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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
Plaintiffs,
-against- Index No.: 190280/2015
A.O. SMITH WATER PRODUCTS, et al.,
Defendants.
--------------------------------------------------------------X
MEMORANDUM OF LAW IN SUPPORT OF DOMCO PRODUCT TEXAS
INC.’S MOTION FOR SUMMARY JUDGMENT
Suzanne M. Halbardier
BARRY McTIERNAN & MOORE LLC
Attorneys for Defendant
DOMCO PRODUCT TEXAS INC.
101 Greenwich Street, 14th Floor
(formerly 2 Rector Street)
New York, New York 10006
(212) 313 – 3600
File No.: DOM 61357
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TABLE OF CONTENTS
INTRODUCTION ……………………………………………………………………………….1
PROCEDURAL HISTORY ……………………………………………………………………..1
FACTUAL BACKGROUND …………………………………………………………………...2
ARGUMENT ……………………………………………………………………………………3
I. DOMCO IS NOT SUBJECT TO THE JURISDICTION
OF NEW YORK COURTS …………………………………………………………4
a. CPLR 301 Does Not Provide A Basis For The Exercise Of Jurisdiction Over
Domco …………………………………………………………………………...5
b. CPLR 302 Does Not Provide A Basis For The Exercise Of Jurisdiction Over
Domco …………………………………………………………………………...5
c. The Exercise Of Personal Jurisdiction Under
CPLR 302(a)(2) Is Not Proper…………………………………………………..8
d. The Exercise Of Personal Jurisdiction Under
CPLR 302(a)(3) Is Not Proper…………………………………………………..9
II. SUMMARY JUDGMENT LEGAL STANDARD …………………………………3
III. DOMCO IS ENTITLED TO SUMMARY JUDGMENT BASED ON PLAINTIFFS’
FAILURE TO ESTABLISH CAUSATION ………………………………………..9
a. Domco’s Expert Assessments…………………………………………………..11
b. Plaintiffs’ Expert Assessments……………………………………………….....11
c. Standard of Review …………………………………………………………….13
i. Parker v. Mobile Oil Corp. ……………………………………………..13
ii. Cornell v. 360 W. 51st Realty, LLC (2014) …………………………....15
iii. Juni v. A.O. Smith Water Products Company (2015) ………………….17
iv. Corazza v. Amchem Products, Inc., (2019).……………………………19
d. Plaintiffs Failed to Establish General Causation ……………………………….20
i
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e. Plaintiffs Failed to Establish Specific Causation ……………………………….21
CONCLUSION …………………………………………………………………………………23
ii
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INTRODUCTION
Defendant Domco Products Texas, Inc. (hereinafter “Domco”) by its attorneys, Barry
McTiernan & Moore LLC, submits its Memorandum of Law in support of Defendant Domco’s
Motion for Summary Judgment based on 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.
PROCEDURAL HISTORY
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.1 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”).2 Mr. Godfrey was deposed on October 7, 8
and November 19, 2015.3 On or about October 26, 2015, Domco filed an Acknowledgement of
Service and Answer.4 Mr. Godfrey additionally underwent a deposition de bene esse on November
19, 2015.5 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.6
1
Exhibit A.
2
Exhibit B.
3
Exhibit C.
4
Exhibit D.
5
Exhibit E.
6
Exhibit F.
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FACTUAL BACKGROUND
Decedent, Robert Godfrey (“Mr. Godfrey”), testified that from 1973 to 1978 he was a
student attending and residing at Bradford College in Haverhill, Massachusetts.7 Mr. Godfrey
further testified that from 1974 to 1978, he worked as a member of Bradford College’s grounds
crew, during which time he allegedly worked with a number of products that he believed contained
asbestos, including Docmo floor tiles, which he allegedly installed on certain buildings on and
around the Bradford College campus.8 Mr. Godfrey testified that he would score and snap floor
tiles in order for another worker to install them. He further stated that he did “a fair amount of
that.”9 He went on to testify that there was a number of different brands of floor tiles that were
used during his time at Bradford College, he listed about five different brand names.10 Among the
several floor tile brands that Mr. Godfrey alleges he handled, he could not and did not allocate the
time he spent working with Domco floor tile versus other floor tile brands. Mr. Godfrey testified
that he couldn’t say how often he worked with Domco floor tile as opposed to any other brand of
floor tile.11 He also testified that while at Bradford College, would also perform siding and
caulking work in addition to the floor tile work.12 When asked to give an idea of the frequency he
performed any of that work, he stated that “it’s hard to quantify to be honest with you…”13 In fact,
he stated that “he was always doing one of them pretty much. Some were more at a time than
another, but there was a lot of it to be done.”14 Mr. Godfrey testified to only encountering Domco
7
See Exhibit C, 26:13 – 24.
8
See Exhibit C,
9
Exhibit C, 61, 13 – 19.
10
Exhibit C, 62: 11 – 17.
11
Exhibit C, 189:23 – 2.
12
Exhibit C, 62: 16 – 20; 65: 22 – 66: 18.
13
Exhibit C, 66:5 – 18.
14
Exhibit C, 66:5 – 18.
2
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floor tiles in the State of Massachusetts. Mr. Godfrey has never alleged exposure to any Domco
product in the State of New York.
Robert C. Adams (hereinafter “Mr. Adams”), Domco’s expert industrial hygienist,
establishes that “Mr. Godfrey’s daily exposure to asbestos from his alleged installation of Azrock
floor tiles, if any, would be well below the current Occupational Safety and Health Administration
permissible exposure limit (PEL) of o.1 fiber / cubic centimeter (f/cc)…”15 Lennard Wharton,
Ph.D., P.E. (hereinafter “Dr. Wharton”), Domco’s expert, establishes that Mr. Godfrey “was no
exposed to detectable concentrations of free respirable airborne asbestos fibers from Azrock floor
tiles on those occaisions when he was installing, transporting, handling, removing, or cleaning up
after work on Azrock floor tiles.”16 Stanley B. Fiel (hereinafter “Dr. Fiel”), Domco’s medical
experts establishes “the exposure that Mr. Godfrey claims from any exposure he may have had
from Azrock tiles did not cause any disease.”17
Domco is a Delaware corporation with its principal place of business in Ohio. Azrock
Industries, Inc. was known as Uvalde Rock Asphalt Company from its inception on June 13, 1912
to March 27, 2019. In 1981, the company became known as Azrock Industries, Inc. until December
4, 1996. In December 23, 1997 Domco Products Texas LP was formed. Domco Products Texas
LP became Domco Products Texas, Inc. on December 10, 2008.18
Domco manufactured and distributed asphalt floor tile and vinyl asbestos floor tile from
1932 to 1983. One of the brand names of Domco’s floor tile was “Azrock”.19 Domco ceased the
manufacture of asbestos-containing products in 1982/1983, more than 30 years ago.20
15
Exhibit H.
16
Exhibit I.
17
Exhibit J.
18
See Exhibit G, ¶5.
19
See Exhibit G, ¶6.
