Stewart v. AO Smith Water Products (2010)

Our plain-English summary of Stewart v. AO Smith Water Products (New York Supreme Court, October 6, 2010).

James Stewart and his wife Patricia sued, alleging that he developed mesothelioma from asbestos exposure while working at the General Motors plant in Ypsilanti, Michigan, from 1975 to 2005. They claimed he was exposed to asbestos in hydraulic valves made by Parker Hannifin. Stewart testified that he repaired valves bearing the Parker Hannifin name and replaced gaskets and packing three to five times a week. The valve bodies themselves contained no asbestos. The asbestos-labeled packing and gasket materials he used came from other makers: Palmetto, Victor and Garlock. Parker Hannifin asked for summary judgment. It said its valves used rubber o-rings without asbestos and did not require asbestos packing. Plaintiffs pointed to 1970s Parker Hannifin catalogs listing asbestos packing and gaskets and argued that asbestos parts in its valves were foreseeable. The court granted the motion. It found that Stewart never used asbestos materials made by Parker Hannifin. It also found that the catalogs did not show products intended for its hydraulic valves, so the warning theory was too speculative. 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: October 6, 2010
• Citation: 2010 NY Slip Op 32896(U)
• Docket: No. 190262/2009
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted Parker Hannifin's motion for summary judgment and dismissed the Stewarts' complaint and all cross claims against it, because plaintiffs failed to identify an asbestos-containing Parker Hannifin product; the action continues against other defendants.

What the court held. A plaintiff must show actual exposure to fibers from the defendant's own asbestos-containing product; a manufacturer is not liable to warn about other manufacturers' replacement parts used with its product where the connection is too attenuated and speculative.

Issues decided: The Bare-Metal Defense, Failure to Warn, Product Identification.

The people and their exposure

• James Stewart: mesothelioma

The defendants

• Parker Hannifin Corporation (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Dollas v. WR Grace & Co. (New York Supreme Court, Appellate Division, 1st Dept., 1996). The Appellate Division reversed the grants of summary judgment to W.R. Grace against plaintiffs Dollas and Gargano, finding a fact question on whether the decedents were exposed to Grace's Monokote.

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.

2010 NY Slip Op 32896(U)

JAMES STEWART and PATRICIA STEWART, Plaintiffs,

v.

A.O. SMITH WATER PRODUCTS, et. al., [Parker Hannifin Corp.] Defendants.

No. 190262/2009.

October 6, 2010.

Supreme Court, New York County.

DECISION AND ORDER

SHERRY KLEIN HEITLER Judge.

In this asbestos personal injury action plaintiffs James Stewart ("Stewart") and Patricia Stewart allege that James Stewart was exposed to defendant Parker Hannifin Corporation's ("Parker Hannifin") asbestos containing hydraulic valves, which caused him to develop mesothelioma. Parker Hannifin now moves, pursuant to CPLR 3212, for summary judgment, on the ground that plaintiffs have failed to identify its product.

Stewart alleges that he was exposed to defendant's asbestos containing product while employed at the General Motors Ypsilanti, Michigan Plant ("GM Plant"), during the years 1975-2005, and that this exposure was a contributing factor to his diagnosis of mesothelioma. Parker Hannifin acknowledges that its valves were present in the GM Plant in machines on which Stewart worked; however, Parker Hannifin denies that its valves contained asbestos, arguing that the majority of its hydraulic valves at the GM Plant contained only o-rings, which were made of rubber material, not asbestos. Parker Hannifin argues further that any of its valves that did contain gaskets contained non-asbestos gaskets. Defendant argues that summary judgment is warranted because plaintiffs have failed to identify a Parker Hannifin manufactured asbestos containing product to which Stewart was exposed. Moreover, Parker Hannifin asserts that it could not have been expected to warn against other manufacturers' potential replacement parts.

Plaintiffs assert that Stewart's deposition testimony, during which he named Parker Hannifin as one of the asbestos containing hydrolic valves on which he worked, is sufficient to identify defendant's asbestos containing product. In addition, plaintiffs argue that the Parker Hannifin Catalogs (see, infra) demonstrate that Parker Hannifin sold asbestos for its hydraulic valves. Plaintiffs assert that it was therefore foreseeable that asbestos components would be used in Parker Hannifin's hydraulic valves and Parker Hannifin therefore had a duty to warn. Accordingly, plaintiffs argue that summary judgment should be denied.

During Stewart's deposition, on December 17, 2009, he testified that his job required him to perform repairs to valves, some of which he knew to be Parker Hannifin valves because Parker Hannifin's name was embossed on the valve's main body. (Notice of Motion, Ex. C, p. 344.) Although Stewart testified that the valve itself was made of "brass I'm presuming or bronze" with no asbestos, he alleges that in the process of necessary repairs to the valve's components, he was exposed to asbestos packing and gaskets. (Id., at 340-41, 343.) Stewart testified that he was required to replace gaskets in Parker Hannifin's valves three to five times a week during his time at the GM Plant. (Id., at 341.) He testified that he used Palmetto manufactured packing and Victor and Garlock manufactured gasket material in Parker Hannifin valves, all of which had packaging with asbestos labels. (Id.)

