KATHERINE POLK FAILLA, District Judge:
In a career as an electrician that spanned nearly 50 years, Raymond Balcerzak worked numerous jobs in numerous locations. In 2011, Balcerzak was diagnosed with lung cancer; in 2014, he passed away. Prior to his death, in July 2013, Balcerzak filed the instant action in New York State Supreme Court against numerous manufacturers, alleging that his cancer was the product of decades of exposure to asbestos-containing products at his various workplaces. The case was removed to this Court, and the complaint was thereafter amended twice.
At the conclusion of discovery, several defendants filed motions for summary judgment; the motions of six of those defendants (collectively, "Defendants") remain pending, namely, those of: (i) Rockwell Automation, Inc., as successor-in-interest to Allen-Bradley Company, LLC ("Allen-Bradley"); (ii) BW/IP International, individually and as successor to Byron Jackson Pumps ("Byron Jackson"); (iii) Air & Liquid Systems, as successor-by-merger to Buffalo Pumps, Inc. ("Buffalo"); (iv) Gardner Denver, Inc. ("Gardner Denver"); (v) Schneider Electric Company, formerly known as Square D Co. ("Square D"); and (vi) Warren Pumps LLC ("Warren"). Defendants contend, among other things, that Plaintiff has failed to raise a genuine issue of material fact that exposure to any of their products was a substantial factor in causing Balcerzak's injuries. For the reasons set forth in the remainder of this Opinion, the Court grants the motions brought by Buffalo, Gardner Denver, Byron Jackson, Warren, and Square D; and denies the motion brought by Allen-Bradley.
Between 1957 and his retirement in 2000, Raymond Balcerzak worked at more than 20 different jobs, almost always as an electrician. (Def. 56.1 ¶ 12; Pl. 56.1 ¶ 219).
At base, Plaintiff alleges that Defendants negligently exposed Balcerzak to asbestos-containing products, proximately causing his lung cancer and consequent death. (SAC ¶ 83). Because Defendants' motions are largely predicated on claims that Plaintiff has failed to demonstrate Balcerzak's exposure to any of their respective products, the Court outlines the evidence of record concerning that exposure in the remainder of this section.
Plaintiff contends that Balcerzak's earliest exposure to asbestos occurred when he worked as an electrician on board several naval warships. Balcerzak enlisted in the U.S. Navy on March 6, 1956, and worked at the Brooklyn Navy Yard as a civilian employee beginning in October 1959. (Def. 56.1 ¶¶ 181, 200).
Plaintiff has clarified that "as to defendant Warren, plaintiff contends liability arises from [Balcerzak's] exposure on the U.S.S. Constellation." (Pl. Warren Opp. 1 n.1). In that regard, Balcerzak testified that his job aboard the U.S.S. Constellation involved "pull[ing] wire and cable," in addition to making wire guides and connecting wires to panels. (Def. 56.1 ¶ 201; Pl. 56.1 Response ¶ 201). While at the Brooklyn Navy Yard, all of Balcerzak's work took place in one of several engine rooms aboard the ship, though he could not recall in which particular engine room. (Def. 56.1 ¶¶ 204-05).
In connection with the instant motions, Plaintiff has claimed that Balcerzak's exposure to asbestos on the carriers occurred as a result of his exposure to pumps containing or insulated with asbestos. (Pl. Warren Opp. 3). Balcerzak did not install any pumps on the U.S.S. Constellation, and did not know the function of any pumps that were installed; he did, however, recall others installing the pumps, and specifically recalled observing others
Understandably, given the nature of his work on the ships, Balcerzak did not know the brand name or manufacturer name for any of the pumps that he saw being installed on the U.S.S. Constellation. (Def. 56.1 ¶ 207). At his deposition, Balcerzak thought that he recalled the manufacturer names for two of the pumps on that ship; neither one of those manufacturers was Warren. (Id. at ¶ 208). After the close of discovery, counsel for Plaintiff produced historical ships records for the U.S.S. Constellation and for the U.S.S. Independence, which Plaintiff argues demonstrate that Warren pumps were used in the engine rooms in both ships (including the engine room in which Balcerzak worked). (See, e.g., Stolzman Decl. Ex. 9-14).
Several other pump manufacturers have filed motions for summary judgment based on Balcerzak's failure to identify them as a manufacturer of a pump on either ship on which Balcerzak worked. With respect to Buffalo, for instance, Balcerzak was unable, throughout his deposition, to identify any products manufactured, sold, or supplied by that company as a source of his asbestos exposure. (Def. 56.1 ¶ 45). And although Balcerzak testified to witnessing pipefitters and millwrights perform work on pumps while aboard two U.S. Navy ships, he did not know the brand or manufacturer of these pumps. (Id. at ¶¶ 46-50).
Similarly, at his deposition, Balcerzak could not identify any product manufactured by Byron Jackson as a possible source of his exposure to asbestos. (Def. 56.1 ¶¶ 53-54). Balcerzak recalled observing millwrights and pipefitters on the U.S.S. Constellation working on pumps; he did not, however, recall the brand name, trade name, or manufacturers' names of those pumps. (Id. at ¶¶ 68-69). As noted, Balcerzak's only duty on that ship was "pulling wire" and "pulling cable," and he neither installed nor knew the function of such pumps. (Id. at ¶¶ 61, 70).