20
See Exhibit G, ¶6
3
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Domco has always worked hard to comply with the standards of the industry and the
regulations set forth by the government, sometimes even going beyond just compliance. Domco
placed warning labels on the packaging of all of its asbestos-containing products from 1978.21 The
earliest warning labels stated “To prevent any release of encapsulated asbestos fiber, do not sand
asphalt tile or vinyl asbestos tile floors.”22
ARGUMENT
I. DOMCO IS NOT SUBJECT TO THE JURISDICTION OF NEW YORK COURTS
Pursuant to CPLR §3211(a)(8), the Court may dismiss a cause when itlacks personal
jurisdiction over a defendant. “On a motion to dismiss pursuant to CPLR 3211(a)(8), the plaintiff
has the burden of presenting sufficient evidence, through affidavits and relevant documents, to
demonstrate jurisdiction.”23 A plaintiff may establish personal jurisdiction by showing either
general jurisdiction, where the defendant’s affiliations with the forum state are so continuous and
systematic as to render them essentially “at home” in the state or specific jurisdiction, where the
defendant has sufficient contacts relating to the underlying controversy under the New York long
arm statute.24 “Although a plaintiff is not required to plead and prove personal jurisdiction in the
complaint, where jurisdiction is contested, the ultimate burden of proof rests upon the plaintiff.”25
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. Plaintiffs’ claims against Domco arise from alleged exposure
21
See Exhibit G, ¶22.
22
See Exhibit G, ¶22.
23
Coast to Coast Energy, Inc. v. Gasarch, 53 N.Y.S. 3d 16, 18 (1st Dep’t. 2017).
24
CPLR 302; iGoodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851 (2011).
25
Pichardo v. Zayas, 122 A.D. 3d 699, 700-01 (2d Dept. 2014); Ring Sales Co., v. Wakefield Engineering, Inc., 90
A.D. 2d 496, 497 (2d Dept. 1982).
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to Domco floor tile at Bradford College in Haverhill, Massachusetts. On these facts, New York
law does not confer jurisdiction over Domco.
a. CPLR 301 Does Not Provide A Basis For The Exercise Of Jurisdiction Over
Domco
Jurisdiction in New York, pursuant to CPLR 301, can only exist where a defendant is
“domiciled in the state or in an exception case where an individual’s contact with a forum [are] so
extensive as to support general jurisdiction notwithstanding domicile elsewhere.”26 “[A] court may
exercise such jurisdiction over persons, property, or status as might have been exercised
heretofore,” was long understood to permit the exercise of general, all-purpose, jurisdiction over
foreign entities that were deemed “present” in New York by virtue of their continuous business
activity here. On the basis of such continuous activity, a non-domiciliary could be sued in New
York whether or not the claims related to or arose out of any New York activity.
However, the U.S. Supreme Court eradicated such wide-reaching general jurisdiction.27 In
Daimler, the Court held that, absent “exceptional circumstances,” the Due Process Clause of the
Fourteenth Amendment precludes a state from exercising general jurisdiction over foreign
corporations that are neither incorporated in, not have their principal places of business in, that
state.28 For a corporation, the “paradigm forum for the exercise of general jurisdiction” is where
the corporation is at home, which is the corporation’s place of incorporation and principal place of
business.29 Indeed, just months ago, the Supreme Court reaffirmed its holdings in Daimler,
explaining that, “[o]ur precedent, however, explains that the Fourteenth Amendment’s Due
Process Clause does not permit a State to hale an out-of-state corporation before its courts when
26
IMAX Corp. v. The Essel Grp., 62 N.Y.S.3d 107, 109 (1st Dep’t 1977), affd sub nom, 55 N.Y.2d 655 (1981).
27
Goodyear v. Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011); Daimler v. Dauman, 134 S.
Ct. 746, 761-62 (2014).
28
Daimler v. Dauman, 134 S. Ct. 746, 761 (2014).
29
Goodyear v. Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853-54 (2011); Daimler v. Dauman, 134
S. Ct. 746, 760-61 (2014).
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the corporation is not ‘at home’ in the State and the episode-in-suit occurred elsewhere.”30 The
Court in BNSF reiterated that “the ‘paradigm’ forums in which a corporate defendant is ‘at
home’… the corporation’s place of incorporation and its principal place of business.”31 Thus, New
York courts may not exercise general jurisdiction pursuant to CPLR 301 over a defendant that is
neither incorporated in New York state note has its principal place of business here.32
There is simply no basis here for the exercise of personal jurisdiction over Domco under
CPLR 301 in this matter. Plaintiffs have not alleged that Domco is or ever was domiciled in New
York. To the contrary, Domco is not domiciled in New York. Domco is incorporated in Delaware
and its principal place of business is in Ohio. As such, personal jurisdiction under CPLR 301 is
inappropriate.
b. CPLR 302 Does Not Provide A Basis For The Exercise Of Jurisdiction Over
Domco
Plaintiffs have failed to plead any causes of action against Domco that arise from a
transaction that took place in New York. As such, Plaintiffs have failed to establish that the
exercise of personal jurisdiction over Domco under CPLR 302 is proper.
i. The Exercise of personal jurisdiction Under CPLR 302(a)(1) is not proper.
“In order to determine whether personal jurisdiction exists under CPLR 302(a)(1), a court
must determine (1) whether the defendant transacted business in New York and, if so, (2) whether
the cause of action asserted arose from that transaction.”33 Generally, CPLR 302(a)(1) jurisdiction
can be exercised if a defendant’s activities were purposeful and there was “a substantial
30
BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549, 1554, 198 L.Ed. 2d 36 (2017).
31
BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549, 1558, 198 L.Ed. 2d 36 (2017).
32
D & R Glob. Selections, S.L. v. Pineiro, 128 A.D. 3d 486, 487 (1st Dep’t 2015), rev’d on other grounds, D & R
Glob. Selections, S.L. v. Pineiro, 29 N.Y.3d 292, 78 N.E.3d 1172 (2017); Davis v. Scottish Re Grp. Ltd., 46 Misc. 3d
1206(A), 9 N.Y.S.3d 592 Sup. Ct. New York County (2014); Brown v. Lockheed Martin Corp., 814 F.3d. 619, 630
(2d Cir. 2016); Gucci America v. Weixing Li, 768 F.3d 122, 134-37 (2d Cir. 2014).
33
Leuthner v. Homewood Suites by Hilton, 58 N.Y.S. 3d 437, 438 2d Dep’t 2017).
6
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relationship between the transaction and the claim asserted.”34 However, “[not] all purposeful
activity [...] constitutes a transaction of business within the meaning of CPLR 302(a)(1).35
“Whether a non-domiciliary is transacting business within the meaning of CPLR 302(a)(1)
is a fact based determination, and requires a finding that the non-domiciliary’ s activities were
purposeful and established a substantial relationship between the transaction and the claim
asserted. Purposeful activities are volitional acts by which the non-domiciliary avails itself of the
privilege of conducting activities within the forum State, thus invoking the benefits and protections
of its laws.”36
Plaintiffs have failed to allege any facts that would allow this Court to find that Domco
transacted business in New York, and as such a finding of jurisdiction under CPLR 302(a)(1) is
improper. In fact here, Plaintiffs barely pled any connection to New York, and have pled nothing
more than canned statements that the various defendants are “conducting business in New York”
without any supporting factual allegations.37 This is not enough to satisfy CPLR 302(a) (1). None
of the causes of action alleged arise from any transactions that were alleged to have taken place in
New York. This Court recently decided it did not have personal jurisdiction under CPLR 302(a)(1)
over a similarly situated defendant, also incorporated in Delaware with an out-of-state principal
place of business, to whose product plaintiff encountered outside of New York.38
In addition to the foregoing, Plaintiffs have failed to allege any facts to support the
inference that any of the causes of action alleged arose from any transaction of business in New
York. Plaintiffs’ claims against Domco do not “arise from” any activity by Domco in New York.
