NEW YORK (Legal Newsline) - A New York judge has denied an air compressor manufacture's motion for summary judgment in an electrician's asbestos lawsuit, finding that the plaintiff presented appropriate triable issues of fact regarding his alleged exposure.
In her June 4 opinion, Judge Sherry Klein Heitler concluded that plaintiff John W. Adler, joined by his wife Elaine Adler, presented enough evidence showing he could have been exposed to asbestos from defendant Gardner Denver's air compressors while aboard a Navy vessel, causing him to develop mesothelioma.
Adler filed his asbestos-related personal injury lawsuit in the Supreme Court of the State of New York, New York County, on Sept. 18, 2012, and added Gardner Denver as a defendant on Oct. 17, 2012.
He provided depositions in October and November 2012 and again in January 2013, testifying that he was exposed to asbestos while working as an electrician from the late 1950s until the early 1970s.
During that time, Adler served as an electrician's mate aboard the USS Prevail, a converted US Navy mine sweeper, from March 1957 through June 1960.
As part of his job responsibilities, Adler stood watch in each of the vessel's two engine rooms during the conversion process. He alleged his asbestos exposure arose from civilian shipyard employees' work with asbestos-containing insulation encasing engine room equipment in his presence.
Adler added that the civilians were working on engines, boilers, evaporators and switchboards, creating dust and dirt clouds.
He explained that the employees would use air compressors to start the main engines. Then maintenance work and overhaul work would be done on the air compressors. Located in the engine room was also an accumulator tank associated with the air compressors, which Adler claimed was covered in asbestos.
During a deposition, Adler said everything would have been running while he was present in the engine room, meaning everything covered in asbestos would have been vibrating regularly.
However, he did not identify Gardner Denver products specifically as the source of his exposure.
As a result of Adler's failure to rely on the defendant's products in his depositions, Gardner Denver submitted two partially executed No Opposition Summary Judgment motions to the plaintiffs' counsel for signature.
In response, plaintiffs' counsel advised it would not execute the NOSJM's in light of a report from its expert, Arnold Moore, who stated that the air compressors aboard the Prevail were manufactured by Gardner Denver.
As a result, Gardner Denver filed a motion for summary judgment to Heitler on Feb. 19 seeking dismissal of Adler's complaint and cross-claims asserted against him. It alleged Adler failed to produce any Navy records upon which Moore relied on when forming his opinions, thus failing to show the plaintiff was exposed to Gardner Denver products.
Adler later supplied those documents and indicated that the vessel's air compressor units were manufactured by Gardner Denver, including three motor-driven air compressors used for starting the engine and servicing the ship.
However, the air compressors were reportedly in good condition and were not open for inspection.
Gardner Denver argued it is not proper to assume Adler's asbestos exposure from the defendant's products because he mentioned at one point in his deposition that the air compressors were manufactured by Fairbanks Morse.
Adler later testified that he did not know who manufactured the asbestos-containing air compressors.
"Regardless, the documents make it abundantly clear that in 1956, only one year before the relevant time period began, there were Gardner Denver air compressors aboard the Prevail," Heitler concluded. "There is no evidence to show that these Gardner Denver air compressors were replaced either before or during Adler's service."
Heitler added that Adler presented triable issues of fact regarding whether he was exposed to asbestos from Gardner Denver air compressors, and therefore denied summary judgment.
From Legal Newsline: Reach Heather Isringhausen Gvillo at email@example.com
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