Court: Supreme Court of New York, New York County (NYCAL)
In this asbestos matter, decedent, Anna M. Buczynski, alleged exposure to asbestos from laundering the clothing of her former husband, Anthony Buczynski. From 1976 to 2000, Mr. Buczynski used caulking and glazing products manufactured by DAP Inc. in various homes he shared with Ms. Buczynski, as well as for servicing customers of his hardware business. Mr. Buczynski testified that asbestos dust from the caulking and glazing products would cover his clothing, and that Ms. Buczynski did his laundry for the majority of the time they were married.
DAP moved to dismiss the action, arguing that the claims against it were speculative because not all DAP caulks historically contained asbestos, and that plaintiffs failed to establish specific causation. In opposition, plaintiff asserted that DAP did not prove that its products could not have caused decedent’s mesothelioma.
Ultimately, the court found that DAP failed to affirmatively establish that Ms. Buczynski’s alleged exposure to asbestos could not have contributed to decedent’s illness. The court noted that Mr. Buczynski provided unequivocal testimony identifying DAP products. Additionally, DAP relied upon three affidavits from a former DAP employee, Ward Treat, to establish that asbestos was removed from DAP’s entire product line by 1978. However, the court found that Mr. Treat did not possess the requisite personal knowledge to establish that no DAP products containing asbestos were in circulation and used by Mr. Buczynski. In fact, according to the court, the affidavits confirmed that some formulations of DAP caulk contained asbestos.
As to causation, DAP provided a case-specific expert affidavit and report from Robert C. Adams, CIH, CSP, FAIHA, in which he concluded that it was “highly unlikely that Ms. Buczynski had any asbestos exposures from Mr. Buczynski’s use of DAP caulking or glazing products, or from her handling of Mr. Buczynski’s dirty work clothing that would have been greater than the ambient background concentrations of asbestos that would be present in the atmosphere.” Contrarily, plaintiff’s expert, Dr. Mark Ginsberg, concluded that [Mr. Buczynski’s] described exposure to DAP caulking, when he applied, chiseled, remove, and sanded asbestos containing DAP caulking; individually and cumulatively caused Ms. Buczynski’s malignant mesothelioma.”
With regard to causation, the court found that the competing causation evidence proffered by both parties constituted the classic “battle of the experts” sufficient to raise a question of fact, and to preclude summary judgment. See Sason v. Dykes Co., Inc. et al, 199 N.Y.S.3d 56 (1st Dep’t 2023).
Given the above, the court determined that DAP failed to establish that its products could not have contributed to the causation of plaintiff’s injury, and that a reasonable juror could determine that asbestos exposure from DAP products was a contributing cause of plaintiff’s illness. Thus, the court denied DAP’s motion in its entirety.
Read the full decision here.
