Jurisdiction: Supreme Court of New York, New York County

Plaintiff John P. Reeves alleges asbestos exposure from, among other things, the asbestos-containing caulk of defendant DAP Inc. while serving in the U.S. Navy aboard the USS Forrestal from 1961 to 1964. He also alleges exposure from the caulking work he performed on various occasions in his home, and from DAP asbestos-containing window glazing while renovating his home between 1966 and 1967. 

Plaintiff claims this asbestos exposure resulted in his diagnosis of lung cancer in 2019.  DAP ultimately filed a motion for summary judgment on the basis that plaintiff’s claims are “speculative” because not all DAP caulks historically contained asbestos, and that plaintiff failed to establish specific causation. Plaintiff opposed by arguing that DAP did not prove that its products could not have caused his asbestos-related illness and highlighting his testimony, as well as that of plaintiff’s experts.

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, 501 N.E.2d 572, 508 N.Y.S.2d 923 (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, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985). 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 plaintiffs injury”. Reid v. Georgia-Pacific Corp., 212 AD2d 462, 463, 622 N.Y.S.2d 946 (1st Dep’t 1995).

As to causation, the court found the appropriate summary judgment standard for DAP was found in Dyer v Amchem Prods. Inc., 207 A.D.3d 408, 409, 171 N.Y.S.3d 498 (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. The Appellate Division, First Department, recently affirmed this court’s decision in Sason v Dykes Lumber Co., Inc., et. al., 221 A.D.3d 491, 199 N.Y.S.3d 56, 2023 NY Slip Op 05796 (1st Dep’t 2023), wherein the court held “the parties’ competing causation evidence constituted the classic ‘battle of the experts’” sufficient to raise a genuine question of fact, and to preclude summary judgment.

In this case, DAP’s expert affidavit and report from Robert C. Adams, CIH, CSP, FAIHA, is not case specific and forms no opinions based on plaintiff’s actual exposure and work timeline. The court found this is plainly insufficient to meet DAP’s burden for summary judgment. In addition, plaintiff’s expert, Dr. Mark Ginsburg, specifically reviewed plaintiff’s exposure and occupational history to provide causation analysis. The court found this constituted the classic “battle of the experts” to further deny DAP’s motion for summary judgment. As a reasonable juror could decide that asbestos exposure from DAP’s products was a contributing cause of plaintiff’s illness, sufficient issues of fact exist to preclude summary judgment in favor of DAP.

Read the full decision here.