Wagner v. Aerco Intl., Inc. (2022)

Our plain-English summary of Wagner v. Aerco Intl., Inc. (New York Supreme Court, June 28, 2022).

Gerald Wagner, 84, was diagnosed with mesothelioma in June 2020. He sued many companies in New York County, including United States Steel Corporation. He alleged asbestos exposure from 1954 to 1957 in the Navy, working in engine rooms on the U.S.S. Kankakee and U.S.S. Alstede, maintaining pumps, valves and steam traps. Some of that time was spent aboard ships at the Brooklyn Navy Yard and in Staten Island. He later worked on a U.S. Steel freighter in 1959 and at Michigan Limestone, a U.S. Steel subsidiary. U.S. Steel asked the court to dismiss the case because New York was an inconvenient forum and Michigan was an adequate alternative. The court denied the motion. It found a nexus to New York because part of the exposure happened there. U.S. Steel had not shown that witnesses could not appear in New York, and discovery, including Wagner's deposition, had already taken place there. That Michigan might be an alternative forum did not meet U.S. Steel's burden.

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: June 28, 2022
• Citation: 2022 NY Slip Op 32061(U)
• Stage: Jurisdiction, venue or removal
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The trial court denied U.S. Steel's motion to dismiss on forum non conveniens grounds, so plaintiff Gerald Wagner's mesothelioma case stays in New York County.

What the court held. A defendant seeking forum non conveniens dismissal bears the burden of showing private or public interest factors against New York; where part of the exposure occurred in New York and no witness hardship is shown, the existence of an alternative forum does not meet that burden.

Issues decided: Venue, Removal and Transfer.

The people and their exposure

• Gerald Wagner: mesothelioma

Who	Work	Where	When	Products
Gerald Wagner	fireman's apprentice (the Navy); military service	U.S.S. Kankakee, Brooklyn, New York	1954-1955	gaskets and packing
Gerald Wagner	Machinist Mate (the Navy); military service	U.S.S. Alstede, Staten Island, New York	1955-1957
Gerald Wagner	engine room worker (shipyards and maritime work)	Myron C. Taylor (U.S. Steel freighter)	1959
Gerald Wagner	painter, assistant repairman, pump man, and millwright	Michigan Limestone, Rogers City, Michigan

The defendants

• United States Steel Corporation (employer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Wagner v. Aerco Intl., Inc. (January 2, 2024). The court denied defendant American Biltrite's motion for summary judgment, so plaintiff Michael Wagner's claims over his mesothelioma proceed 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.

2022 NY Slip Op 32061(U)

GERALD WAGNER, Plaintiff,

v.

AERCO INTERNATIONAL, INC., AIR & LIQUID SYSTEMS CORPORATION, BUFFALO PUMPS

DIVISION, AMERICAN OPTICAL CORPORATION, AMERON INTERNATIONAL CORPORATION,

ARMSTRONG INTERNATIONAL, INC., AURORA PUMP COMPANY, BALTIMORE AIRCOIL COMPANY

INC., BMCE INC., IN ITSELF AND AS SUCCESSOR TO UNITED CENTRIFUGAL PUMP CO., BW/IP,

INC., CBS CORPORATION, A DELAWARE CORPORATION F/K/A VIACOM INC. SUCCESSOR-BY-

MERGER TO CBS CORPORATION, A PENNSYLVANIA CORPORATION F/K/A WESTINGHOUSE

ELECTRIC CORPORATION, CHICAGO PNEUMATIC TOOL COMPANY LLC, CLEAVER-BROOKS,

INC., COPES-VULCAN, INC., CRANE CO., CROWN CORK & SEAL COMPANY, INC., CUMMINS, INC.,

DEZURIK, INC., FLOWSERVE CORPORATION AS SUCCESSOR TO DURIRON INC. AND DURCO

INTERNATIONAL INC., FLOWSERVE US INC., SOLELY AS SUCCESSOR TO EDWARD VALVES INC.,

ROCKWELL MANUFACTURING COMPANY, NORDSTROM VALVES INC. AND MCCANNA

CORPORATION, FLSMIDTH INC., FORMERLY KNOWN AS FULLER COMPANY, FMC

CORPORATION, FOSTER WHEELER ENERGY CORPORATION, GARDNER DENVER, INC.,

GENERAL ELECTRIC COMPANY, GOULDS PUMPS, INCORPORATED, GREENE TWEED & CO. INC.,

GRINNELL LLC, HERCULES, LLC, INDUSTRIAL HOLDINGS CORPORATION F/K/A THE

CARBORUNDUM COMPANY, ITT LLC, J-M MANUFACTURING COMPANY, INC., JENKINS BROS.,

JOHN CRANE, INC., METSO MINERALS INDUSTRIES, INC., MILWAUKEE VALVE COMPANY INC.,

MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AND SUCCESSOR-BY-MERGER TO

BORG-WARNER CORPORATION, MW CUSTOM PAPERS LLC, NASH ENGINEERING COMPANY,

SPIRAX SARCO, INC., SPX COOLING TECHNOLOGIES, INC., STERLING FLUID SYSTEMS (USA)

