On September 01, 2015 a Motion-Secondary was filed involving a dispute between Shirley Godfrey, Shirley Jo Godfrey As Executrix Of The Estate Of Robert C. Godfrey, and Algoma Hardwoods, Inc., American Biltrite, Inc., Individually And As Successor To Amtico Floors, A.O. Smith Water Products, Basic, Inc., Bird Incorporated F K A Bird & Son, Inc., Borg Warner Corporation, By Its Successor In Interest, Borg Warner Morse Tec Inc., Burnham Corporation, Carrier Corporation, Cbs Corporation, A Delaware Corporation, F K A Viacom Inc, Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation, Certain-Teed Corporation, Cleaver Brooks Company F K A Aqua Chem, Inc., Conwed Corporation F K A Wood Conversion Company, Crane Co., Crown Boiler Co., Dap, Inc., K N A La Mirada Products Co., Inc., Domco Products Texas, Inc., D B A Tarkett Inc., Individually And As Successor To Azrock Industries, Inc., Ecr International, Inc., Individually And As Successor To Dunkirk, Dunkirk Boilers, And Utica Boilers, General Electric Company, Georgia-Pacific Corporation, Individually And As Successor To Bestwall Gypsum Company, Homasote Company, Inc., Honeywell International, Inc., Individually And F K A Alliedsignal, Inc., And As Successor In Interest To The Bendix Corp., International Paper Company, F K A Hammermill Paper Co. And Individually And As Successor To Us Plywood, Kaiser Gypsum Company, Inc., Lehrer Mcgovern Lehrer Llc, Mannington Mills, Inc., Metropolitan Life Insurance Company, New Yorker Boiler Company, Inc., Peerless Industries, Inc., Pfizer, Inc., Rheem Manufacturing Corp., Strober Organization, Inc., Turner Construction Company, Union Carbide Corporation, Weil Mclain, A Division Of Marley Wylain Company, Weyerhauser Corporation, Whiting Turner, York International Corporation, Individually And As Successor To Frick Company, for Asbestos in the District Court of New York County.
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FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 04/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------X SHIRLEY JO GODFREY, Individually and as Executrix of the Estate of ROBERT C. GODFREY, deceased Index No.: 190280/2015 Plaintiffs, -against- AFFIRMATION IN SUPPORT OF DOMCO PRODUCTS TEXAS A.O. SMITH WATER PRODUCTS, et al, INC.’S NOTICE OF MOTION FOR SUMMARY JUDGMENT Defendants. --------------------------------------------------------------X SUZANNE M. HALBARDIER, an attorney admitted to the Bar of the State of New York, hereby affirms under penalty of perjury as follows: 1. I am a partner at the law firm of Barry McTiernan & Moore LLC, attorneys for defendant, Domco Products Texas, Inc., s/h/a Azrock Industries, Inc. (hereinafter “Domco”) in this matter. I am fully familiar with the facts and circumstances of this action based upon the file maintained by my office. I submit this affirmation in support of Domco’s Motion to Dismiss and/or for Summary Judgment based upon lack of personal jurisdiction and that any potential exposure to asbestos from Domco flooring did not contribute to the development of Plaintiff’s disease; or, in the alternative, granting Domco a Frye hearing to determine the foundational adequacy and admissibility of Plaintiffs’ experts’ opinions regarding causation. 2. Plaintiffs have failed to establish that the Court has jurisdiction over Domco in this action. Specifically, Plaintiffs must establish that (i) New York law confers jurisdiction over Domco, and (ii) the exercise of jurisdiction over Domco comports with the Due Process Clause of the United States Constitution, which requires that any exercise of jurisdiction be consistent with “traditional notions of fair play and substantial justice. 1 of 4 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 04/16/2019 3. Plaintiffs’ cannot satisfy this burden; their claims against Domco have nothing to do with the State of New York. Domco is a Delaware corporation with its corporate headquarters and principal place of business in Ohio. Additionally, Plaintiffs’ claims against Domco solely arise from his alleged exposure to Domco floor tile at Bradford College in Haverhill Massachusetts. On these facts, New York law does not confer jurisdiction over Domco. Even if New York law conferred jurisdiction over Domco in this case, exercising jurisdiction over Domco would violate its due process rights guaranteed by the U.S. Constitution. 4. Plaintiff has offered no scientific evidence of general causation showing work with floor tile, with chrysotile as a component, is capable of being a substantial contributing factor to the development of pleural mesothelioma. Furthermore, Plaintiff cannot establish specific causation as Plaintiff’s experts have failed to offer evidence in a methodology generally accepted in the scientific community of a comparative analysis to quantify or qualify the levels of exposure to chrysotile Mr. Godfrey may have had from his alleged work around Domco tile. 5. Thus, Plaintiff cannot establish general or specific causation against Domco as is required of them by law, conversely, Domco has made a prima facie showing on both accounts. As such, Domco’s motion should be granted in its entirety. 6. On or about September 1, 2015, Plaintiffs Robert Godfrey (hereinafter “Mr. Godfrey” or “Decedent”) and Shirley Godfrey (“Mrs. Godfrey”) commenced this action by service of a Summons and Verified Complaint, and alleged principally causes of action sounding in negligence and products liability, hereto attached as Exhibit A. 7. On or about September 30, 2015, Plaintiffs filed Plaintiffs’ Response to Defendant’s Fourth Amended Standard Set of Interrogatories and Request for Production of Documents (hereinafter “Plaintiff’s Interrogatories”), hereto attached as Exhibit B. 2 2 of 4 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 04/16/2019 8. Mr. Godfrey was deposed on October 7, 8 and November 19, 2015, hereto attached as Exhibit C. 9. On or about October 26, 2015, Domco filed an Acknowledgement of Service and Answer, hereto attached as Exhibit D. 10. Mr. Godfrey additionally underwent a deposition de bene esse on November 19, 2015, hereto attached as Exhibit E. 11. On or about March 11, 2016, Mr. Godfrey passed away. Subsequently, on or about April 13, 2016, Plaintiffs’ counsel substituted Mr. Godfrey’s estate in this action, hereto attached as Exhibit F. 12. Domco’s NYCAL In Re All Answers to Interrogatories further help demonstrate that Domco’s Azrock floor tile could not be a cause of Mr. Godfrey’s mesothelioma. Exhibit G. 13. Defendant Domco has produced the report of Robert C. Adams, hereto attached as Exhibit H. 14. Defendant Domco has produced the report of Dr. Lennard Wharton, hereto attached as Exhibit I. 15. Defendant Domco has produced the report of Dr. Stanley B. Fiel, hereto attached as Exhibit J. 16. Plaintiff has produced the report of Dr. Edwin Holstein, hereto attached as Exhibit K. 17. The above listed exhibits are all in support of and relied on in Domco’s Memorandum of Law in support of its Motion for Summary Judgment. 3 3 of 4 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 338 RECEIVED NYSCEF: 04/16/2019 WHEREFORE, for the reasons set forth herein, it is respectfully requested that the Court grant defendant, Domco Products Texas Inc.’s motion for summary judgment in its entirety, and issue an Order dismissing Plaintiff’s Complaint and all cross-claims against Domco, with prejudice and grant such other and further relief as this Court deems just and proper. Dated: New York, New York April 16, 2019 Suzanne M. Halbardier SUZANNE M. HALBARDIER 4 4 of 4