Floor Tile Manufacturer Fails to Establish Prima Facie Entitlement to Summary Judgment
In this NYCAL case, the plaintiff, Bruce Bardone, claimed his lung cancer was a result of exposure to various asbestos products, including floor tiles, while working as an apprentice electrician and journeyman at various worksites throughout New York City in the 1960s and 1970s. The defendant, floor tile manufacturer BF Goodrich, made both asbestos and non-asbestos floor tiles. Goodrich moved for summary judgment on the ground that the plaintiff had not shown he specifically came into contact with asbestos-containing floor tiles manufactured by them. The plaintiff’s counsel opposed based on the plaintiff’s testimony to working near other trades installing Goodrich floor tiles.
The court denied the motion, holding: “Goodrich has failed to establish a prima facie case. In support of its motion, Goodrich concedes that it made asbestos-containing floor tile until late 1963, but states that since it also made non-asbestos containing floor tile, it is equally likely that the tiles plaintiff was exposed to were non-asbestos containing. The conclusory affidavit of Joan M. Taffi, a Goodrich Corporation employee, does not contain any specificity with respect to the number of vinyl asbestos floor tiles that Goodrich manufactured prior to 1964. In fact, Goodrich’s use of the affidavit to buttress its claims with respect to the use of non-asbestos tiles contradicts several documents in the record before the court. Indeed, the record here shows that Goodrich manufactured and sold three types of flooring: vinyl asbestos tile, asphalt tile and rubber tile. Admittedly, Goodrich states that both its vinyl asbestos tile and asphalt tile contained asbestos. In fact, only its rubber tile was asbestos free. Thus, contrary to defendant’s claims, two out of the three tile types that it manufactured contained asbestos, which is sufficient to raise an issue of fact as to whether plaintiff was exposed to asbestos-containing tiles” (citations omitted).
Goodrich also argued that it ceased manufacturing floor tiles altogether in 1963, prior to the plaintiff’s work. The court was not swayed by this argument and held: “Goodrich fails to address its continuing operations after it exited the floor tile business in late 1963. The Taffi affidavit proffered in support of Goodrich’s motion does not mention what happened to Goodrich’s tile inventory after it ceased production. It is possible that while Goodrich did not manufacture tile after 1963, it may have sold its residual stock of tiles after that period of time. Moreover, Goodrich’s customers — including hardware stores and wholesalers — may have continued to sell Goodrich floor tile after 1963. As such, defendant has ‘failed to proffer any evidence that its asbestos products were not being used residually in the marketplace by various companies … after it ceased manufacturing and selling such products’” (citations omitted).
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