Pefanis v. A.O. Smith Water Prods. Co

2024 NY Slip Op 32973(U)

• Court: New York Supreme Court, New York County
• Decided: August 21, 2024
• Docket: Index No. 190302/2020
• Status: Unpublished

Opinion

Pefanis v A.O. Smith Water Prods. Co 2024 NY Slip Op 32973(U) August 21, 2024 Supreme Court, New York County Docket Number: Index No. 190302/2020 Judge: Adam Silvera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 190302/2020 NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 08/22/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 13 Justice ------------------------------X INDEX NO. 190302/2020 JENNIFER PEFANIS, AS EXECUTRIX FOR THE ESTATE OF ANNA M. BUCZYNSKI, 02/01/2024, MOTION DATE 02/16/2024 Plaintiff, MOTION SEQ. NO. 001 002 - V -

A.O. SMITH WATER PRODUCTS CO, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, OAP, INC, DONALD DURHAM COMPANY, GENERAL ELECTRIC COMPANY, H.M. ROYAL, INC, PFIZER, INC. (PFIZER), PECORA CORPORATION, RT.VANDERBILT HOLDING COMPANY, INC, SHERWIN WILLIAMS DECISION + ORDER ON COMPANY, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, WEIL-MCLAIN, A MOTION DIVISION OF THE MARLEY-WYLAIN COMPANY, A WHOLLY OWNED SUBSIDIARY OF THE MARLEY COMPANY, LLC,VANDERBILT MINERALS LLC INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO INTERNATIONAL TALC COMPANY, INC.,

Defendant. ---------------------------- -------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 163, 164, 165, 166, 167, 168, 169, 170,171,172,173,174,175,176,177,178,179,180,181,182,183,184,185,186,187,188,189,190, 191, 192, 196 were read on this motion to/for JUDGMENT-SUMMARY

The following e-filed documents, listed by NYSCEF document number (Motion 002) 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105,106,134, 135,136,137, 138,139,140,141,142,143, 144,145,146,147,148,149,150,151,152,153,154,155,156,157,158,159,160,161,162,193,194, 195 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, it is ordered that the instant motions for summary

judgment seeking dismissal of this action pursuant to CPLR § 3212 are decided in accordance

with the decision below. Here, defendant Donald Durham Company (Durham) moves to dismiss

this action (mot. seq. no. 001) on the basis that plaintiff has failed to establish causation.

190302/2020 JENNIFER PEFANIS, AS EXECUTRIX FOR THE ESTATE OF ANNA M. BUCZYNSKI Page 1 of 7 vs. A.O. SMITH WATER PRODUCTS CO ET AL Motion No. 001 002

1 of 7 [* 1] INDEX NO. 190302/2020 NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 08/22/2024

Defendant Vanderbilt Minerals, LLC (Vanderbilt) cross-moves to join defendant Durham in its

motion for summary judgment pursuant to CPLR 3212 and incorporates defendant Durham's

arguments. By separate motion (mot. seq. no. 002), defendant Vanderbilt moves for summary

judgment seeking to dismiss this action as against it, or in the alternative, to dismiss specific

causes of action. Thereafter, plaintiff and defendant Vanderbilt executed a Stipulation to Dismiss

Certain Causes of Action, dated March 20, 2024. Thus, the remaining relief sought by defendant

Vanderbilt in mot. seq. no. 002 is to dismiss this action as against it, or alternatively, to dismiss

the claim for punitive damages. Defendant Vanderbilt argues that summary judgment must be

granted for the reasons stated by defendant Durham, as defendant Vanderbilt's only connection

to the instant action is due to its talc being a component ingredient in defendant Durham's water

putty.

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 , 68 NY2d 320, 324 (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". FVinegrad v Ne,!' York

Uniw:rsi(r Medical Center, 64 NY2d 851, 853 (1985). Despite the sufficiency of the opposing

papers, the failure to make such a showing requires denial of the motion. id. at 853.

Additionally, summary judgment motions should be denied if the opposing party presents

admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v

City o/:Vew York, 49 NY2d 557, 560 (1980). "In determining whether summary judgment is

appropriate, the motion court should draw all reasonable inferences in favor of the nonrnoving

party and should not pass on issues of credibility." Garcia v JC Duggan. Inc., 180 AD2d 579,

190302/2020 JENNIFER PEFANIS, AS EXECUTRIX FOR THE ESTATE OF ANNA M. BUCZYNSKI Page 2 of 7 vs. A.O. SMITH WATER PRODUCTS CO ET AL Motion No. 001 002

2 of 7 [* 2] INDEX NO. 190302/2020 NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 08/22/2024

580 (1st Dep't 1992), citing Duwnan Di,,p/ays, Inc. r Jfasturzo, 168 AD2d 204 (1st Dep't 1990).

