Automotive Defendant’s Motion for Summary Judgment Fails as Issues of Fact Remain on Causation and Punitive Damages | Goldberg Segalla

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Supreme Court of New York, Erie County, October 6, 2022

In this asbestos action, Plaintiff Joseph Skrzynski alleged that he developed malignant mesothelioma as a result of occupational exposure to asbestos from brakes and clutches manufactured by Ford. Ford moved for summary judgment on several grounds.

First, the court determined that Ford did not meet its burden of proof on general causation. The court determined that that “the opposing experts disagree on causation or increased risk of disease, thus raising material fact issues of causation after chrysotile is released in respirable forms.” The court also set forth that Ford would have met its prima facie burden on general causation if Ford provided an unrefuted study “that express in fiber per cc years exposure to Ford workers in similar work circumstances as plaintiff.” Instead, Ford’s “expert opinion is based on epidemiology studies that allege chrysotile fibers contained in friction products do not cause mesothelioma or after the braking process converts those chrysotile fibers from used brakes to the non-carcinogen forsterite.” Further, Plaintiff noted that Ford’s exhibit showed their brakes and clutches contained “small amounts of amphibole asbestos which apparently opposing experts would agree cause or increase risk of mesothelioma if inhaled in amounts known to cause or increase risk of disease.”

The court also found that Ford did not meet its prima facie burden on specific causation and that material questions of fact remain. With regard to Plaintiff’s proofs, the court noted that “Dr. Millette provided respirable asbestos fiber release studies for similar activities and proximities to what plaintiff states were the source of his asbestos exposure.” In addition, “Dr. Moline relied on and compared Dr. Millette’s estimates of plaintiff’s exposure levels to those exposure levels found in the studies reflected in her affirmation.” Dr. Moline further opined that the exposure range levels in studies “which quantified the levels of exposure range in total fiber years (F/YR) were seen to elevate the risk of mesothelioma from 4-fold to 28-fold,” which “are in the range of exposure that Plaintiff experienced.” However, the court determined that “plaintiff has made a prima facie showing of with Drs. Millette’s and Moline’s use of scientific expression and a level of scientific rigor to overcome Ford’s motion to exclude their expert opinions.” The court further found “material differences of opinion by the experts used by plaintiff and Ford regarding the sufficiency and correctness of the methodologies and the scientific expression used by the Plaintiff’s experts to prove his exposure to active chrysotile asbestos fibers from Ford products at levels known to cause mesothelioma.” Thus, the court held that Ford did not meet its prima facie burden that its products could not have contributed to the causation of Plaintiff’s injuries.

The court also rejected Ford’s argument that the failure to exclude Plaintiff’s experts’ opinions would result in the court not properly exercising its “gatekeeper role” as Parker v. Mobil Oil Corp. and its progeny “do not hold that unless the plaintiffs submit opinions based on time-weighted averages as the only generally accepted methodology to prove causation (fiber per cc year calculation), their case must be summarily dismissed before trial.”

In addition, Ford argued that Plaintiff’s experts fail to rule out therapeutic radiation as a cause of his mesothelioma. Plaintiff contends that both Drs. Moline and Kanarek addressed the issues of therapeutic radiation. As such, the court found that material issues of fact remain on this issue.

With regard to punitive damages, the court noted that “[t]he threshold for establishing punitive damages in New York is demanding, requiring the plaintiff to demonstrate that the defendant’s conduct was so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others and that the conduct demonstrates a high degree of moral culpability.” At the summary judgment stage where the evidence is determined in the light most favorable to the non-movant, the court determined that “a rational jury might conclude that Ford acted with wanton and reckless disregard for public safety by failing to replace its asbestos-containing products with non-asbestos products.” In addition, “after deciding to continue to utilize these products, plaintiff alleges that Ford failed to warn the consumer of its findings and continued to sell and use these asbestos-containing products.” The court also instructed that it could only review whether a particular award of punitive damages is unconstitutional after the trial record is established.

Ford also sought dismissal of Plaintiff’s punitive damages claim as Michigan’s punitive damages statute should apply here given that Ford’s principal place of business is in Michigan. However, the court found that “New York law must apply because the alleged tort occurred in New York where the Plaintiff resided and sustained the physical and economic impact of the loss.”

Thus, the motion for summary judgment was only granted for the causes of action which Plaintiff did not oppose (breach of implied and express warranties, violations of New York Labor Law and Industrial Cod, and loss of consortium).  

Read the full decision here