LLC, THE GOODYEAR TIRE & RUBBER COMPANY, UNION CARBIDE CORPORATION, UNITED

STATES STEEL CORPORATION, VELAN VALVE CORPORATION, WARREN PUMPS, LLC, WEIR

VALVES & CONTROLS USA, INC., D/B/A ATWOOD & MORRILL, WILLIAM POWELL COMPANY,

YORK INTERNATIONAL CORPORATION, JOHN DOE 1 THROUGH JOHN DOE 100 (FICTITIOUS)

Defendant.

Index No. 190233/2020, Motion Seq. No. 002.

Motion February 25, 2021.

June 28, 2022.

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 002) 115, 116, 117, 118, 119, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 140, 141, 142, 143, 144 were read on this motion to/for DISMISSAL. Upon the foregoing documents, it is hereby ordered that Defendant United States Steel Corporation's (hereinafter referred to as U.S. Steel) motion to dismiss based upon forum non conveniens is denied for the reasons set forth below. In the instant matter, Gerald Wagner (hereinafter referred to as Plaintiff) is 84 years old and has been diagnosed with mesothelioma. Plaintiff alleges that he was exposed to asbestos traceable to U.S. Steel during his career in the Navy from 1954-1957. Plaintiff was assigned to the U.S.S. Kankakee that sailed the Mediterranean Sea, where he served as a

fireman's apprentice. Plaintiff was allegedly exposed to asbestos while working in the engine room and maintaining pumps, valves, and steam traps until the ship's decommissioning at the Brooklyn Navy Yard in June of 1955. As the ship was decommissioned, Plaintiff stayed on the ship during June of 1955 until December of 1955. Plaintiff alleges exposure to asbestos during this time. From 1955 to 1957, Plaintiff was assigned to the U.S.S. Alstede and sailed the Mediterranean Sea again working as a Machinist Mate. The U.S.S. Alstede was docked for three to four months in Staten Island. During this time, Plaintiff stayed on the ship. Plaintiff alleges further asbestos exposure during his stay at Staten Island. While on the U.S.S. Alstede, Plaintiff had similar duties working within the engine room, maintaining the pumps, valves, turbines, oilers, and steam traps. Subsequently in 1959, Plaintiff worked onboard a U.S. Steel freighter named the Myron C. Taylor, again working in the engine room. Finally, Plaintiff worked at Michigan Limestone in Rogers City, Michigan as a painter, assistant repairman, pump man, and millwright. Michigan Limestone is a subsidiary of U.S. Steel. Plaintiff was diagnosed with mesothelioma at Northern Michigan Hospital in June of 2020. Plaintiff brings suit against U.S. Steel claiming exposure to asbestos resulting in his mesothelioma, and U.S. Steel moves to dismiss on the basis of forum non conveniens. Plaintiff opposes.

Plaintiff contends that U.S. Steel has not met its heavy burden to demonstrate that a motion to dismiss on the basis of forum non conveniens is warranted. First, Plaintiff argues that "dismissal on forum grounds is not warranted where, as here, there is a substantial nexus between a plaintiff's claims and New York." Plaintiffs' Memorandum Of Law In Opposition To Defendant United States Steel Corporation's Motion To Dismiss Plaintiff's Complaint On The Basis Of Forum Non Conveniens, p. 7 (internal emphasis omitted). Further, Plaintiff argues that "U.S. Steel's contention that New York is an inconvenient forum based on the location of the evidence is unavailing." Id. at p. 9.