34
Fischbarg v. Doucet, 9 N.Y.3d 375, 380 (2007).
35
Fischbarg v. Doucet, 9 N.Y.3d 375, 380 (2007).
36
Paterno v. Laser Spine Inst., 24 N.Y.3d 370, 376 (2014).
37
See Exhibit A and Exhibit F.
38
Trumbull v. Adience, Inc., et al., Index No. 190084/2016 (Sup. Ct. N.Y. County, March 6, 2017)(Moulton, J.).
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Plaintiffs’ claims instead arise from Mr. Godfrey’s alleged asbestos exposure over forty years ago
to Domco floor tiles while working on Bradford College’s grounds crew from 1974 to 1978.39 At
all times relevant to this matter, Domco, a Delaware corporation with a principal place of business
in Ohio, did not sell any asbestos-floor tiles manufactured in New York that Mr. Godfrey ever
came in contact with.40
c. The Exercise Of Personal Jurisdiction Under CPLR 302(a)(2) Is Not Proper
Similarly to the above, Plaintiffs have failed to allege that any of the tortious acts alleged
in the Complaint in relation to Domco occurred in New York. As such, the exercise of personal
jurisdiction over Domco under CPLR 302(a)(2) is improper.
CPLR 302(a)(2) provides that “[…] a court may exercise personal jurisdiction over […]
who […] commits a tortious act within the state, except as to a cause of action for defamation of
character arising from the act.” “CPLR 302(a)(2) [is the] long-arm [provision] that [addresses]
tortious acts committed by a defendant within the state.”41 CPLR 302(a)(2) has been narrowly
construed to apply only when the defendant’s wrongful conduct is performed in New York.42
In this case, as previously discussed, Mr. Godfrey’s allegation is that he was exposed to
Domco’s floor tile outside of the state. Thus jurisdiction is improper under CPLR 302(a)(2).
d. The Exercise Of Personal Jurisdiction Under CPLR 302(a)(3) Is Not Proper
Plaintiffs have also failed to plead facts sufficient to establish personal jurisdiction under CPLR
302(a)(3). This section provides for personal jurisdiction over anyone who “commits a tortious act
within the state causing injury to person or property within the state,” if one of two enumerated
39
See Exhibit.
40
See Exhibit.
41
SPCA of Upstate New York, Inc. v. Am. Working Collie Ass’n, 18 N.Y.3d 400, 407 (2012).
42
Longines-Wittnauer Watch Co., v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 465 (1965); Overseas Media, Inc. v.
Skvortsov, 407 F.Supp.2d 563m 572 (SDNY 2006).
8
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additional requirements are met.43 However, personal jurisdiction cannot be exercised over Domco
pursuant to this section of the long-arm statute because Mr. Godfrey’s alleged exposure to
Domco’s product occurred outside the state of New York. “The situs of the injury is the location
of the original event which cause the injury, not the location where the resultant damages are
subsequently felt by the plaintiff.”44 As Mr. Godfrey’s sole alleged exposure to Domco’s products
occurred in Massachusetts, CPLR 302(a)(3) does not confer jurisdiction of this Court over Domco.
II. SUMMARY JUDGMENT LEGAL STANDARD
Summary Judgment is appropriate when an issue is “established sufficiently to warrant the
court as a matter of law in directing judgment in favor of any party.”45 The standard articulated in
the rule is not the same as requiring a defendant to prove a negative. The rule inherently allows for
the disposal of claims where the plaintiff’s evidence does not set forth a factual issue of
consequence for a jury to decide upon. For this reason, the defendant’s prima facie burden is
merely to provide evidence which, uncontroverted, is sufficient to warrant judgment in its favor as
a matter of law.46
The New York Court of Appeals affirmed that the moving party has the initial burden to
show a prima facie entitlement to summary judgment, tendering sufficient evidence to demonstrate
the absence of any material issues of fact.47 The evidence should consist of all available proof such
as depositions, written admissions, affidavits, and a copy of the pleadings.48 The court will deny
43
CPLR 302(a)(3)
44
Varchonas v. Tonyes, 61 A.D.3d 850 (2d Dept. 2009); Black v. Oberle Rentals, Inc., 55 Misc. 2d 398 (Sup. Ct.
Onondaga County 1967); Stern v. Four Points by Sheraton, 133 A.D. 3d 514, 514-15 (1st Dept. 2015).
45
CPLR §3212(b), (e).
46
Gilbert Frank Corp. v. Fed. Ins. Co., 70 N.Y.2d 966, 967-68 (1988).
47
Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980) (holding that a moving defendant must establish his
defense sufficiently to warrant the court as a matter of law to direct judgment in his favor).
48
CPLR §3212
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summary judgment, regardless of the sufficiency of the opposing papers, if this initial prima facie
burden has not been met.49
Once the burden has been shifted, through defendant’s showing of a prima facie entitlement
to summary judgment, the opposing party must respond with “facts sufficient to require a trial of
any issue of fact” in order to defeat the motion.50 In negligence actions, the plaintiff meets this
burden by setting forth facts and conditions from which the negligence of the defendant and the
causation of the accident by that negligence may reasonably be inferred. 51 However, the plaintiff
cannot satisfy this burden by relying upon mere allegations, speculations, or conjecture. 52
Once the opposing party submits opposition, the court then evaluates opposition papers to
determine whether the matters set forth in the pleading are real and capable of being proven at
trial.53 If upon such review it is determined that the opposing party has failed to establish a genuine
issue of fact, summary judgment must be granted.54
Here, Domco is entitled to an award of summary judgment pursuant to Plaintiff’s failure
to establish personal jurisdiction under CPLR 3211 and causation under Parker v. Mobile Oil
Corp., 7 N.Y.3d 434 (2006).
III. DOMCO IS ENTITLED TO SUMMARY JUDGMENT BASED ON PLAINTIFFS’
FAILURE TO ESTABLISH CAUSATION.
Nearly 50 years ago, when products liability litigation involving asbestos began, litigation
was initially dominated by manufacturers of thermal insulation products, many of which contained
49
Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986)
50
Zuckerman, supra.
51
Schneider v. Kings Hwy. Hosp. Ctr., Inc., 67 N.Y.2d 743, 744 (1986) (quoting Ingersol v. Liberty Bank of Buffalo,
278 N.Y. 1, 7 (1938)).
52
Di Sanza v. City of New York, 11 N.Y.3d 766, 767 (2008).
53
Castro v. Liberty Bus Co., 435 N.Y.S.2d 340, 342 (2d Dep’t 1981).
