Earlier this year, Navy veteran Paul J. McPolin succumbed to an asbestos-related illness that his family blames on exposure to dozens of products contaminated with the carcinogenic mineral. One of the defendants named in the family’s personal injury lawsuit, DAP, Inc., filed a motion for summary judgment arguing that they did not manufacture or sell the products Mr. McPolin had described in his deposition. Despite the company’s assertion, its petition was denied.
DAP, Inc. Claims It Did Not Manufacture Product Described by Asbestos Victim
Defendants named in mesothelioma lawsuits frequently request dismissal from the case, arguing that the victim’s claim is unfounded and that the lawsuit should not move forward. In the Supreme Court of New York County, most of these arguments are denied because the court requires moving defendants to unequivocally establish that its products “could not have contributed to the causation of plaintiff’s injury,” a high bar. Despite this, defendants frequently attempt the maneuver.
In this case, DAP, Inc. asked to be dismissed from the asbestos case because it claimed that Mr. McPolin’s family could not show that he was exposed to asbestos from its products. As proof, DAP offered two affidavits provided by their own employee indicating that the company had not manufactured, sold, or supplied the products that Mr. Mcpolin had described in his deposition.
Asbestos Victim’s Family Prevails
In response, the asbestos victim’s family pointed to testimony he had given about having worked with asbestos-containing DAP products, specifically joint compound. Justice Adam Silvera reviewed the testimony as well as the affidavits offered by DAP in light of the state’s requirements for summary judgment. He denied the company’s petition, noting that the affidavits had been offered by an employee who did not “possess the requisite personal knowledge to establish that no DAP products containing asbestos were in circulation and used by plaintiff at the time of plaintiff’s exposure.”
Pointing to New York’s previous holdings that “affidavits devoid of evidentiary facts and consisting of mere conclusions, speculation, and unsupported allegations are insufficient to defeat a motion for summary relief,” the judge noted that the DAP employee’s affidavits fell far short of the requirements, especially when viewed in light of the “unequivocal testimony” that Mr. McPolin had provided before his death.
If you or someone you love has been diagnosed with an asbestos-related disease, the Patient Advocates at Mesothelioma.net have the resources you need. Contact us today at 1-800-692-8608.