On May 9, 2014, Byron Jackson's counsel served a Stipulation of Discontinuance on Plaintiff's counsel, on the ground that there had been no product identification of anything manufactured by Byron Jackson. (Def. 56.1 ¶ 56; Markowitz Decl. Ex. A). On May 27 and June 30, 2014, Byron Jackson's counsel served two further Stipulations of Discontinuance. (Def. 56.1 ¶ 56). In response, on July 16, 2014 — two months after the close of document discovery — Plaintiff forwarded to Byron Jackson's counsel a single-page ship record that referenced "re-testing the Byron Jackson/Hardie Tynes main feed pump" aboard the U.S.S. Constellation. (Id. at ¶¶ 57-59; Markowitz Decl. Ex. B). However, the record does not indicate the location of any Byron Jackson pump aboard that ship or the date of its installation. (Def. 56.1 ¶ 59).
As with the other pump manufacturer Defendants, Balcerzak did not identify any Gardner Denver product as a source of his alleged asbestos exposure. (Def. 56.1 ¶¶ 131-32). On May 22, 2014, and again on July 18, 2014, Gardner Denver's counsel served Stipulations of Discontinuance on
While Balcerzak had difficulty identifying the relevant pump manufacturers, his memory was stronger with respect to other electrician's products with which he worked in the course of his career. With respect to movant Square D, Balcerzak recalled first that he worked with Square D's "limit switches,"
Balcerzak could not specifically identify at which jobs he worked with or around Square D switchgear and other equipment, remarking instead that such contact occurred "through [his] entire career," with the exception of six-month stints at the City of Phoenix and Western Electric. (Def. 56.1 ¶¶ 167, 170; Pl. 56.1 Response ¶¶ 167, 170; Pl. 56.1 Opp. ¶ 243). Balcerzak believed that he was exposed to asbestos from these Square D products during his time in the Navy based on a brochure he had read on the Internet at some point during the three years prior to his deposition. (Def. 56.1 ¶ 177).
Finally, with respect to movant Allen-Bradley, Balcerzak testified that he was exposed to asbestos through inspection and maintenance of Allen-Bradley arc chutes and switchgear. (Def. 56.1 ¶ 22). Balcerzak confirmed that he understood switchgear to be "high-voltage" equipment "that would be accepting power from the outside and sending it out to a building or location." (Id. at ¶ 23). He then clarified that this switchgear ranged in voltage from 480 to 13,800 volts. (Pl. 56.1 Opp. ¶ 23). Defendant Allen-Bradley has submitted evidence demonstrating that it did not
In addition to switchgear, Balcerzak testified that he was exposed to asbestos while removing, repairing, and replacing arc chutes in Allen-Bradley contactors. (Def. 56.1 ¶ 26).
Defendant Allen-Bradley asserts that Balcerzak could not have been referring to Allen-Bradley arc chutes in its contactors, as the company's arc chutes did not "snap in, snap out." (Def. 56.1 ¶¶ 28, 29). Further, Allen-Bradley argues that its contactors were designed with metal backing in order to preclude the need for Bakelite insulation, and thus, any use of Bakelite on its contactors was an unintended alteration. (Id. at ¶¶ 38, 41-43).
On July 25, 2013, Balcerzak filed his complaint in the New York State Supreme Court, New York County, designated as an "Asbestos Matter," against 28 manufacturers or their successors. (Dkt. #1-1). The matter was removed to this Court on September 4, 2013. (Dkt. #1). An initial pretrial conference was held on October 17, 2013 (Dkt. #11), and a case management plan (with discovery schedule) was endorsed by the Court on December 9, 2013. (Dkt. #45). The case management plan specified that fact discovery in the matter would conclude on May 16, 2014 (id.); by Order dated May 13, 2014, the Court extended the discovery deadline until July 11, 2014, only for the limited purpose of completing certain fact depositions. (Dkt. #125).
On February 28, 2014, Balcerzak filed his First Amended Complaint. (Dkt. #78). In it, he alleged causes of action for negligence, breach of implied and express warranties, failure to warn, fungible products, and unsafe workplace. (Id.). On March 3, 2015, after Balcerzak had passed away, Nanette Pace was substituted in as Plaintiff and filed a Second Amended Complaint, alleging the same claims as the First and adding a cause of action for wrongful death. (Dkt. #210).
The Court instructed those defendants contemplating a motion for summary judgment to file pre-motion submissions on or before September 4, 2014. (Dkt. #147). A pre-motion conference was then held on October 22, 2014. (Dkt. #184, 192, 200). Several defendants filed motions but resolved the cases against them by means of stipulations of dismissal. What remains are Defendants' motions for summary judgment.
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if all the submissions taken together "show that there is no genuine issue as to
The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. A fact is "material" if it "might affect the outcome of the suit under the governing law," and is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson). The movant may discharge this burden by showing that the nonmoving party has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir.2013) (finding summary judgment appropriate where the non-moving party fails to "come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on an essential element of a claim" (internal quotation marks omitted)).
If the moving party meets this burden, the nonmoving party must "set out specific facts showing a genuine issue for trial" using affidavits or otherwise, and cannot rely on the "mere allegations or denials" contained in the pleadings. Anderson, 477 U.S. at 248, 250, 106 S.Ct. 2505; see also Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548; Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and cannot rely on "mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986). Furthermore, "[m]ere conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir.1995) (internal quotation marks and citations omitted)).
"When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003). However, in considering "what may reasonably be inferred" from witness testimony, the court should not accord the non-moving party the benefit of "unreasonable inferences, or inferences at war with undisputed facts." Berk v. St. Vincent's Hosp. & Med. Ctr., 380 F.Supp.2d 334, 342 (S.D.N.Y.2005) (citing County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1318 (2d Cir.1990)).