54
Lomnitz v. Woodbury, 438 N.Y.2d 825, 827 (2d Dep’t 1981); Mitchell v. New York City Housing Authority, 611
N.Y.S.2d 535 (1st Dep’t 1994).
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amphibole asbestos.55 As the litigation evolved, many of these entities exhausted their resources,
virtually all of these types of defendants are bankrupt today.56 Early in the litigation, courts began
to recognize that not all asbestos-containing products have the same propensity to cause disease.
Today, there is a whole new array of products and defendants with different (and, in many
cases, de minimis) abilities to cause harm. Despite these new types of products and defendants,
plaintiffs’ counsels continue to use the same approach to proving causation as they did with
thermal insulation products. In the absence of the defendants whose amphibole-containing
insulation products were friable and “dusty,” the litigation changed to include cases claiming
exposure from low dose chrysotile encapsulated products, such as Domco’s floor-tile. Faced with
the lack of scientifically accepted data that exposure to low dose chrysotile encapsulated products
can cause disease, plaintiffs are relegated to rely on the “single exposure,” “any exposure,” or
“cumulative exposure” theories. Those theories are all manifestations of the faulty premise that
there is “no safe dose” for a carcinogen. Additionally, those theories ignore the requirement that
the product at issue must be a substantial factor in bringing about the injury; exposure cannot be
slight or trivial.57 Plaintiffs’ disingenuous attempt to convince the Court that “cumulative
exposure” and “each and every exposure” are vastly different is thwarted by New York courts’
acknowledgment that the “cumulative exposure theory” and the “each and every exposure theory”
are variants of each other.58 Plaintiffs’ attempt to use the “each and every exposure” or “cumulative
dose” causation theories, which have been rejected by the courts, is simply an attempt to recoup
55
See In re Garlock Sealing Tech., LLC, 504 BR 71, 83 (Bankr. W.D.N.C. 2014).
56
See Id.
57
N.Y. Pattern Jury Instr. 2:70.
58
See In re New York City Asbestos Litig., 48 Misc. 2d 460, 488, 11 N.Y.S.3d 416, 437 (N.Y. Sup. Ct. 2015)(finding
that courts require specific proof of exposure and have rejected the so-called cumulative exposure theory and its
variant, the “each and every exposure” theory)(emphasis added).
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damages from another set of defendants now that the first wave of asbestos litigation defendants
are no longer viable.
Plaintiff’s testimony and his expert’s opinions do not establish the necessary proof for
causation under the standards enunciated by the First Department and the Court of Appeals.
Although plaintiff recalled Azrock as one of five brands he recalled at Bradford College, he
couldn’t say how often he worked with Azrock floor tile as opposed to any other brand of floor
tile.59 When asked to give an idea of the frequency he performed any of the work at the college,
he stated that “it’s hard to quantify to be honest with you…”60
a. Domco’s Expert Assessments
Mr. Adams establishes that Mr. Godfrey’s exposure to asbestos from his alleged
installation of Azrock tiles was no more than 0.01 f/cc, on order of magnitude lower than the
current permissible exposure limit.61 Mr. Adams concludes that any cumulative exposure Mr.
Godfrey may have had would be no greater than the cumulative asbestos exposure associated with
background airborne asbestos concentrations. As such, Mr. Godfrey’s exposures cannot be
considered significant from an industrial hygiene perspective.
Dr. Wharton, a chemical engineer and chemist, states that “vinyl asbestos tiles are strong,
having a tensile strength of about 1,000 psi, and therefore they are not friable. Azrock vinyl
asbestos tiles cannot be reduced to powder by rubbing. The asbestos fibers in them are held firmly
in the PVC matrix.”62 Dr. Wharton opines that the techniques that Mr. Godfrey alleges he used for
cutting tile corresponds to monitored tests that Dr. Wharton has performed. He additionally cites
to numerous fracture tests of Azrock floor tile which resulted in no detectable asbestos in the air.
59
Exhibit C, 189:23 – 2.
60
Exhibit C, 66:5 – 18.
61
Exhibit H.
62
Exhibit I, 9.
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Dr. Wharton concludes that a worker cutting, installing, removing, cleaning up afterwards, or
carrying away spares, boxed or loose, or being beside others performing this type of work, would
not be exposed to detectable free respirable airborne asbestos fibers.
Dr. Fiel establishes that there is a threshold of asbestos exposure necessary before a disease
is seen. Based on his review of literature and studies done on Domco floor tiles, Dr. Fiel concluded
that the use and handling of Domco floor tiles creates fiber emissions ranging from non-detectable
to measurement that are within the environmental background levels. He further states that these
levels are far below the threshold for asbestos-related diseases.63 Additionally, Dr. Fiel opines with
a reasonable degree of medical certainty that the exposures that Mr. Godfrey claims from any
exposure he may have had from Domco floor tiles did not cause any disease.64
b. Plaintiffs’ Expert Opinions
In contrast, Plaintiffs’ expert, Dr. Edwin Holstein opines that Mr. Godfrey’s “multiple
asbestos exposure [from asbestos siding shingles, joint compound, caulking, and vinyl asbestos
floor tiles] cumulatively constituted the direct and sole cause of malignant mesothelioma.”65 Dr.
Holstein offers no opinion about the ability of vinyl asbestos floor tile to release fiber, cites to no
studies to show that the levels of fiber release from floor tile are capable of causing disease, nor
does he use any quantitative or qualitative means to calculate Mr. Godfrey’s dose from his alleged
exposure to Domco tiles. Although Dr. Holstein attempts to cure these deficiencies in his affidavit
dated December 6, 2018, he only provides a flawed analysis and fails to provide an acceptable
causation opinion regarding chrysotile-containing floor tile. He makes no attempt what so ever to
63
Exhibit J.
64
Exhibit J.
65
Exhibit K.
13
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quantify the possible total amount of exposure or even comment on Mr. Godfrey’s own inability
to quantify his possible total amount of exposure.
Plaintiffs have not offered any reports by industrial hygienists to even attempt a specific
comparative analysis to quantify or qualify Mr. Godfrey’s alleged exposure to Domco floor tile,
nor does Dr. Holstein do this. Instead, Plaintiffs have utilized general causation evidence to obsure
the fact that they cannot meet the burden imposed on Plaintiffs under New York law. Plaintiffs
have offered no expert opinion, much less provided reference to acceptable scientific
methodologies, data, or studies that establish the level at which work with floor tile is capable of
causing pleural mesothelioma, much less that Mr. Godfrey was exposed to such levels.
