Shuman v. Pfizer, Inc.

2024 NY Slip Op 33845(U)

• Court: New York Supreme Court, New York County
• Decided: October 28, 2024
• Docket: Index No. 190115/2020
• Status: Unpublished

Opinion

Shuman v Pfizer, Inc. 2024 NY Slip Op 33845(U) October 28, 2024 Supreme Court, New York County Docket Number: Index No. 190115/2020 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. 190115/2020 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 10/28/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 13 Justice -----------------------X INDEX NO. 190115/2020 FRANCINE SHUMAN, MOTION DATE Plaintiff, MOTION SEQ. NO. _ _ _0;_;;_0=2_ _ -v- PFIZER, INC.,INDIVIDUALLY AND AS SUCCESSOR-IN- INTEREST TO COTY, RITE AID OF NEW YORK, INC.,RITE AID OF NEW YORK CITY, INC.,WALGREEN EASTERN CO., INC.,INDIVIDUALL Y AND AS SUCCESSOR- ININTEREST TO RITE-AID, BRENNTAG NORTH AMERICA, AS A SUCCESSOR-IN-INTEREST TO MINERAL PIGMENT SOLUTIONS, INC.,AS A SUCCESSOR-IN INTEREST TO WHITTAKER, CLARK & DANIELS, INC.,BRENNTAG SPECIALTIES, INC.,F/K/A MINERAL PIGMENT SOLUTIONS, INC.,AS A SUCCESSOR-IN INTEREST TO WHITTAKER, CLARK & DANIELS, INC.,COTY, INC.,CYPRUS AMAX MINERALS DECISION + ORDER ON COMPANY, DUANE READE, INC.,INDIVIDUALLY AND AS MOTION SUCCESSOR-IN-INTEREST TO ROCK BOTTOM STORES, INC.,JOHNSON & JOHNSON, JOHNSON CONSUMER COMPANIES, INC.,JOHNSON & JOHNSON HEALTH AND WELLNESS SOLUTIONS, INC.,KOLMAR LABORATORIES, INC.,WALGREENS BOOTS ALLIANCE, INC.,INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO DUANE READE, WALGREEN EASTERN CO., INC.,INDIVIDUALLY AND AS SUCCESSOR-IN- INTEREST TO RITE-AID, WALGREEN CO., INC.,WHITTAKER, CLARK & DANIELS, INC.,

Defendant.

------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 106, 107, 108, 109, 110,111,112,113,114,115,116,117,118,119,120,121,122,125,126,127,128,129,130,131,132, 133,134,135,136,137,138,139,140,141,142,143,144,145,146,147,148,149,150,151,152,153, 154,155,156,157,158 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER

Upon the foregoing documents and for the reasons set forth below, the Court denies the

motion for summary judgment by defendant Kolmar Laboratories, Inc. ("Defendant"), pursuant

to CPLR § 3212.

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Defendant moves for summary judgment on the grounds that plaintiff, Francine L.

Shuman ("Plaintiff'), has not established that she was exposed to any asbestos-containing

product manufactured by Defendant; that, even if she has established exposure, she has not

established that any such product caused her cancer; and that, even if she has established

exposure and causation, Defendant still bears no liability because any such product was

manufactured per the specifications of co-defendant Johnson & Johnson, which Defendant was

contractually obliged to follow. See Memorandum of Law in Support of Motion for Summary

Judgment by Kolmar Laboratories, Inc., dated September 24, 2021, at 15-25.

In opposition, Plaintiff argues that Defendant has confirmed its active role in

manufacturing a product at issue, that Plaintiff's experts have offered sufficient evidence that

Plaintiff was exposed to and harmed by such product, and that Defendant can be held liable for a

product it manufactured despite its contractor status. See Affirmation in Opposition to Defendant

Kolmar Laboratories Inc.'s Motion for Summary Judgment at 13-18. Defendant replies that it

has met its burden on summary judgment, reiterating the arguments in its original motion. See

Memorandum of Law in Support of Motion for Summary Judgment by Kolmar Laboratories,

Inc., dated November 18, 2021, at 2-22.

Summary judgment is a drastic remedy. See Alvarez v Prospect Hosp., 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". Winegrad v New York Univ. Med Ctr., 64 NY2d 851, 853

(1985). To meet this initial burden, the moving defendant must do more than "argue that plaintiff

could not affirmatively prove causation"; it must "affirmatively prove, as a matter oflaw, that

there was no causation." Dyer v Amchem Products Inc., 207 AD3d 408,409 (1st Dep't 2022);

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see also Reid v Georgia-Pac. Corp., 212 AD2d 462,463 (1st Dep't 1995) (noting that, on a

motion for summary judgment, the moving defendant must "unequivocally establish that its

product could not have contributed to the causation of plaintiffs injury"). The failure to make

such an affirmative showing requires denial of the motion without probing the sufficiency of the

plaintiffs opposing papers. See Winegrad, 64 NY2d at 853.

Even if the moving defendant makes a prima facie showing that it is entitled to judgment

as a matter oflaw, the court should deny a summary judgment motion if the plaintiff's opposing

papers present admissible evidence establishing that a genuine issue of fact remains. See

Zuckerman v City of New York, 49 NY2d 557, 560 (1980). One way that a plaintiff may do so is

by pointing to "competing causation evidence," which "constitue[s] the classic 'battle of the

experts,"' sufficient to raise a question of fact and to preclude summary judgment. Sason v Dykes

Lbr. Co., 221 AD3d 491, 492 (1st Dep't 2023), quoting Shillingford v New York City Tr. Auth,

147 AD3d 465,465 (1st Dep't 2017).

"In determining whether summary judgment is appropriate, the motion court should draw

all reasonable inferences in favor of the nonmoving party and should not pass on issues of

credibility." Garcia v J.C. Duggan, Inc., 180 AD2d 579,580 (1st Dep't 1992)(internal citation

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

Century-Fox Film Corp., 3 NY2d 395,404 (1957), quoting Esteve v Abad, 271 AD 725, 727 (1st

Dep't 1947) (internal quotation marks omitted). As such, summary judgment is rarely granted in

negligence actions unless no conflict exists in the evidence. See Ugarriza v Schmieder, 46 NY2d

471, 475-476 (1979).

Here, Defendant confuses who has the burden of proof at the summary judgment stage,

arguing that Plaintiff has failed to prove causation. Defendant's arguments focus largely on

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Plaintiffs inability to pinpoint how much, if any, of Defendant's product she used. But, at this

stage, Plaintiff need only raise a triable issue of fact concerning specific causation. Defendant

has confirmed that it manufactured a product at issue during the period of Plaintiffs exposure.

Furthermore, there is conflicting evidence as to the extent of Defendant's involvement with, and

as to Defendant's knowledge of the dangers of, the product. Thus, Defendant has failed to

"unequivocally establish that its product could not have contributed to the causation of

[P]laintiff s injury." Reid, 212 AD2d at 463. As Defendant has failed to meet its initial burden on

a motion for summary judgment, and issues of fact exist, summary judgment must be denied.

Accordingly, it is

ORDERED that Defendant's motion for summary judgment is denied in its entirety; and

it is further

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.

10/28/2024 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

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