In the Second Amended Complaint, Plaintiff brings negligence-based products liability claims against all Defendants for proximately causing Balcerzak's death by designing, processing, manufacturing, packaging, distributing, delivering, and/or installing asbestos-containing products to which Balcerzak was exposed. (SAC ¶ 97). Plaintiff also alleges (i) breaches of implied and express warranties that asbestos and asbestos-containing products were of good
At the outset, to make out a claim for products liability under New York law, a plaintiff must prove that "he was exposed to [the defendant's] merchandise and that it is more likely than not that this exposure was a substantial factor in his injury." Johnson v. Celotex Corp., 899 F.2d 1281, 1285-86 (2d Cir.1990) (citing Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666 (1980)). Typically, a plaintiff must "establish that his injury was proximately caused by [the defendant's] asbestos and produce evidence identifying each [defendant's] product as being a factor in his injury". Id. at 1286 (citing Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069 (1989)).
Nonetheless, "it is beyond any doubt that circumstantial evidence alone may suffice to prove adjudicative facts," and "[a]sbestos cases are no exception to that proposition." O'Brien v. Nat'l Gypsum Co., 944 F.2d 69, 72 (2d Cir.1991). As asbestos-related injuries may not manifest for decades after exposure, courts recognize the difficulty faced by plaintiffs of "identify[ing] the exact manufacturers whose products injured" them; thus, the Second Circuit will "find[] proof of causation sufficient in the absence of identification of the precise product that injured a given plaintiff." In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 836-37 (2d Cir.1992); see also Johnson, 899 F.2d at 1286-87 (upholding jury verdict and finding that circumstantial evidence proved causation where 11 fellow Brooklyn Navy Yard employees corroborated the presence of the defendants' asbestos products aboard particular ships during the time period the plaintiff worked on them); Kreppein v. Celotex Corp., 969 F.2d 1424, 1426 (2d Cir. 1992) (finding "proof of causation sufficient notwithstanding" the lack of exact product identification where (i) the plaintiff's coworker testified to the presence of the defendant's asbestos products and the dust they emitted at one worksite, (ii) evidence showed that employees like the plaintiff were exposed to asbestos dust from the defendant's products at two other worksites, and (iii) evidence showed the plaintiff breathed asbestos dust from the defendant's products at a fourth worksite); O'Brien, 944 F.2d at 72-73 (holding that
Still, "the plaintiff must show some circumstantial evidence that he was at the approximate place and approximate time during which the defendant's product was used." In re Joint E. & S. Dist. Asbestos Litig., No. 92 Civ. 1113 (RWS), 1993 WL 97301, at *2 (S.D.N.Y. Mar. 30, 1993) (emphasis in original). If a plaintiff fails to provide "responses to interrogatories or deposition testimony as to the location or timing of his alleged exposure to [the defendant's] products," he then "fail[s] to state sufficient facts upon which to base liability." Scheidel v. A.C. & S. Inc., 258 A.D.2d 751, 685 N.Y.S.2d 829, 831 (3d Dep't 1999) (citing In re New York City Asbestos Litig., 216 A.D.2d 79, 628 N.Y.S.2d 72, 80 (1st Dep't 1995)).
Defendants have attempted to discharge their burden under Rule 56 by challenging Balcerzak's product identification, arguing that upon the evidence presented, Plaintiff has failed to show Balcerzak's exposure to their respective products. In consequence, Plaintiff must put forth evidence sufficient to raise a triable issue of fact as to each Defendant's liability for exposing Balcerzak to asbestos. If Plaintiff fails to present sufficient evidence establishing exposure, the Court need not address Plaintiff's related claims against Defendants for breach of warranties, failure to warn, fungible products, or wrongful death.
Certain Defendants allege that Plaintiff's claims against them arise under maritime law. (See Warren Br. 11-12; Buffalo Br. 2). "General maritime law provides a cause of action for product liability, brought either under a theory of negligence or strict liability." Bray v. Ingersoll-Rand Co., No. 13 Civ. 1561 (SRU), 2015 WL 728515, at *4 (D.Conn. Feb. 19, 2015). To determine whether an alleged tort arises under maritime law, the Second Circuit has adopted the test first articulated by the Supreme Court in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), and described more recently by the Circuit in Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 248 (2d Cir.2014):
Id. (internal citations omitted).
The Second Circuit has stated that "contracts for shipbuilding, contracts to supply materials for ship construction[,] and warranties arising under such contracts" are "non-maritime." Keene Corp. v. United States, 700 F.2d 836, 844 (2d Cir. 1983). "Indeed, a tort arising out of work on an uncompleted vessel has been held to fall outside admiralty jurisdiction. General allegations that the contacts with asbestos took place in shipyards or even aboard launched vessels are thus insufficient to
Defendant Warren seeks summary judgment on the ground that there is "no material issue of fact as to whether a product for which Warren can be held legally responsible was a proximate cause of [Balcerzak's] alleged injuries." (Warren Br. 5). Given the paucity of evidence connecting any Warren product to Balcerzak's employment at the Brooklyn Navy Yard or anywhere else, the Court agrees.
Preliminarily, Warren argues — and Plaintiff does not contest — that Exhibits 9 through 16 of the Stolzman Declaration were not produced to Defendants during discovery and are therefore inadmissible. (Def. 56.1 Reply ¶¶ 277-85). In particular, Warren contends that Plaintiff acknowledged the lateness of the production during the October 22, 2014 pre-motion conference before the Court:
(Warren Reply 2-3 n.1).
"If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). "The intention of this preclusionary measure is to prevent the practice of `sandbagging' an opposing party with new evidence, and it applies on motions for summary judgment." Hooks v. Forman Holt Eliades & Ravin LLC, No. 11 Civ. 2767 (LAP), 2015 WL 5333513, at *4 (S.D.N.Y. Sept. 14, 2015).
