When Dykes Lumber Company was named a defendant in Raphael Sason’s mesothelioma claim, the company quickly moved to have the case against them dismissed. But summary judgment is not easily granted: it requires meeting a high bar of establishing that there are no issues of fact to be resolved. In this case, Justice Adam Silvera of the Supreme Court of New York denied the asbestos company’s request, making clear that their arguments fall far short of the level of proof needed.
Man’s Mesothelioma Blamed on Asbestos in Wood Putty Product
In his claim against Dykes Lumber Company, Raphael Sason asserts that the company’s wood putty product contained chrysotile asbestos, and that his exposure to the product led to his diagnosis with malignant peritoneal mesothelioma. The company filed a motion to dismiss his action, arguing that he had failed to establish causation. Much of their argument was based on a renowned precedential case called Nemeth v. Brenntag North America in which a mesothelioma verdict was overturned based on the claimant’s inability to establish the dose of asbestos to which they were exposed.
In responding to the asbestos company’s motion, Justice Adam Silvera noted first that a successful summary judgment motion requires the defendant to show that there are no material issues of fact from the case – in other words, that there is no question about the claim being rooted in any basis of fact. He also noted that all reasonable inferences – or benefit of the doubt – should initially be given to the plaintiff. The question is not about who is right, but whether there is a question to be addressed.
Judge Explains Deficiencies in Asbestos Company’s Argument Against Mesothelioma Claim
The judge first indicated that Nemeth is not the correct precedent to be used in a mesothelioma summary judgment motion, as it is a post-trial ruling rather than a basis for dismissing a case. He then went on to note that the two expert witnesses whose testimony the company offered did not meet the requirements needed for summary judgment.
The first expert witness simply contradicted the mesothelioma victim’s own expert witness, thus not eliminating but rather confirming that there is an issue of fact to be determined. The second argued that Mr. Sason’s exposure to asbestos would not have been enough to have contributed to his illness, but did so based on a study rather than the type of simulation study that would be needed to meet the state’s requirements. The case will move forward.
If you or someone you love has been diagnosed with malignant mesothelioma, the Patient Advocates at Mesothelioma.net can help. Contact us today at 1-800-692-8608 to learn more.