Parker Hannifin provides evidence that the hydraulic valves with which Stewart worked did not require replacement materials that contained asbestos. It shows, through the deposition testimony of retired Parker Hannifin Manager/Engineer Paul R. Kuebler, Jr. Dated May 13, 2010 (Supplemental Affirmation in Opposition, Ex. A, p. 52-54) that its hydraulic valves did not require the replacement of packing. It further shows that Stewart himself described the work he performed on Parker Hannifin's valves as, "some packing maybe. But usually on the packing we would just replace the valve if we had to if it's that bad." (Affirmation in Opposition, Ex. C, p. 53.) Parker Hannifin also points to Stewart's testimony that he did not use asbestos containing gasket material or packing material manufactured by Parker Hannifin on Parker Hannifin valves, but by other manufacturers of gasket and packing material, hi this regard, while Parker Hannifin admits that its hydraulic valves

contain o-rings and dust gaskets that would require replacement, Parker Hannifin has shown that such hydraulic valve components as manufactured or recommended by Parker Hannifin did not and do not contain asbestos. Further Parker Hannifin provides the affidavit of Dale Ashby, currently Vice President of Technology & Innovation for Parker Hannifin's Sealing and Shielding Group, sworn to May 28, 2010, that after reviewing the formulas for Parker Hannifin hydraulic valve o-rings dating back to their first date of sale, the o-rings have always been made of Nitrile or Buna-N rubber, and have not contained asbestos.

For the non-moving party to defeat a motion for summary judgment, it is insufficient to merely show that the defendant's products were in existence at plaintiffs workplace. Cawein v. Flintkote Co., 203 A.D.2d 105, 106 (1st Dept. 1994). Rather, a plaintiff must show that he actually inhaled fibers from the defendant's asbestos containing product. Id. In asbestos litigation, the deposition testimony of a litigant is sufficient to raise an issue of fact if the litigant provides information to establish a reasonable inference that the defendant'sproducts caused his or her injury (emphasis added). Dollas v. W.R. Grace & Co., 225 A.D.2d 319, 321 (1st Dept. 1996); see also Cawein v. Flintkote Co., supra, 203 A.D.2d at 106. Stewart's deposition testimony alone does not create a reasonable inference that he came into contact with dust from a product which the defendant manufactured because he testified that he never used Parker Hannifin manufactured asbestos containing materials (see Notice of Motion, Exh. C, pp. 340-41).

Plaintiffs have submitted two Parker Hannifin Packing, Compression, and Gasket Catalogs ("Catalogs") from the 1970's. (See Supplemental Affirmation in Opposition, Exh. A, plaintiffs deposition Exhibits 11 and 12.) The Catalogs, from the Parker Hannifin Seal Division, list for sale multiple asbestos packing and gasket materials, many of which are specified for use in valves and valve stems. (Id.) Plaintiffs assert that the mere existence of these Parker Hannifin products demonstrate that the use of asbestos products in Parker Hannifin's hydraulic valves was foreseeable, and defendant, thus, had a duty to warn.

In Renow v A. W. Chesterton, Sup. Ct., N.Y. County, Jan 16, 2003, Freedman, J., Index No. 106444/03, Seq No. 006, quoting Baughman v. Gen. Motors Co., 780F.2d 1131 (4th Cir. 1986) this court granted summary judgment for the defendant on the ground that a manufacturer could not be held liable for failure to warn of a "myriad of replacement parts supplied by any number of manufacturers" where the plaintiff testified that his asbestos exposure occurred from replacement parts not manufactured by the defendant. In Porper v. A. W. Chesterton Co., Sup. Ct., N.Y. County, Dec. 22, 2003, Freedman, J., Index No. 0109441/2003, this court held that "exposure to another product even when certain attributes are specified, does not create liability by an owner for replacement parts manufactured by another."

In this case plaintiffs have not demonstrated that the Catalogs contain products intended for use with Parker Hannifin hydraulic valves. The connections plaintiffs thus attempt to make are too attenuated and speculative to hold Parker Hannifin liable to warn for the use of other manufacturers' potential replacement products. The words "hydraulic valve" do not appear in the Catalogs and Parker Hannifin sells a wide variety of valves. (Affirmation in Opposition, Ex. J.) In addition, Parker Hannifin provides the Affidavit of Paul Kuebler, the former Integration Manager for Parker Hannifin's Hydraulic Division, sworn to May 27, 2010, who attests that the Catalogs did not offer any products intended for use with hydraulic valves, the only type of Parker Hannifin products with which Stewart worked. Plaintiffs do not dispute this claim. The party moving for summary judgment has the burden of establishing a prima facie case for judgment as a matter of law by demonstrating that there are no material issues of fact, Comeau v. W.R. Grace & Co., 216 A.D.2d 79, 80 (1st Dept. 1995). If the moving party meets this burden, then the non-moving party must demonstrate, by admissible evidence, the existence of an issue of fact requiring trial. Id. In this case, Parker Hannifin has met its initial burden and plaintiffs have failed to sufficiently provide evidence of the existence of a material issue of fact requiring a trial.

Accordingly, defendant Parker Hannifin's motion is granted and it is hereby

ORDERED, THAT Parker Hannifin's motion for summary judgment dismissing the complaint and all cross claims against it is granted.and this action against Parker Hannifin and any cross claims are severed and dismissed; and it is further ORDERED that the remainder of the action shall continue as against the remaining defendants; and it is further ORDERED that the Clerk is directed to enter judgment accordingly.

This shall constitute the decision and order of the court.

Sources

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