"In determining whether to exclude evidence under this standard, a district court considers a nonexclusive list of four factors: (i) the party's explanation for its failure to disclose, (ii) the importance of the evidence, (iii) the prejudice suffered by the opposing party, and (iv) the possibility of a continuance." 523 IP LLC v. CureMD.Com, 48 F.Supp.3d 600, 634 (S.D.N.Y.2014). Beginning with the first of those factors, Plaintiff here has provided no explanation for her failure to disclose the additional documents appended to the declaration; in fact, in her opposition, Plaintiff does not even acknowledge Defendants' repeated objections, articulated in the 56.1 Reply, to consideration of these materials. "The burden to prove substantial justification or harmlessness rests with the dilatory party." Schiller v. City of New York, Nos. 04 Civ. 7921, 7922 (RJS) (JCF), 2008 WL 4525341, at *3 (S.D.N.Y. Oct. 9, 2008). The "complete lack of explanation thus weighs in favor of preclusion." 523 IP LLC, 48 F.Supp.3d at 638.
Conversely, the prejudice to Defendant stemming from Plaintiff's failure to disclose these documents during discovery is substantial: Warren was unable to conduct responsive discovery into these documents or to discuss them with Balcerzak during his deposition, necessarily (and, it is submitted, unfairly) compromising its ability to bring the instant motion; Warren would clearly be harmed by their consideration. The Court believes this disclosure, post-dating the close of discovery and Balcerzak's lengthy deposition and de bene esse testimony, embodies the precise "sandbagging" sought to be prevented by the Federal Rules of Civil Procedure. See Hooks, 2015 WL 5333513, at *4.
Finally, the Court has considered the possibility of a continuance. This matter was initially filed in September 2013; document discovery concluded in May 2014, nearly two years ago. (Dkt. #125). To reopen discovery now, after Balcerzak's death and after so much time has passed, would constitute an unwarranted delay and weighs in favor of preclusion.
Thus, three of the four factors weigh heavily against consideration of Plaintiff's additional evidence. Although the documents could serve an important role in Plaintiff's case, no justification has been proffered for their introduction at this late stage, and their consideration would substantially prejudice Warren. Accordingly, the Court will not consider Exhibits 9 through 16 of the Stolzman Declaration in evaluating this motion.
An additional preliminary issue concerns the proper law to apply. In the Second Amended Complaint, Plaintiff alleges that Warren's liability for Balcerzak's asbestos exposure stems only from the latter's work on the U.S.S. Constellation at the Brooklyn Navy Yard. (Pl. Warren Opp. 1 n.1). Because this claimed exposure occurred aboard a naval warship, Warren contends, maritime law should apply. (Warren Br. 11).
In evaluating whether Warren has established that Balcerzak's alleged exposure meets both the location test and the connection test discussed supra, the Court finds immediate difficulty with the first prong — whether the alleged tort "occurred on navigable water or was caused by a vessel on navigable water." Tandon, 752 F.3d at 248. During his deposition, Balcerzak did not recall at "what stage" of construction the U.S.S. Constellation was during his employment, stating: "I don't know what stage it was in, and I don't know how long it was going to continue. I know it continued a long time after I left." (Balcerzak Tr. 390 (emphasis added)). Balcerzak also indicated that, during the time he worked as an electrician on the U.S.S.
In Balcerzak's "Jobsite Specific Exposure History," disclosed in response to another defendant's Request for Interrogatories and Requests for Production, he indicated that while working for the U.S. Navy, he "was exposed to asbestos-containing products, including but not limited to, turbines, boilers, valves, gaskets, packing, steam traps, motors, [and] wire electrical panels." (LaSala Aff. Ex. F). The same chart indicates that Balcerzak did not recall, at that time, the names of any other workers or supervisors on that job site. (Id.).
In his deposition, Balcerzak testified that he worked as an electrician's helper on the U.S.S. Constellation, "pulling wire" and "pulling cable" in one of the ship's engine rooms. (Balcerzak Tr. 377, 381, 389-90). He later testified that he also made "wire guides" and connected wires to panels. (Id. at 423-24). Balcerzak spent about half of his time working in one of the four engine rooms on the ship and the other half of his time in the "guided missile room." (Id. at 382). He did not work on any other ships or have any other duties while working at the Brooklyn Navy Yard. (Id. at 382, 424-25).
With respect to his work in the engine room, Balcerzak also testified that he witnessed electricians and millwrights installing pumps, but he did not know "the brand name, trade name, or manufacturers' names of the pumps." (Balcerzak Tr. 405-06). When pressed, Balcerzak responded, "I'm not sure. But Ingersoll Rand comes to mind, or Worthington." (Id. at 406). Balcerzak indicated that he believed the motors in the engine room were manufactured by "mostly GE, Westinghouse," and he recalled only GE as a manufacturer of wiring for which he was responsible. (Id. at 384, 406). He further stated that while he observed others insulating pipes that were attached to pumps, he did not know the brand or manufacturer of the insulation. (Id. at 1022).
Warren argues that summary judgment is warranted because Balcerzak "never identified Warren as a manufacturer of pumps that he alleges contributed to his alleged asbestos exposure while in the United States Navy and while working at the Brooklyn Navy Yard." (Warren Br. 5). In opposition, Plaintiff argues that Warren admits to "sell[ing] various pumps for use on the USS Constellation where Mr. Balcerzak contends he was exposed while working to build the ship as a civilian electrician's helper." (Pl. Warren Opp. 1). However, Plaintiff fails to substantiate this claim with any admissible evidence.
Somewhat curiously, Plaintiff argues that summary judgment must be denied because "Warren has not presented any affirmative evidence that Mr. Balcerzak did not work[] in the vicinity where Warren's pumps were used or which shows that [he] was not exposed to defendant's pumps." (Pl. Warren Opp. 9 (emphases added)). This misstates Warren's burden; to succeed on its motion for summary judgment, Warren need not present affirmative evidence excluding the presence of its products. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548 (the movant discharges its burden if it shows the nonmoving party has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial"). On the contrary, Warren has demonstrated that Plaintiff failed to adduce evidence to create an issue of material fact. Absent any identification of Warren's products, allowing Plaintiff to defeat summary judgment here would require resort to "mere speculation [and] conjecture as to the true nature of the facts." Knight, 804 F.2d at 12.
