingly, it is

ORDERED that defendant Dykes Lumber's motion for summary judgment seeking to dismiss based on causation 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