c. Standard of Review
In the State of New York, the New York Court of Appeals has unequivocally established
that in order to have the proper foundation for reception of a causation opinion into evidence at
trial in a toxic tort products liability case, a plaintiff’s proffered expert opinion must establish two
thing: (1) general causation; and (2) specific causation.66 Here, Plaintiffs fail to establish either
general causation or specific causation in this matter. As a result, the Court as a matter of law must
grant Domco’s Motion for Summary Judgement.67
In this floor tile liability case brought against Domco, the proper foundation must be laid
before Plaintiff’s expert opinion regarding causation to floor tile with chrysotile asbestos as a
component can be sufficient to cause the mesothelioma at issue in the general population.68
Second, Plaintiffs must establish specific causation, i.e. that Mr. Godfrey’s actual exposure to floor
66
See Parker v. Mobile Oil Corp., 7 N.Y.3d 434 (2006); Cornell v. 360 West 51st Realty, LLC, 22 N.Y.3d 762
(2014); Sean R. ex rel. Debra
Preview
FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 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 Plaintiffs, -against- Index No.: 190280/2015 A.O. SMITH WATER PRODUCTS, et al., Defendants. --------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF DOMCO PRODUCT TEXAS INC.’S MOTION FOR SUMMARY JUDGMENT Suzanne M. Halbardier BARRY McTIERNAN & MOORE LLC Attorneys for Defendant DOMCO PRODUCT TEXAS INC. 101 Greenwich Street, 14th Floor (formerly 2 Rector Street) New York, New York 10006 (212) 313 – 3600 File No.: DOM 61357 1 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 TABLE OF CONTENTS INTRODUCTION ……………………………………………………………………………….1 PROCEDURAL HISTORY ……………………………………………………………………..1 FACTUAL BACKGROUND …………………………………………………………………...2 ARGUMENT ……………………………………………………………………………………3 I. DOMCO IS NOT SUBJECT TO THE JURISDICTION OF NEW YORK COURTS …………………………………………………………4 a. CPLR 301 Does Not Provide A Basis For The Exercise Of Jurisdiction Over Domco …………………………………………………………………………...5 b. CPLR 302 Does Not Provide A Basis For The Exercise Of Jurisdiction Over Domco …………………………………………………………………………...5 c. The Exercise Of Personal Jurisdiction Under CPLR 302(a)(2) Is Not Proper…………………………………………………..8 d. The Exercise Of Personal Jurisdiction Under CPLR 302(a)(3) Is Not Proper…………………………………………………..9 II. SUMMARY JUDGMENT LEGAL STANDARD …………………………………3 III. DOMCO IS ENTITLED TO SUMMARY JUDGMENT BASED ON PLAINTIFFS’ FAILURE TO ESTABLISH CAUSATION ………………………………………..9 a. Domco’s Expert Assessments…………………………………………………..11 b. Plaintiffs’ Expert Assessments……………………………………………….....11 c. Standard of Review …………………………………………………………….13 i. Parker v. Mobile Oil Corp. ……………………………………………..13 ii. Cornell v. 360 W. 51st Realty, LLC (2014) …………………………....15 iii. Juni v. A.O. Smith Water Products Company (2015) ………………….17 iv. Corazza v. Amchem Products, Inc., (2019).……………………………19 d. Plaintiffs Failed to Establish General Causation ……………………………….20 i 2 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 e. Plaintiffs Failed to Establish Specific Causation ……………………………….21 CONCLUSION …………………………………………………………………………………23 ii 3 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 INTRODUCTION Defendant Domco Products Texas, Inc. (hereinafter “Domco”) by its attorneys, Barry McTiernan & Moore LLC, submits its Memorandum of Law in support of Defendant Domco’s Motion for Summary Judgment based on 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. PROCEDURAL HISTORY 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.1 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”).2 Mr. Godfrey was deposed on October 7, 8 and November 19, 2015.3 On or about October 26, 2015, Domco filed an Acknowledgement of Service and Answer.4 Mr. Godfrey additionally underwent a deposition de bene esse on November 19, 2015.5 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.6 1 Exhibit A. 2 Exhibit B. 3 Exhibit C. 4 Exhibit D. 5 Exhibit E. 6 Exhibit F. 4 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 FACTUAL BACKGROUND Decedent, Robert Godfrey (“Mr. Godfrey”), testified that from 1973 to 1978 he was a student attending and residing at Bradford College in Haverhill, Massachusetts.7 Mr. Godfrey further testified that from 1974 to 1978, he worked as a member of Bradford College’s grounds crew, during which time he allegedly worked with a number of products that he believed contained asbestos, including Docmo floor tiles, which he allegedly installed on certain buildings on and around the Bradford College campus.8 Mr. Godfrey testified that he would score and snap floor tiles in order for another worker to install them. He further stated that he did “a fair amount of that.”9 He went on to testify that there was a number of different brands of floor tiles that were used during his time at Bradford College, he listed about five different brand names.10 Among the several floor tile brands that Mr. Godfrey alleges he handled, he could not and did not allocate the time he spent working with Domco floor tile versus other floor tile brands. Mr. Godfrey testified that he couldn’t say how often he worked with Domco floor tile as opposed to any other brand of floor tile.11 He also testified that while at Bradford College, would also perform siding and caulking work in addition to the floor tile work.12 When asked to give an idea of the frequency he performed any of that work, he stated that “it’s hard to quantify to be honest with you…”13 In fact, he stated that “he was always doing one of them pretty much. Some were more at a time than another, but there was a lot of it to be done.”14 Mr. Godfrey testified to only encountering Domco 7 See Exhibit C, 26:13 – 24. 8 See Exhibit C, 9 Exhibit C, 61, 13 – 19. 10 Exhibit C, 62: 11 – 17. 11 Exhibit C, 189:23 – 2. 12 Exhibit C, 62: 16 – 20; 65: 22 – 66: 18. 13 Exhibit C, 66:5 – 18. 14 Exhibit C, 66:5 – 18. 2 5 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 floor tiles in the State of Massachusetts. Mr. Godfrey has never alleged exposure to any Domco product in the State of New York. Robert C. Adams (hereinafter “Mr. Adams”), Domco’s expert industrial hygienist, establishes that “Mr. Godfrey’s daily exposure to asbestos from his alleged installation of Azrock floor tiles, if any, would be well below the current Occupational Safety and Health Administration permissible exposure limit (PEL) of o.1 fiber / cubic centimeter (f/cc)…”15 Lennard Wharton, Ph.D., P.E. (hereinafter “Dr. Wharton”), Domco’s expert, establishes that Mr. Godfrey “was no exposed to detectable concentrations of free respirable airborne asbestos fibers from Azrock floor tiles on those occaisions when he was installing, transporting, handling, removing, or cleaning up after work on Azrock floor tiles.”16 Stanley B. Fiel (hereinafter “Dr. Fiel”), Domco’s medical experts establishes “the exposure that Mr. Godfrey claims from any exposure he may have had from Azrock tiles did not cause any disease.”17 Domco is a Delaware corporation with its principal place of business in Ohio. Azrock Industries, Inc. was known as Uvalde Rock Asphalt Company from its inception on June 13, 1912 to March 27, 2019. In 1981, the company became known as Azrock Industries, Inc. until December 4, 1996. In December 23, 1997 Domco Products Texas LP was formed. Domco Products Texas LP became Domco Products Texas, Inc. on December 10, 2008.18 Domco manufactured and distributed asphalt floor tile and vinyl asbestos floor tile from 1932 to 1983. One of the brand names of Domco’s floor tile was “Azrock”.19 Domco ceased the manufacture of asbestos-containing products in 1982/1983, more than 30 years ago.20 15 Exhibit H. 16 Exhibit I. 17 Exhibit J. 18 See Exhibit G, ¶5. 