Thus, because Plaintiff has offered no admissible evidence tying Warren's products to Balcerzak's tenure at the Brooklyn Navy Yard — not even an allegation by Balcerzak himself — the Court would be hard-pressed to determine that a reasonable jury could return a verdict for Plaintiff. Accordingly, Warren's motion for summary judgment is granted.
Defendant Square D likewise seeks summary judgment on the ground that "Plaintiff has failed to identify an actual Square D product, much less an asbestos-containing product, to which he was allegedly exposed." (Square D Br. 2). Further, Square D argues that Plaintiff "has provided no evidence to connect any allegedly injurious product to any period of time, employer, or location," as Balcerzak claimed that "all manufacturer defendants were represented at all worksites throughout his forty-four year career." (Id. at 5). The Court agrees with the latter argument, and for this reason grants Square D's motion.
At the outset, Square D contends that Plaintiff has failed to meet the standard for product identification: Because Plaintiff refers only to Balcerzak's exposure through Square D's "switchgear" — which the company calls "a general product category that could contain any number of electrical equipment products" — Square D argues that Plaintiff has not
In response, Plaintiff argues that Balcerzak "in fact testified to working on numerous types of asbestos-containing products manufactured by Square D, to which he attributes his exposure to asbestos." (Pl. Square D Opp. 1-2). Specifically, Plaintiff notes that Balcerzak "testified to working with and around various [Square D] equipment" — including switchgear, arc chutes, limit switches,
Both sides agree that Balcerzak testified that he worked on Square D switchgear. (Balcerzak Tr. 971, 975). He stated that this switchgear served numerous purposes, including powering motor rooms, individual motors, transformers, and remelt furnaces. (Id. at 975). Further, Balcerzak testified as to his belief that he was exposed to asbestos through the process of repairing this switchgear — specifically, "blowing out" the damaged arc chute component parts using compressed air, which created "[asbestos] dust in the air." (Id. at 984-85, 989-90). That said, Balcerzak did not specifically recall where in his career he witnessed or aided in blowing out damaged arc chutes from Square D switchgear. (Id. at 989, 995).
When asked to describe the arc chutes found within Square D switchgear, Balcerzak described them as approximately four inches wide by two inches thick, and he indicated that they were smooth and "[p]robably a whitish-gray," but could be "[m]ore of a fiber" or "stranded" appearance when worn. (Balcerzak Tr. 991-93). Balcerzak believed these arc chutes were manufactured by Square D because he recalled seeing the words "Square D" or the company's logo on the box of replacement arc chutes. (Id. at 997-98). Balcerzak also recalled seeing "Square D" or the company's logo on a nameplate mounted on or inside of switchgear. (Id. at 1029-30).
This Court is bound, on summary judgment, to "construe the facts in the light most favorable" to Plaintiff and to "resolve all ambiguities and draw all reasonable inferences against" Defendant. Dallas Aerospace, Inc., 352 F.3d at 780. Here, Balcerzak described with some particularity the Square D product line with which he worked, and he proffered a theory as to how that product line potentially exposed him to asbestos. Although Square D contests this testimony, maintaining that Balcerzak's identification of "switchgear" and "arc chutes" is too imprecise to survive a motion for summary judgment, the Court finds that the detail with which Balcerzak identified and described the switchgear
Identification of products is not, however, the end of the inquiry. Square D further argues that Plaintiff "has provided no evidence to connect any allegedly injurious product to any period of time, employer, or location," only alleging that "all manufacturers were represented at all worksites throughout his forty-four year career." (Square D Br. 5). This argument has greater traction. When asked during his deposition where he worked with Square D's switchgear, Balcerzak could only respond, "I cannot get a specific place, but it could be one or all of the places where I worked," except the City of Phoenix and Western Electric. (Balcerzak Tr. 977 (emphasis added)). When pressed, Balcerzak stated: "I worked at many companies and doing many things. They could be at — like I said, at one of them; more likely than not at several of them. But if you're saying specific, I cannot say, and I don't remember. And I also don't remember the date." (Id. at 978). Balcerzak testified with no greater specificity as to where he encountered Square D switchgear products. Without more evidence tying its products to Balcerzak's employment, Square D argues, Plaintiff's claims cannot stand. (Square D Br. 5-6).
As discussed above, courts within the Second Circuit have relaxed the product identification requirements for asbestos exposure cases, permitting plaintiffs to present circumstantial evidence of causation and of the presence of a defendant's product at a particular location. See Johnson, 899 F.2d at 1286-87; O'Brien, 944 F.2d at 72-73; Kreppein, 969 F.2d at 1426. In some cases, coworker testimony or similar documentation can fill in any gaps in a plaintiff's memory and thereby substantiate the plaintiff's claims. In other cases, evidence circumscribing the period of time within which a plaintiff was exposed to asbestos can enhance the likelihood that products encountered during that period were causally connected to a later asbestos-related illness. Here, however, Balcerzak could do neither: Balcerzak was simply unable to connect his exposure to any particular time, place, or employer, repeatedly speaking in terms of what "could be" and linking it with "one or all" of his many employers. (Balcerzak Tr. 974, 976-78). This inexactitude far exceeds the leeway afforded asbestos plaintiffs under the law.
