NEW YORK (Legal Newsline) – A New York judge has rejected a motion to dismiss in a former bus driver’s asbestos lawsuit alleging his wife was injured as a result of take-home asbestos exposure.
Judge Sherry Klein Heitler delivered the July 15 opinion in the Supreme Court of the State of New York for the County of New York.
Defendant Motion Control Industries, Inc. – sued as Carlisle Motion Control Industries, Inc., and Carlisle Industries Brake & Friction – requested summary judgment dismissing the complaint and all cross-claims asserted against it.
Motion Control argued there is no evidence to show the claimant was exposed to asbestos from Carlisle brake linings.
Heitler was unconvinced and denied the motion.
Claimants Elizabeth and Fred Herman filed the complaint after Elizabeth was diagnosed with mesothelioma.
They alleged Fred was exposed to asbestos-containing gaskets, brakes and clutches while working as a bus driver, dispatcher and superintendent for the New York City Transit Authority between 1976 and 2010.
As a result, his wife was exposed to asbestos through take-home exposure while laundering Fred’s work uniform.
Motion Control claimed the plaintiffs failed to provide sufficient evidence creating a genuine issue of material fact showing Elizabeth was exposed to asbestos from its Carlisle brake linings.
On the other hand, the plaintiffs argued they provided a triable issue of fact that asbestos exposure occurred between May 1976 and February 1977 when her husband also worked as a shifter, moving buses around the depot before and after repairs.
Heitler explained Fred testified that he was present in the maintenance area while mechanics performed brake jobs, thus exposing him to asbestos fibers.
The plaintiffs also submitted the March 21, 2013, deposition testimony of former co-worker Sam Nahas, who was employed as a mechanic at the Ulmer Park depot.
Nahas testified that Carlisle brakes were included in the products he used repairing the buses, including the nine months Fred worked as a shifter.
Describing the process to change brakes, Nahas explained that it took 35-40 minutes to cut the brake shoes on a lathe, which created asbestos dust.
Fred testified that he would walk by the dusty lathe workspace every 15 to 20 minutes.
“Taken together with Nahas’ testimony that Mr. Herman often walked by the lathe area while the brakes were being cut, a reasonable inference can be drawn that Mr. Herman (and in turn his wife) were exposed to asbestos-laden dust released from Carlisle brakes,” Heitler concluded.
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