In re Fifth Judicial District Asbestos Litigation

6 Misc. 3d 176
CourtNew York Supreme Court
DecidedSeptember 20, 2004
StatusPublished
Cited by2 cases

This text of 6 Misc. 3d 176 (In re Fifth Judicial District Asbestos Litigation) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Fifth Judicial District Asbestos Litigation, 6 Misc. 3d 176 (N.Y. Super. Ct. 2004).

Opinion

OPINION OF THE COURT

James W. McCarthy, J.

[177]*177The above-referenced matters are before this court pursuant to defendant Metropolitan Life Insurance Company’s motion for summary judgment (CPLR 3212). Following the receipt of the parties’ submissions, the court reserved decision on August 9, 2004. Having reviewed the voluminous submissions of the parties, for the reasons set forth below, this court makes the following findings of fact and conclusions of law.

Findings of Fact:

The facts underlying the 23 plaintiffs’ claims against the defendant are not in dispute, and find their genesis in a claimed civil conspiracy arising out of an alleged failure of Metropolitan Life, its agents, servants and/or employees to disclose or publish information concerning the dangers of asbestos in the scientific and medical literature in the 1920s through 1930s. At the center of the plaintiffs’ claims against Metropolitan Life are three studies conducted by or on behalf of the defendant into the medical effects of exposure to asbestos.

It is alleged in the plaintiffs’ complaint that in the 1920s a study of Canadian asbestos mine workers revealed to Metropolitan Life that the workers suffered from asbestosis, and that the defendant failed to publish the information. In 1932, plaintiffs allege the defendant, through its agents, Dr. Anthony Lanza and Dr. Fellow, conducted medical examinations of employees of Johns-Manville. A report of the study demonstrated that a high percentage of employees in the study suffered from asbestosis, including those not directly involved in the manufacturing process. The study was again not published in the medical literature of the time. A third study conducted by Dr. Lanza, then Associate Medical Director of Metropolitan Life, was published in 1935. It is alleged by plaintiffs that the study was published at the behest of members of the asbestos industry to:

“affirmatively misrepresent a material fact about asbestos exposure; i.e the seriousness of disease process, asbestosis. This was accomplished through intentional deletion of Dr. Lanza’s description as ‘fatal’ and through other selective editing . . . that affirmatively misrepresented asbestos[is] as a disease process less serious than it actually is and was known to be then. As a result, Dr. Lanza’s study was published in the medical literature in a misleading fashion in 1935 . . .” (plaintiffs’ complaint, count III, civil conspiracy).

These allegations, when taken together, form the basis of the [178]*178plaintiffs’ claims of civil conspiracy and fraud against Metropolitan Life.

In support of its motion for summary judgment, defendant points to the following facts, which are not challenged by the plaintiffs:

(1) Metropolitan Life did not and does not engage in the business of manufacturing, fabricating, designing, distributing, selling or otherwise placing in the stream of commerce asbestos or other asbestos containing products;

(2) plaintiffs do not allege that they had any contact with Metropolitan Life or its employees regarding asbestos;

(3) plaintiffs do not allege that they read or heard anything that Metropolitan Life or its employees wrote or said about asbestos; and

(4) plaintiffs do not allege the existence of a fiduciary, contractual, special or confidential relationship, or any relationship whatsoever with Metropolitan Life, its agents, servants or employees concerning asbestos.

Distilled to its essence, defendant’s motions for summary judgment are predicated first upon an argument that the plaintiffs, regardless of how their cause of action is denominated, have failed to demonstrate a recognized duty to them, and that to impose a duty or liability in the instant action would in essence “[expand] liability to an unlimited class of persons [such as plaintiffs] who were exposed to asbestos over many decades in many occupations, and who have had no relationship or connection whatsoever to Metropolitan Life.” (Defendant’s counsel’s affirmation in support of summary judgment 1Í13.) In the alternative, defendant argues that the plaintiffs have failed to demonstrate a “justifiable detrimental reliance,” insofar as the dangers associated with asbestos exposure here documented long before the plaintiffs alleged exposure and there is no proof in the record before the court of any reliance by plaintiffs. Lastly, defendant argues that plaintiffs are incapable of demonstrating “a legitimate causal nexus between the alleged acts and omissions of Metropolitan Life and their purported injuries.” (Defendant’s counsel’s affirmation in support of summary judgment If 19.)

In opposition to the instant motion, plaintiffs’ counsel first argues that:

“New York courts have long recognized a cause of action for civil conspiracy based on the underlying [179]*179tort of fraud. The evidence of fraud committed by Metropolitan Life is overwhelming ... A defendant who commits fraud is liable to whoever suffers the consequences of the fraudulent act, regardless of whether or not privity exists between the parties.” (Plaintiffs’ counsel’s affirmation in opposition to summary judgment 1i 4.)

Plaintiffs’ counsel further argues that:

“Defendant has also asserted that the plaintiffs [sic] claim must fail because there is no evidence of proximate causation. This argument is an insufficient basis for summary judgment as a prima facie case had been set forth in the pleadings raising a triable issue. Specifically, by concealing and misrepresenting material facts related to the toxicity of asbestos, Met Life discouraged all persons exposed to asbestos from protecting themselves from future contact. This misrepresentation prevented the general public and plaintiffs from making informed decisions about whether or not to work in an environment where asbestos was present.” (Plaintiffs’ counsel’s affirmation in opposition to summary judgment If 11.)

Conclusions of Law:

It is well settled that “[t]here is no independent tort in New York for civil conspiracy” (Niagara Mohawk Power Corp. v Testone, 272 AD2d 910, 911 [2000]; see, American Baptist Churches of Metro. N.Y. v Galloway, 271 AD2d 92, 101 [2000]). Rather, “[allegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort” (Alexander & Alexander of N.Y. v Fritzen, 68 NY2d 968, 969 [1986]; Brenner v American Cyanamid Co., 288 AD2d 869 [4th Dept 2001]; see also, Burdick v Verizon Communications, 305 AD2d 1030 [4th Dept 2003]; Kjar v Jordan, 217 AD2d 981 [4th Dept 1995]; McCarthy v Weaver, 99 AD2d 652 [4th Dept 1984]). Thus, as framed by the plaintiffs in their complaint, the court turns its attention to the intentional tort of fraud.

As recognized in New York, the necessary elements of fraud are:

“the misrepresentation of a material fact; knowledge by the party making the misrepresentation. that it was false when made; justifiable reliance [180]*180upon the statement; and damages (Chimento Co. v Banco Popular, 208 AD2d 385; Gouldsbury v Dan’s Supreme Supermarket, 154 AD2d 509, 510-511 [1989], lv denied 75 NY2d 701; Brown v Lockwood, 76 AD2d 721, 730).” (Abrahami v UPC Constr. Co., 224 AD2d 231 [1st Dept 1996].)

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6 Misc. 3d 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fifth-judicial-district-asbestos-litigation-nysupct-2004.