19 See Exhibit G, ¶6. 20 See Exhibit G, ¶6 3 6 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 Domco has always worked hard to comply with the standards of the industry and the regulations set forth by the government, sometimes even going beyond just compliance. Domco placed warning labels on the packaging of all of its asbestos-containing products from 1978.21 The earliest warning labels stated “To prevent any release of encapsulated asbestos fiber, do not sand asphalt tile or vinyl asbestos tile floors.”22 ARGUMENT I. DOMCO IS NOT SUBJECT TO THE JURISDICTION OF NEW YORK COURTS Pursuant to CPLR §3211(a)(8), the Court may dismiss a cause when itlacks personal jurisdiction over a defendant. “On a motion to dismiss pursuant to CPLR 3211(a)(8), the plaintiff has the burden of presenting sufficient evidence, through affidavits and relevant documents, to demonstrate jurisdiction.”23 A plaintiff may establish personal jurisdiction by showing either general jurisdiction, where the defendant’s affiliations with the forum state are so continuous and systematic as to render them essentially “at home” in the state or specific jurisdiction, where the defendant has sufficient contacts relating to the underlying controversy under the New York long arm statute.24 “Although a plaintiff is not required to plead and prove personal jurisdiction in the complaint, where jurisdiction is contested, the ultimate burden of proof rests upon the plaintiff.”25 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. Plaintiffs’ claims against Domco arise from alleged exposure 21 See Exhibit G, ¶22. 22 See Exhibit G, ¶22. 23 Coast to Coast Energy, Inc. v. Gasarch, 53 N.Y.S. 3d 16, 18 (1st Dep’t. 2017). 24 CPLR 302; iGoodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851 (2011). 25 Pichardo v. Zayas, 122 A.D. 3d 699, 700-01 (2d Dept. 2014); Ring Sales Co., v. Wakefield Engineering, Inc., 90 A.D. 2d 496, 497 (2d Dept. 1982). 4 7 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 to Domco floor tile at Bradford College in Haverhill, Massachusetts. On these facts, New York law does not confer jurisdiction over Domco. a. CPLR 301 Does Not Provide A Basis For The Exercise Of Jurisdiction Over Domco Jurisdiction in New York, pursuant to CPLR 301, can only exist where a defendant is “domiciled in the state or in an exception case where an individual’s contact with a forum [are] so extensive as to support general jurisdiction notwithstanding domicile elsewhere.”26 “[A] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore,” was long understood to permit the exercise of general, all-purpose, jurisdiction over foreign entities that were deemed “present” in New York by virtue of their continuous business activity here. On the basis of such continuous activity, a non-domiciliary could be sued in New York whether or not the claims related to or arose out of any New York activity. However, the U.S. Supreme Court eradicated such wide-reaching general jurisdiction.27 In Daimler, the Court held that, absent “exceptional circumstances,” the Due Process Clause of the Fourteenth Amendment precludes a state from exercising general jurisdiction over foreign corporations that are neither incorporated in, not have their principal places of business in, that state.28 For a corporation, the “paradigm forum for the exercise of general jurisdiction” is where the corporation is at home, which is the corporation’s place of incorporation and principal place of business.29 Indeed, just months ago, the Supreme Court reaffirmed its holdings in Daimler, explaining that, “[o]ur precedent, however, explains that the Fourteenth Amendment’s Due Process Clause does not permit a State to hale an out-of-state corporation before its courts when 26 IMAX Corp. v. The Essel Grp., 62 N.Y.S.3d 107, 109 (1st Dep’t 1977), affd sub nom, 55 N.Y.2d 655 (1981). 27 Goodyear v. Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011); Daimler v. Dauman, 134 S. Ct. 746, 761-62 (2014). 28 Daimler v. Dauman, 134 S. Ct. 746, 761 (2014). 29 Goodyear v. Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853-54 (2011); Daimler v. Dauman, 134 S. Ct. 746, 760-61 (2014). 5 8 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 the corporation is not ‘at home’ in the State and the episode-in-suit occurred elsewhere.”30 The Court in BNSF reiterated that “the ‘paradigm’ forums in which a corporate defendant is ‘at home’… the corporation’s place of incorporation and its principal place of business.”31 Thus, New York courts may not exercise general jurisdiction pursuant to CPLR 301 over a defendant that is neither incorporated in New York state note has its principal place of business here.32 There is simply no basis here for the exercise of personal jurisdiction over Domco under CPLR 301 in this matter. Plaintiffs have not alleged that Domco is or ever was domiciled in New York. To the contrary, Domco is not domiciled in New York. Domco is incorporated in Delaware and its principal place of business is in Ohio. As such, personal jurisdiction under CPLR 301 is inappropriate. b. CPLR 302 Does Not Provide A Basis For The Exercise Of Jurisdiction Over Domco Plaintiffs have failed to plead any causes of action against Domco that arise from a transaction that took place in New York. As such, Plaintiffs have failed to establish that the exercise of personal jurisdiction over Domco under CPLR 302 is proper. i. The Exercise of personal jurisdiction Under CPLR 302(a)(1) is not proper. “In order to determine whether personal jurisdiction exists under CPLR 302(a)(1), a court must determine (1) whether the defendant transacted business in New York and, if so, (2) whether the cause of action asserted arose from that transaction.”33 Generally, CPLR 302(a)(1) jurisdiction can be exercised if a defendant’s activities were purposeful and there was “a substantial 30 BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549, 1554, 198 L.Ed. 2d 36 (2017). 31 BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549, 1558, 198 L.Ed. 2d 36 (2017). 32 D & R Glob. Selections, S.L. v. Pineiro, 128 A.D. 3d 486, 487 (1st Dep’t 2015), rev’d on other grounds, D & R Glob. Selections, S.L. v. Pineiro, 29 N.Y.3d 292, 78 N.E.3d 1172 (2017); Davis v. Scottish Re Grp. Ltd., 46 Misc. 3d 1206(A), 9 N.Y.S.3d 592 Sup. Ct. New York County (2014); Brown v. Lockheed Martin Corp., 814 F.3d. 619, 630 (2d Cir. 2016); Gucci America v. Weixing Li, 768 F.3d 122, 134-37 (2d Cir. 2014). 33 Leuthner v. Homewood Suites by Hilton, 58 N.Y.S. 3d 437, 438 2d Dep’t 2017). 6 9 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 relationship between the transaction and the claim asserted.”34 However, “[not] all purposeful activity [...] constitutes a transaction of business within the meaning of CPLR 302(a)(1).35 “Whether a non-domiciliary is transacting business within the meaning of CPLR 302(a)(1) is a fact based determination, and requires a finding that the non-domiciliary’ s activities were purposeful and established a substantial relationship between the transaction and the claim asserted. Purposeful activities are volitional acts by which the non-domiciliary avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”36 Plaintiffs have failed to allege any facts that would allow this Court to find that Domco transacted business in New York, and as such a finding of jurisdiction under CPLR 302(a)(1) is improper. In fact here, Plaintiffs barely pled any connection to New York, and have pled nothing more than canned statements that the various defendants are “conducting business in New York” without any supporting factual allegations.37 This is not enough to satisfy CPLR 302(a) (1). None of the causes of action alleged arise from any transactions that were alleged to have taken place in New York. This Court recently decided it did not have personal jurisdiction under CPLR 302(a)(1) over a similarly situated defendant, also incorporated in Delaware with an out-of-state principal place of business, to whose product plaintiff encountered outside of New York.38 In addition to the foregoing, Plaintiffs have failed to allege any facts to support the inference that any of the causes of action alleged arose from any transaction of business in New York. Plaintiffs’ claims against Domco do not “arise from” any activity by Domco in New York. 34 Fischbarg v. Doucet, 9 N.Y.3d 375, 380 (2007). 