Unlike cases in which a plaintiff introduces co-worker testimony substantiating the presence of particular companies' products during the time and place of that plaintiff's employment, Plaintiff here offers no analogous corroborative evidence. As a result, Square D is left in the untenable position of defending itself against alleged exposure at a laundry list of worksites over a protracted period of time. According to an affidavit submitted by Balcerzak in a prior asbestos claim, he worked at a total of 15 locations between 1956 and 1979, the period during which he believed he was exposed to asbestos. (LaSala Aff. Ex. Q). Balcerzak further testified as to his belief that he was exposed to asbestos from Square D's switchgear at all of these jobs except two — the City of Phoenix, where he worked for approximately six months, and Western Electric, where he also worked for about six months. (Balcerzak Tr. 454, 700). Thus, during the course of approximately 23 years, Balcerzak has
While it is unfortunate for Plaintiff that Balcerzak could not identify coworkers or supervisors to testify to the specific presence of asbestos-containing products manufactured by Square D at any of his prior places of employment, permitting his claims to go forward against Square D based solely on Balcerzak's vague allegations would deny Square D a fair opportunity to defend itself. See In re Joint E. & S. Dist. Asbestos Litig., 1993 WL 97301, at *2 ("[T]he plaintiff must show some circumstantial evidence that he was at the approximate place and approximate time during which the defendant's product was used" (emphasis in original)); see also Scheidel, 685 N.Y.S.2d at 831 (granting summary judgment where "decedent was unable to provide responses to interrogatories or deposition testimony as to the location or timing of his alleged exposure to [defendant's] products").
Consequently, although it disagrees with Square D as to the sufficiency of Plaintiff's product identification, the Court nonetheless finds that Plaintiff has not raised an issue of fact connecting a Square D product to any particular employer or time period. Requiring Square D to prove a negative — to demonstrate as a matter of law that it could not have exposed Balcerzak to asbestos at each and every one of his places of employment over a period of decades — would constitute a perversion of the summary judgment standard. Accordingly, Square D's motion for summary judgment is granted.
In seeking summary judgment, Allen-Bradley argues that Plaintiff bases its alleged liability on three exposure scenarios — namely, Balcerzak (i) working on Allen-Bradley switchgear, (ii) removing and replacing arc chutes included in Allen-Bradley's contactors, and (iii) removing and replacing insulation on Allen-Bradley's contactors — none of which is possible. (Allen-Bradley Br. 2-5). According to Allen-Bradley, Plaintiff misidentifies the subject products as manufactured by it, and thus, the Court must grant summary judgment in its favor. (Id. at 5). Here, however, the materials submitted by Allen-Bradley come close, but do not overcome the genuine issue of material fact raised by Plaintiff concerning Balcerzak's exposure to asbestos while working with certain Allen-Bradley products. For this reason, Allen-Bradley's motion for summary judgment is denied.
Concurrent with her opposition to Allen-Bradley's motion for summary judgment, Plaintiff submitted a document styled as "Evidentiary Objections to, and Motion to Strike, Evidence Submitted in Support of Defendant Rockwell Automation, Inc., as successor-in-interest to Allen-Bradley Company LLC's Motion for Summary Judgment" ("Pl. Mot. Strike"). In it, Plaintiff argued that the two affirmations of Allen-Bradley's corporate representative Stan Ho, and the one affirmation of its counsel Joseph P. LaSala, were inadmissible. (Pl. Mot. Strike 2). Specifically, Plaintiff argued that neither Ho nor LaSala had "personal knowledge" of the facts at issue, and thus, they were not competent to testify. (Id. at 2-3). Further, Plaintiff claimed that Ho and LaSala proffered impermissible legal conclusions under the guise of factual assertions. (Id.).
A "court may strike portions of an affidavit that are not based upon an affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements." Searles v. First Fortis Life Ins. Co., 98 F.Supp.2d 456, 461 (S.D.N.Y.2000) (internal citations omitted); accord United States v. Alessi, 599 F.2d 513, 514-15 (2d Cir.1979). Nonetheless, it is "axiomatic that a corporate representative may testify and submit affidavits based on knowledge gained from a review of corporate books and records." Harrison-Hoge Indus., Inc. v. Panther Martin S.R.L., No. 05 Civ. 2851 (JFB) (ETB), 2008 WL 905892, at *28 (E.D.N.Y. Mar. 31, 2008). "Thus, to the extent [Ho's affirmation] is based upon his review of [Allen-Bradley's] books and records, or other documents he reviewed in his official capacity as corporate representative, it can be considered under Rule 56(e)." Id. As Ho affirms, (i) he has testified as Allen-Bradley's corporate representative previously and (ii) he has "perform[ed] research regarding current and historic products manufactured, sold and/or distributed by Allen-Bradley," rendering him "fully familiar with and knowledgeable about Allen-Bradley historic product lines." (LaSala Aff. Ex. S at ¶¶ 3, 5). Thus, this Court finds Ho competent to testify.
Additionally, it is "well established that an attorney's affidavit can be used, in connection with a summary judgment motion, to place documents produced in discovery before the Court." Harrison-Hoge Indus., Inc., 2008 WL 905892, at *27 (collecting cases). That is essentially what LaSala did in his affirmation, and the Court is capable of discerning from that affirmation what statements were made on the basis of LaSala's firsthand knowledge; what statements are summaries of evidence in the record; and what documents the Court should review in determining the accuracy of those summaries.
Thus, the Court has evaluated whether the two affirmations are based on "personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements," Searles, 98 F.Supp.2d at 461, and it has concluded that the affirmations of Stan Ho and Joseph P. LaSala are admissible. Plaintiff's Motion to Strike is denied in its entirety.