Conversely, U.S. Steel argues that the motion to dismiss based upon forum non conveniens should be granted "because: (1) Plaintiff is not and was never a New York resident and his alleged injury lacks a substantial nexus to New York; (2) all of the witnesses and evidence are located outside New York; (3) the already overburdened NYCAL court system should not be compelled to hear a case that is wholly devoid of any nexus to New York; (4) there is an adequate alternative forum in the State of Michigan; and (5) the courts in the State of Michigan are more equipped to handle claims under the Jones Act, 46 U.S.C. § 30104, as maritime claims are frequently litigated in Michigan." Memorandum Of Law In Support Of Motion To Dismiss Plaintiff's Complaint On The Basis Of Forum Non Conveniens On Behalf Of Defendant United States Steel Corporation, p. 6.

CPLR 327(a) states that "[w]hen the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action." "The common-law doctrine of forum non conveniens, also articulated in CPLR 327, permits a court to stay or dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere. The burden rests upon the defendant challenging the forum to demonstrate relevant private or public interest factors which militate against accepting the litigation ... and the court, after considering and balancing the various competing factors, must determine in the exercise of its sound discretion whether to retain jurisdiction or not. Among the factors to be considered are the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit." Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-79 (1984) (internal citations omitted).

In the instant matter, it is clear that there is a nexus between the Plaintiff's claim and New York. U.S. Steel argues that "the uncontroverted evidence is that Mr. Wagner has never been a resident of New York; was never employed in New York; and even if he handled alleged asbestos-containing products, such as gaskets and packing, on ships docked briefly in New York, such contacts were so trivial and isolated compared to the entirety of his claims." U.S. Steel's Memorandum In Support, Supra, at p. 7. However, "[a]s U.S. Steel concedes, Mr. Wagner was exposed to asbestos in New York during several periods—including while working for U.S. Steel. Plaintiff's experts will opine that Mr. Wagner's exposures in New York contributed to causing his mesothelioma." Plaintiff's Memorandum of Law in Opposition, Supra, at p. 7. It is within the sound discretion of the Court to determine whether there is a nexus between New York and the Plaintiff's claim. As Plaintiff was working for U.S. Steel within New York on several occasions, wherein Plaintiff was exposed to asbestos within the state, a nexus has been established between Plaintiff's claim and New York.

Furthermore, U.S Steel contends that New York would be an inconvenient forum, as no witnesses residing in New York have been identified, and the treating physicians are located in Michigan. Conversely, Plaintiff argues that "significant discovery has already taken place in New York. Mr. Wagner has already appeared for a 13-volume discovery deposition.

Plaintiff will tender any other fact witness for discovery depositions in New York and all will appear live for trial." Id. at p. 9. The Appellate Division, First Department in Yoshida Printing Co., Ltd. v Aiba, 213 AD2d 275, 275 (1st Dept 1995), held that "defendant failed to make any showing with respect to the materiality of the testimony of certain potential witnesses and could not demonstrate that their testimony would be unavailable here." (internal citations omitted). As in Yoshida, U.S. Steel has failed to establish any undue hardship regarding availability of witnesses to testify in New York. In addition, forum non conveniens "rests upon justice, fairness and convenience and ... when the court takes these various factors into account in making its decision, there has been no abuse of discretion reviewable by this court". Islamic Republic of Iran v Pahlavi, supra, 62 NY2d at 479. Considering all of the relevant factors and the totality of the circumstances, New York is an appropriate forum. Necessary witnesses may appear in New York for trial, and any pertinent records or documentation may be accessed in New York as well. Discovery has taken place in New York, as well as Mr. Wagner's deposition. Finally, U.S. Steel contends that Michigan is a more suitable alternative forum, as Michigan courts hear cases under the Jones Act, 46 U.S.C. § 30104, which protect seaman. Further, U.S. Steel argues that Michigan has a fast-paced asbestos docket. In contrast, Plaintiffs argue that "New York is where a portion of Mr. Wagner's exposure (and, thus, injury) took place and where U.S. Steel had a headquarters which directed worker health and safety." Plaintiff's Memorandum of Law in Opposition, supra, at p. 10. As there is a substantial nexus between Plaintiff's claim and New York, a portion of Plaintiff's alleged exposure occurred in New York and U.S. Steel has wholly failed to establish that New York is an inconvenient forum for any of the witnesses, the fact that Michigan might be a possible alternative forum does not satisfy U.S. Steel's burden to change venue.

Thus, U.S. Steele has failed to meet its burden and their motion to dismiss on the basis of forum non conveniens is denied. Accordingly, it is

ORDERED that U.S. Steel's motion to dismiss based upon the doctrine of forum non conveniens is hereby denied in its entirety; and it is further

ORDERED that, within 21 days of entry, plaintiffs shall serve a copy of this decision/order upon all parties, together 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