News Brief

Evans Win Summary Judgment in Asbestos Case

February 2011

Julie Evans (Partner-New York) obtained summary judgment on behalf of a client that manufactured ceiling tiles, shortly before the start of a four to six week trial in an asbestos case in Syracuse, New York.

The plaintiff alleged that he was exposed to asbestos from ceiling tiles and several brands of joint compound when he accompanied his father to work sites, purportedly starting at the age of 2 or 3. As a result of this alleged asbestos exposure, the plaintiff was diagnosed with mesothelioma and ultimately died at the age of 40, leaving behind a wife and three small children, including an infant. The lost wages claim was substantial, as the plaintiff, a gym owner, planned to open a second gym, if not for the mesothelioma diagnosis.

Ms. Evan prepared a motion for summary judgment that argued there was no admissible evidence that the plaintiff worked around asbestos-containing ceiling tiles. The defense provided exhibits from the defendant that showed it sold both asbestos and non-asbestos ceiling tiles during the relevant timeframe. Further, one of the documents attached to the motion for summary judgment proved that the client manufactured asbestos-free ceramic ceiling tiles that matched the description of the ceiling tiles that the plaintiff’s father testified to having worked with on a handful of occasions when the plaintiff was a toddler.

The plaintiff, in opposition to Wilson Elser’s motion, proffered two affidavits – one from an industrial hygiene expert and one from the plaintiff’s father – suggesting that the asbestos-free ceramic ceiling tiles were not utilized by the plaintiff’s father, based upon building codes and the description of the tiles used as “fibrous” and “fire rated.”

The judge did not find that the plaintiff’s arguments created a question of fact and granted Wilson’s Elser’s summary judgment.

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