35 Fischbarg v. Doucet, 9 N.Y.3d 375, 380 (2007). 36 Paterno v. Laser Spine Inst., 24 N.Y.3d 370, 376 (2014). 37 See Exhibit A and Exhibit F. 38 Trumbull v. Adience, Inc., et al., Index No. 190084/2016 (Sup. Ct. N.Y. County, March 6, 2017)(Moulton, J.). 7 10 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 Plaintiffs’ claims instead arise from Mr. Godfrey’s alleged asbestos exposure over forty years ago to Domco floor tiles while working on Bradford College’s grounds crew from 1974 to 1978.39 At all times relevant to this matter, Domco, a Delaware corporation with a principal place of business in Ohio, did not sell any asbestos-floor tiles manufactured in New York that Mr. Godfrey ever came in contact with.40 c. The Exercise Of Personal Jurisdiction Under CPLR 302(a)(2) Is Not Proper Similarly to the above, Plaintiffs have failed to allege that any of the tortious acts alleged in the Complaint in relation to Domco occurred in New York. As such, the exercise of personal jurisdiction over Domco under CPLR 302(a)(2) is improper. CPLR 302(a)(2) provides that “[…] a court may exercise personal jurisdiction over […] who […] commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act.” “CPLR 302(a)(2) [is the] long-arm [provision] that [addresses] tortious acts committed by a defendant within the state.”41 CPLR 302(a)(2) has been narrowly construed to apply only when the defendant’s wrongful conduct is performed in New York.42 In this case, as previously discussed, Mr. Godfrey’s allegation is that he was exposed to Domco’s floor tile outside of the state. Thus jurisdiction is improper under CPLR 302(a)(2). d. The Exercise Of Personal Jurisdiction Under CPLR 302(a)(3) Is Not Proper Plaintiffs have also failed to plead facts sufficient to establish personal jurisdiction under CPLR 302(a)(3). This section provides for personal jurisdiction over anyone who “commits a tortious act within the state causing injury to person or property within the state,” if one of two enumerated 39 See Exhibit. 40 See Exhibit. 41 SPCA of Upstate New York, Inc. v. Am. Working Collie Ass’n, 18 N.Y.3d 400, 407 (2012). 42 Longines-Wittnauer Watch Co., v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 465 (1965); Overseas Media, Inc. v. Skvortsov, 407 F.Supp.2d 563m 572 (SDNY 2006). 8 11 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 additional requirements are met.43 However, personal jurisdiction cannot be exercised over Domco pursuant to this section of the long-arm statute because Mr. Godfrey’s alleged exposure to Domco’s product occurred outside the state of New York. “The situs of the injury is the location of the original event which cause the injury, not the location where the resultant damages are subsequently felt by the plaintiff.”44 As Mr. Godfrey’s sole alleged exposure to Domco’s products occurred in Massachusetts, CPLR 302(a)(3) does not confer jurisdiction of this Court over Domco. II. SUMMARY JUDGMENT LEGAL STANDARD Summary Judgment is appropriate when an issue is “established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.”45 The standard articulated in the rule is not the same as requiring a defendant to prove a negative. The rule inherently allows for the disposal of claims where the plaintiff’s evidence does not set forth a factual issue of consequence for a jury to decide upon. For this reason, the defendant’s prima facie burden is merely to provide evidence which, uncontroverted, is sufficient to warrant judgment in its favor as a matter of law.46 The New York Court of Appeals affirmed that the moving party has the initial burden to show a prima facie entitlement to summary judgment, tendering sufficient evidence to demonstrate the absence of any material issues of fact.47 The evidence should consist of all available proof such as depositions, written admissions, affidavits, and a copy of the pleadings.48 The court will deny 43 CPLR 302(a)(3) 44 Varchonas v. Tonyes, 61 A.D.3d 850 (2d Dept. 2009); Black v. Oberle Rentals, Inc., 55 Misc. 2d 398 (Sup. Ct. Onondaga County 1967); Stern v. Four Points by Sheraton, 133 A.D. 3d 514, 514-15 (1st Dept. 2015). 45 CPLR §3212(b), (e). 46 Gilbert Frank Corp. v. Fed. Ins. Co., 70 N.Y.2d 966, 967-68 (1988). 47 Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980) (holding that a moving defendant must establish his defense sufficiently to warrant the court as a matter of law to direct judgment in his favor). 48 CPLR §3212 9 12 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 summary judgment, regardless of the sufficiency of the opposing papers, if this initial prima facie burden has not been met.49 Once the burden has been shifted, through defendant’s showing of a prima facie entitlement to summary judgment, the opposing party must respond with “facts sufficient to require a trial of any issue of fact” in order to defeat the motion.50 In negligence actions, the plaintiff meets this burden by setting forth facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may reasonably be inferred. 51 However, the plaintiff cannot satisfy this burden by relying upon mere allegations, speculations, or conjecture. 52 Once the opposing party submits opposition, the court then evaluates opposition papers to determine whether the matters set forth in the pleading are real and capable of being proven at trial.53 If upon such review it is determined that the opposing party has failed to establish a genuine issue of fact, summary judgment must be granted.54 Here, Domco is entitled to an award of summary judgment pursuant to Plaintiff’s failure to establish personal jurisdiction under CPLR 3211 and causation under Parker v. Mobile Oil Corp., 7 N.Y.3d 434 (2006). III. DOMCO IS ENTITLED TO SUMMARY JUDGMENT BASED ON PLAINTIFFS’ FAILURE TO ESTABLISH CAUSATION. Nearly 50 years ago, when products liability litigation involving asbestos began, litigation was initially dominated by manufacturers of thermal insulation products, many of which contained 49 Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986) 50 Zuckerman, supra. 51 Schneider v. Kings Hwy. Hosp. Ctr., Inc., 67 N.Y.2d 743, 744 (1986) (quoting Ingersol v. Liberty Bank of Buffalo, 278 N.Y. 1, 7 (1938)). 52 Di Sanza v. City of New York, 11 N.Y.3d 766, 767 (2008). 53 Castro v. Liberty Bus Co., 435 N.Y.S.2d 340, 342 (2d Dep’t 1981). 54 Lomnitz v. Woodbury, 438 N.Y.2d 825, 827 (2d Dep’t 1981); Mitchell v. New York City Housing Authority, 611 N.Y.S.2d 535 (1st Dep’t 1994). 