The court's role is "issue-finding, rather than issue-determination". Sillman v Twentieth Cemw:v-

Fox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations omitted).

As such, summary judgment is rarely granted in negligence actions unless there is no

conflict at all in the evidence. See {}gurri::a v Schmieder, 46 NY2d 471, 475-476 (1979).

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 (1st Dep't 1995).

The appropriate standard in a motion for summary judgment for defendant can be found

m v AmChcm Products ., 207 AD3d 408,409 (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 , lnc., et. al., 2023 NYSlipOp 05796 (1st Dep't 2023), stating that

"the parties' competing causation evidence constituted the classic 'battle of the experts'"

sufficient to raise a question of fact, and to preclude summary judgment.

Here, moving defendants rely upon three experts. Brittani D. McNamee, P.G., Ph.D.

affirms that no asbestiform amphiboles were found in samples of Durham's putty tested for the

presence of asbestos fibers. See Mot. Seq. No. 001, Affirmation in Support of Motion, Exh. F,

Affirmation of Dr. Brittani McNamee, at p. 2. Certified industrial hygienist and toxicologist Dr.

Scott Dotson performed an air sampling test of Durham's putty in which a team collected fifty-

nine personal and area air samples during use of Durham putty and concluded that Durham's

190302/2020 JENNIFER PEFANIS, AS EXECUTRIX FOR THE ESTATE OF ANNA M. BUCZYNSKI Page 3 of 7 vs. A.O. SMITH WATER PRODUCTS CO ET AL Motion No. 001 002

[* 3] 3 of 7 INDEX NO. 190302/2020 NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 08/22/2024

putty does not contain asbestos fibers, but thirteen of the samples contained amphibole cleavage

fragments. See Affirmation in Support, supra, Exh. G, Affirmation of Dr. Scott Dotson, at p. 2.

He states that non-asbestiform minerals, such as cleavage fragments, are not as toxic as

asbestiform fibers due to differences in physical properties and opines that there is no evidence

of increased change of mesothelioma from exposure to non-asbestiform amphi boles. See id.

Pulmonologist Dr. David Weill states that cleavage fragments "are naturally occurring and do

not meet the true definition of an asbestos fiber" and "there is no animal or human data that

implicates these fragments as a cause of disease". See Affirmation in Support, supra, Exh. H,

Report of Dr. David Weill dated September 1, 2022 at p. 66.

In opposition, plaintiff offers the opinions of four experts. Toxicologist Dr. James S.

Webber, Ph.D. states that the cleavage fragments are indistinguishable from asbestiform fibers

and that Vanderbilt talc contained asbestos fibers. See Mot. Seq. No. 001, Plaintiffs Affirmation

in Opposition to Defendant Donald Durham Company's Motion for Summary Judgment, Exh.

22, Report of Dr. Webber dated March 16, 2024 at p. 15, 39. In addition, Dr. Steven P. Compton,

Ph.D., conducted a study in 2023 in which he analyzed air samples from a test chamber

involving the mixing, hand sanding, and power sanding of a 1979 one pound container of

defendant Durham's water putty, and concluded that such activities released asbestos fibers in

greater quantities than ambient levels. See Plaintiffs Affirmation in Opposition, supra, Exh. 23,

Report of Dr. Compton dated September 7, 2023 at p. 2-3, 7. Industrial hygienist Kenneth S.

Garza, CIH, MS and Dr. Mark Ellis Ginsburg also base their opinions on simulation studies

performed on defendant Durham's putty and conclude that there are substantial asbestos fiber

inhalation levels when workers performed the same types of work as plaintiffs husband and that

the handling of asbestos contaminated clothes for laundering also creates substantial airborne

190302/2020 JENNIFER PEFANIS, AS EXECUTRIX FOR THE ESTATE OF ANNA M. BUCZYNSKI Page 4 of 7 vs. A.O. SMITH WATER PRODUCTS CO ET AL Motion No. 001 002

4 of 7 [* 4] INDEX NO. 190302/2020 NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 08/22/2024

asbestos fiber concentration levels. See Plaintiffs Affirmation in Opposition, supra, Exh. 25,

Report of Dr. Garza dated February 26, 2024 at p. 8, 193-196, and Exh. 26, Report of Dr.