During his deposition, Balcerzak testified that he had been exposed to asbestos through his work with Allen-Bradley switchgear; as with Square D switchgear, Balcerzak indicated that he worked with this equipment at "[e]very place in [his] career." (Balcerzak Tr. 922-23). At one point in his deposition, Balcerzak
Corporate representative Stan Ho avers that Allen-Bradley did not manufacture the specific type of switchgear about which Balcerzak testified:
(LaSala Aff. Ex. S ¶ 7). Plaintiff contests the sufficiency of Ho's statements, arguing that the affirmation falls short because Ho fails to describe any switchgear that Allen-Bradley did manufacture. (Pl. Allen-Bradley Opp. 12-14). However, whether Allen-Bradley manufactured other switchgear, not referenced by Balcerzak, is irrelevant to the question of Balcerzak's exposure vel non to the switchgear to which he actually referred during his deposition.
Next, Plaintiff takes issue with Ho's reference to "high-voltage electric current" in his description of the alleged switchgear, noting that Balcerzak described switchgear ranging from 480 to 13,800 volts. (Pl. Allen-Bradley Opp. 12; Balcerzak Tr. 923). Plaintiff contends, citing testimony from Ho in a separate case, that this represents a range of "low" to "ultra-high" voltage. (Pl. Allen-Bradley Opp. 12). Although the Ho Affirmation is regrettably sparse, the Court sees no basis to conclude that Ho reviewed and referenced only snippets of Balcerzak's deposition transcript. Indeed, the switchgear was repeatedly called "high-voltage" on the very same page that Balcerzak defined that range as 480 to 13,800 volts. (Balcerzak Tr. 923). And, given the number of times the parties each explicitly mentioned that full range of voltage — 480 to 13,800 volts — and labeled it "high-voltage" (see, e.g., id. at 922, 923, 924), the Court can only conclude that Ho was simply adopting the parties' definition of the term. Those challenges resolved, the Court accepts Ho's testimony, and concludes that Plaintiff has not demonstrated Balcerzak's exposure to Allen-Bradley switchgear.
Next, Allen-Bradley disputes that Balcerzak was exposed to asbestos during his work removing and replacing arc chutes from Allen-Bradley contactors. (Allen-Bradley Br. 4-5). In his deposition, Balcerzak stated that he would inspect these arc chutes, and if they were frayed or no longer properly coated, he would replace them. (Balcerzak Tr. 929-30). Balcerzak believed that his work on these arc chutes exposed him to asbestos. (Id.). Balcerzak was then asked about the arc chutes, "[w]hen you pulled them out, did they just snap out and snap back in?" (Id. at 930). He responded, "[m]ost of them just snap in, snap out." (Id.).
In seeking summary judgment, Allen-Bradley argues that Balcerzak misidentified these arc chutes as an Allen-Bradley product because, it claims, Allen-Bradley arc chutes did not snap in and out, but rather attached by metal screws. (Allen-Bradley Br. 9). In making this argument, Allen-Bradley relies wholly on the Ho Affirmation, which states in relevant part: "Finally, Mr. Balcerzak stated that he might have been exposed to asbestos from replacing `arc chutes' on some contactors. He stated that these arc chutes snapped on and off. `Arc chutes' on Allen-Bradley contactors did not snap on and off but were attached with metal screws." (LaSala Aff. Ex. S ¶ 12).
Contesting this, Plaintiff argues that the Ho Affirmation does not clearly refute Balcerzak's deposition testimony; Balcerzak testified only that "most of [the arc chutes] just snap in, snap out." (Pl. Allen-Bradley Opp. 14-15; see Balcerzak Tr. 930 (emphasis added)). Indeed, Plaintiff states, it was Allen-Bradley's counsel who initially put forth the "snap out and snap back in" language, and it was Allen-Bradley's counsel who failed to adduce (or elected not to adduce) whether there were other methods by which arc chutes could be removed and replaced. (Pl. Allen-Bradley Opp. 15). In any event, neither side probed Balcerzak's understanding of what "snap in, snap out" would mean in practice. (Balcerzak Tr. 930).
As a result, the Court finds there is a genuine issue of material fact as to whether Balcerzak repaired and replaced any arc chutes in Allen-Bradley contactors. While the Court accepts as true Ho's statement that Allen-Bradley arc chutes attached by metal screws, Plaintiff nonetheless "set[s] forth specific facts showing that there is a genuine issue for trial" on this point. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Accordingly, summary judgment must be denied.
Although the rejection of Allen-Bradley's argument regarding arc chutes is sufficient to warrant denial of its summary judgment motion, the Court takes this opportunity to address the company's related argument regarding Balcerzak's replacement of asbestos-containing insulation on the backing of Allen-Bradley contactors.
In its motion, again relying on the Ho Affirmation, Allen-Bradley argues that its "contactors did not require and were not manufactured with an insulating material between the contactor and its metal enclosure. Allen-Bradley contactors were designed to eliminate the need for any insulation and were designed for a metal-to-metal installation." (Allen-Bradley Br. 5). However, the Ho Affirmation is not so clear. As it states:
(LaSala Aff. Ex. S ¶¶ 8-9). Later on, Ho affirms:
(Id. at ¶ 11).
Ho concludes that the use of a metal backing for Allen-Bradley contactors precludes Balcerzak's exposure to asbestos via replacement of a Bakelite material attached to that backing. But nowhere in his Affirmation does Ho actually state that this metal backing did not — and more importantly, could not — accommodate Bakelite between the backing and the metal housing. On the contrary, Ho's description of the contactor matches that given by Balcerzak; they both indicate that the contactor was metal, as was the housing. (LaSala Aff. Ex. S ¶ 9; Balcerzak Tr. 932).