10 13 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 amphibole asbestos.55 As the litigation evolved, many of these entities exhausted their resources, virtually all of these types of defendants are bankrupt today.56 Early in the litigation, courts began to recognize that not all asbestos-containing products have the same propensity to cause disease. Today, there is a whole new array of products and defendants with different (and, in many cases, de minimis) abilities to cause harm. Despite these new types of products and defendants, plaintiffs’ counsels continue to use the same approach to proving causation as they did with thermal insulation products. In the absence of the defendants whose amphibole-containing insulation products were friable and “dusty,” the litigation changed to include cases claiming exposure from low dose chrysotile encapsulated products, such as Domco’s floor-tile. Faced with the lack of scientifically accepted data that exposure to low dose chrysotile encapsulated products can cause disease, plaintiffs are relegated to rely on the “single exposure,” “any exposure,” or “cumulative exposure” theories. Those theories are all manifestations of the faulty premise that there is “no safe dose” for a carcinogen. Additionally, those theories ignore the requirement that the product at issue must be a substantial factor in bringing about the injury; exposure cannot be slight or trivial.57 Plaintiffs’ disingenuous attempt to convince the Court that “cumulative exposure” and “each and every exposure” are vastly different is thwarted by New York courts’ acknowledgment that the “cumulative exposure theory” and the “each and every exposure theory” are variants of each other.58 Plaintiffs’ attempt to use the “each and every exposure” or “cumulative dose” causation theories, which have been rejected by the courts, is simply an attempt to recoup 55 See In re Garlock Sealing Tech., LLC, 504 BR 71, 83 (Bankr. W.D.N.C. 2014). 56 See Id. 57 N.Y. Pattern Jury Instr. 2:70. 58 See In re New York City Asbestos Litig., 48 Misc. 2d 460, 488, 11 N.Y.S.3d 416, 437 (N.Y. Sup. Ct. 2015)(finding that courts require specific proof of exposure and have rejected the so-called cumulative exposure theory and its variant, the “each and every exposure” theory)(emphasis added). 11 14 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 damages from another set of defendants now that the first wave of asbestos litigation defendants are no longer viable. Plaintiff’s testimony and his expert’s opinions do not establish the necessary proof for causation under the standards enunciated by the First Department and the Court of Appeals. Although plaintiff recalled Azrock as one of five brands he recalled at Bradford College, he couldn’t say how often he worked with Azrock floor tile as opposed to any other brand of floor tile.59 When asked to give an idea of the frequency he performed any of the work at the college, he stated that “it’s hard to quantify to be honest with you…”60 a. Domco’s Expert Assessments Mr. Adams establishes that Mr. Godfrey’s exposure to asbestos from his alleged installation of Azrock tiles was no more than 0.01 f/cc, on order of magnitude lower than the current permissible exposure limit.61 Mr. Adams concludes that any cumulative exposure Mr. Godfrey may have had would be no greater than the cumulative asbestos exposure associated with background airborne asbestos concentrations. As such, Mr. Godfrey’s exposures cannot be considered significant from an industrial hygiene perspective. Dr. Wharton, a chemical engineer and chemist, states that “vinyl asbestos tiles are strong, having a tensile strength of about 1,000 psi, and therefore they are not friable. Azrock vinyl asbestos tiles cannot be reduced to powder by rubbing. The asbestos fibers in them are held firmly in the PVC matrix.”62 Dr. Wharton opines that the techniques that Mr. Godfrey alleges he used for cutting tile corresponds to monitored tests that Dr. Wharton has performed. He additionally cites to numerous fracture tests of Azrock floor tile which resulted in no detectable asbestos in the air. 59 Exhibit C, 189:23 – 2. 60 Exhibit C, 66:5 – 18. 61 Exhibit H. 62 Exhibit I, 9. 12 15 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 Dr. Wharton concludes that a worker cutting, installing, removing, cleaning up afterwards, or carrying away spares, boxed or loose, or being beside others performing this type of work, would not be exposed to detectable free respirable airborne asbestos fibers. Dr. Fiel establishes that there is a threshold of asbestos exposure necessary before a disease is seen. Based on his review of literature and studies done on Domco floor tiles, Dr. Fiel concluded that the use and handling of Domco floor tiles creates fiber emissions ranging from non-detectable to measurement that are within the environmental background levels. He further states that these levels are far below the threshold for asbestos-related diseases.63 Additionally, Dr. Fiel opines with a reasonable degree of medical certainty that the exposures that Mr. Godfrey claims from any exposure he may have had from Domco floor tiles did not cause any disease.64 b. Plaintiffs’ Expert Opinions In contrast, Plaintiffs’ expert, Dr. Edwin Holstein opines that Mr. Godfrey’s “multiple asbestos exposure [from asbestos siding shingles, joint compound, caulking, and vinyl asbestos floor tiles] cumulatively constituted the direct and sole cause of malignant mesothelioma.”65 Dr. Holstein offers no opinion about the ability of vinyl asbestos floor tile to release fiber, cites to no studies to show that the levels of fiber release from floor tile are capable of causing disease, nor does he use any quantitative or qualitative means to calculate Mr. Godfrey’s dose from his alleged exposure to Domco tiles. Although Dr. Holstein attempts to cure these deficiencies in his affidavit dated December 6, 2018, he only provides a flawed analysis and fails to provide an acceptable causation opinion regarding chrysotile-containing floor tile. He makes no attempt what so ever to 63 Exhibit J. 64 Exhibit J. 65 Exhibit K. 13 16 of 28 FILED: NEW YORK COUNTY CLERK 04/16/2019 12:47 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/16/2019 quantify the possible total amount of exposure or even comment on Mr. Godfrey’s own inability to quantify his possible total amount of exposure. Plaintiffs have not offered any reports by industrial hygienists to even attempt a specific comparative analysis to quantify or qualify Mr. Godfrey’s alleged exposure to Domco floor tile, nor does Dr. Holstein do this. Instead, Plaintiffs have utilized general causation evidence to obsure the fact that they cannot meet the burden imposed on Plaintiffs under New York law. Plaintiffs have offered no expert opinion, much less provided reference to acceptable scientific methodologies, data, or studies that establish the level at which work with floor tile is capable of causing pleural mesothelioma, much less that Mr. Godfrey was exposed to such levels. c. Standard of Review In the State of New York, the New York Court of Appeals has unequivocally established that in order to have the proper foundation for reception of a causation opinion into evidence at trial in a toxic tort products liability case, a plaintiff’s proffered expert opinion must establish two thing: (1) general causation; and (2) specific causation.66 Here, Plaintiffs fail to establish either general causation or specific causation in this matter. As a result, the Court as a matter of law must grant Domco’s Motion for Summary Judgement.67 In this floor tile liability case brought against Domco, the proper foundation must be laid before Plaintiff’s expert opinion regarding causation to floor tile with chrysotile asbestos as a component can be sufficient to cause the mesothelioma at issue in the general population.68 Second, Plaintiffs must establish specific causation, i.e. that Mr. Godfrey’s actual exposure to floor 66 See Parker v. Mobile Oil Corp., 7 N.Y.3d 434 (2006); Cornell v. 360 West 51st Realty, LLC, 22 N.Y.3d 762 (2014); Sean R. ex rel. Debra