Ginsburg dated February 29, 2023 at p. 30. Further, Dr. Ginsburg states that the findings of

defendant Durham's experts, Dr. Dotson and Dr. McNamee, are in sharp contrast with the

findings of Dr. Garza. Moving defendants reply. Here, the battle of the experts creates clear

issues of fact precluding summary judgment.

In addition, in toxic tort cases, the New York Court of Appeals has adopted a gross

negligence standard for the purposes of punitive damages, holding that punitive damages are

warranted when "the actor has intentionally done an act of an unreasonable character in disregard

of a known or obvious risk that was so great as to make it highly probable that harm would

follow and has done so with conscious indifference to the outcome." r Wesringhouse

Corp., 89 NY2d 955, 956-957 (1997)(internal quotations omitted). "The purpose of

punitive damages is not to compensate the plaintiff but to punish the defendant for wanton and

reckless, malicious acts and thereby to discourage the defendant and other people, companies

from acting in a similar way in the future". Matter 9 St. Crane Collapse Urig., 154 AD3d

139, 156 (1st Dep't 2017)(internal parentheses omitted).

Here, defendant Vanderbilt argues that plaintiffs punitive damages claims are

improperly pled and unfounded, as it relied on studies ensuring its product was safe and swiftly

responded to any controversy regarding asbestos. See Mot. Seq. No. 2, Memorandum of Law in

Support of Vanderbilt Minerals, LLC's Motion for Summary Judgment or, in the Alternative, for

Partial Summary Judgment, p. 20-22. Defendant Vanderbilt further argues that it was not

responsible for manufacturing, packaging, and placing warning labels on Donald Durham Rock

Hard Putty. Id at 22. This is insufficient to meet its burden at summary judgment. Defendant

190302/2020 JENNIFER PEFANIS, AS EXECUTRIX FOR THE ESTATE OF ANNA M. BUCZYNSKI Page 5 of 7 vs. A.O. SMITH WATER PRODUCTS CO ET AL Motion No. 001 002

5 of 7 [* 5] INDEX NO. 190302/2020 NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 08/22/2024

Vanderbilt has not offered any evidence that dispels with certainty questions of fact regarding

their level of recklessness or wanton disregard regarding asbestos in its talc. Plaintiffs have

submitted numerous documents indicating that defendant Vanderbilt was aware of the

contamination in its talc but continued to use the same talc without warning the public. See Mot.

Seq. No. 2, Plaintiff's Affirmation in Opposition to Defendant Vanderbilt Minerals, LLC's

Motion for Summary Judgment at p. 26-28. The Court notes that where a plaintiff provides

evidentiary facts tending to show that defendant's warnings were in any way deficient, the

adequacy of such warnings are a factual question that should be resolved by a jury. S'ee Eiser v

Feldman, 123 AD2d 583,584 (1986). The New York Court of Appeals has also held that "[a]

products liability action founded on a failure to warn involves conduct of the defendant having

attributes of negligence which the jury may find sufficiently wanton or reckless to sustain an

award of punitive damages." Hume Ins. Co. v American Home: Products Corp., 75 NY2d 196,

204 (1990) (internal citations omitted).

As a reasonable juror could decide that asbestos exposure from products purchased from

defendant Durham were a contributing cause of plaintiff's mesothelioma, and that defendant

Vanderbilt was on notice of its contaminated talc and that its subsequent conduct and usage of

such talc rises to the level required for punitive damages, sufficient issues of fact exist to

preclude summary judgment.

Accordingly, it is

ORDERED that defendants Donald Durham Company's and Vanderbilt Minerals, LLC's

motions for summary judgment seeking to dismiss (mot. seq. no. 001 and 002) are denied in their

entirety; and it is further

190302/2020 JENNIFER PEFANIS, AS EXECUTRIX FOR THE ESTATE OF ANNA M. BUCZYNSKI Page 6 of 7 vs. A.O. SMITH WATER PRODUCTS CO ET AL Motion No. 001 002

6 of 7 [* 6] INDEX NO. 190302/2020 NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 08/22/2024

ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this

Decision/Order with notice of entry.

This constitutes the Decision/Order of the Court.

8/21/2024 DATE ADAM SILVERA, J.S.C.

~ § CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

190302/2020 JENNIFER PEFANIS, AS EXECUTRIX FOR THE ESTATE OF ANNA M. BUCZYNSKI Page 7 of 7 vs. A.O. SMITH WATER PRODUCTS CO ET AL Motion No. 001 002

7 of 7 [* 7]