The Ho Affirmation also appends advertisements from 1933 and 1934, purporting to show "that Allen-Bradley switched from using slate backing plates to metal backing plates." (LaSala Aff. Ex. S ¶ 10). However, the Court does not see how these advertisements — which predate by several decades any exposure of Balcerzak to asbestos — preclude the possibility that Allen-Bradley contactors used asbestos-containing insulation between the metal backing and the metal housing, as Balcerzak testified.
Put simply, the Ho Affirmation leaves open the possibility that Balcerzak was exposed to asbestos during the maintenance and repair of Allen-Bradley contactors. It does this in two ways: First, it fails to substantiate the "metal-to-metal" structure described in Allen-Bradley's motion (Allen Bradley Br. 5); more specifically, it fails to refute Balcerzak's testimony of a "metal-to-Bakelite-to-metal" structure.
In addition to the three contested motions discussed in this section, three other defendants have filed unopposed motions for summary judgment. Nonetheless, even where summary judgment is unopposed, "the moving party must still establish that the undisputed facts entitle him to a judgment as a matter of law." Vt. Teddy Bear Co., Inc. v. 1-800 BEARGRAM Co., 373 F.3d 241, 246 (2d Cir.2004) (internal quotation marks omitted). Here, Buffalo, Byron Jackson, and Gardner Denver have made sufficient showings that there are no genuine issues of material fact, and they are entitled to judgment as a matter of law.
At the outset, Buffalo argues that maritime law applies to its motion. Based on Keene, 700 F.2d at 844, maritime jurisdiction could only lie with respect to Balcerzak's time aboard the U.S.S. Lake Champlain, as the Court has already concluded that the U.S.S. Constellation was not operable and on navigable waters during Balcerzak's tenure. (See Balcerzak Tr. 390, 1020). Even with regard to the U.S.S. Lake Champlain, however, the Court is not certain, based on the parties' submissions and the law of the Second Circuit, whether Buffalo's products were "designed specifically" for maritime use. See Keene, 700 F.2d at 844. Nonetheless, the Court need not make this determination, as Plaintiff fails to establish product identification, requisite even under the more plaintiff-friendly New York standard.
Defendant Buffalo contends that there are no issues of material fact and that it is entitled to judgment as a matter of law, since Balcerzak failed to identify its product at any place of employment. (Def. 56.1 ¶ 45). Although Balcerzak indicated that he worked aboard two ships on which pipefitters and millwrights installed and repaired pumps, he did not know the manufacturer or brand of these pumps. (Id. at ¶¶ 46-50). At one point, Balcerzak referenced Ingersoll-Rand and Worthington Pumps, but he did not actually know where these pumps were used. (Id. at ¶ 51).
Buffalo correctly argues that "Plaintiff has failed to proffer any evidence that [Balcerzak] was exposed to asbestos fibers released from any asbestos-containing
Because Plaintiff has failed to offer any evidence that Balcerzak was exposed to Buffalo products, including any deposition testimony by Balcerzak, the Court need not consider whether Buffalo-manufactured products could have been a "substantial factor" in causing Balcerzak's illness. See Johnson, 899 F.2d at 1285-86. Under either maritime or New York law, Plaintiff must establish the role of Buffalo products in injuring Balcerzak, and Plaintiff plainly has not done so. Accordingly, Buffalo's motion for summary judgment is granted.
Defendants Byron Jackson and Gardner Denver, moving jointly for summary judgment, argue that they are entitled to same because Balcerzak failed to identify their products as sources of his asbestos exposure in his interrogatory responses, including his "Jobsite Specific Exposure History," or in his deposition testimony. (Def. 56.1 ¶¶ 53, 131; Byron Jackson/Gardner Denver Br. 2, 5). In July 2014, Plaintiff forwarded to each of these parties a "purported ship record that was the alleged basis" for her "refusal to discontinue" these actions (Markowitz Decl. Ex. B; Dean Decl. Ex. H), but these documents were not disclosed until two months after the close of fact discovery. (Def. 56.1 ¶¶ 57, 59, 136-38). For the reasons set forth above with regard to the other exhibits in the Stolzman Declaration, see supra at 265-67, these documents will not be considered on summary judgment.
Accordingly, in the absence of evidence of Balcerzak's exposure to Byron Jackson or Gardner Denver products at any worksite during his career, the joint unopposed motion of Byron Jackson and Gardner Denver for summary judgment is granted.
For the reasons discussed herein, the summary judgment motions of Defendants Warren, Square D, Buffalo, Gardner Denver, and Byron Jackson are GRANTED, and the summary judgment motion of Defendant Allen-Bradley is DENIED. The Clerk of Court is directed to terminate the motions at docket entries 214, 217, 228, 231, 239, and 257.
The parties remaining in this litigation are ORDERED to appear for a pretrial conference on Wednesday, April 20, 2016, at 3:00 p.m., in Courtroom 618 of the Thurgood Marshall Courthouse, to discuss next steps in this litigation.
SO ORDERED.
Defendants' opening and reply briefs will be referred to using the conventions "[Moving Defendant] Br." and "[Moving Defendant] Reply," and Plaintiff's opposition briefs will be referred to using the convention "Pl. [Moving Defendant] Opp."
Citations to a party's Rule 56.1 Statement incorporate by reference the documents cited therein. Where facts stated in a party's Rule 56.1 Statement are supported by testimonial or documentary evidence, and denied with only a conclusory statement by the other party, the Court finds such facts to be true. See S.D.N.Y. Local Rule 56.1(c) ("Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a corresponding numbered paragraph in the statement required to be served by the opposing party."); id. at 56.1(d) ("Each statement by the movant or opponent ... controverting any statement of material fact[] must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).").
In the Matter of N.Y. State Silicone Breast Implant Litig., 166 Misc.2d 85, 631 N.Y.S.2d 491, 493-94 (N.Y.Sup.Ct.1995) (collecting cases).
