Pump Manufacturer’s Reliance on Affidavit of Technical Consultant Fails to Create a Prima Facie Entitlement to Summary Judgment
In this NYCAL case, the plaintiff, Alan Watts, claimed his development of mesothelioma was a result of his service in the Navy as a shipfitter working on a wide range of equipment on various ships between 1944 and 1966. The defendant, pump manufacturer Superior Ledgerwood Mundy Corp. (SLM), as successor in interest to M.T. Davidson (Davidson) moved for summary judgment, arguing that the plaintiff failed to come forward with any proof he was exposed to asbestos from any product manufactured, distributed, or sold by SLM. The court found that SLM failed to establish its prima facieentitlement to summary judgment. In denying SLM’s motion, the court considered the affidavit of SLM technical consultant Thomas McCaffery, even though it was submitted for the first time in SLM’s reply papers.
As the court held: “McCaffery’s testimony does not account for the deficiencies in defendant’s proof. In fact, McCaffery’s affidavit does not dispute the presence of Davidson asbestos-containing pumps on Navy ships during the relevant years in which plaintiff worked. Instead, it states that historically, pipefitters and shipfitters in plaintiffs position were not responsible for the maintenance and repair of pumps of any kind either abroad ships or ashore. This is in contrast to testimony McCaffery gave at his deposition, during which he alluded to the fact that shipfitters could potentially work on pumps because Naval job designations are ‘not a rigid trade-union type of deal where it’s against the rules for me to work on this.’ Additionally, McCaffery’s testimony stems from work with the Navy that he commenced in 1972, several years after Mr. Watts’ exposure between the late 1950s and mid-1960s. Hence, he has no personal knowledge of many events and circumstances that plaintiff testified about. Most importantly, his testimony does not refute the presence of asbestos-containing pumps on Navy ships during the relevant period of time for which plaintiff worked. His testimony therefore fails to refute the possibility that Davidson pumps contributed to plaintiff’s injury.” In contrast, SLM had conceded in its interrogatory responses that some of its pumps may have contained encapsulated, non-friable, asbestos-containing gaskets and packing material, and that some of its pumps were aboard some of the ships upon which Mr. Watts served.
The court went on to state that even if SLM had met its burden, the plaintiff raised triable issues of fact, as the plaintiff’s deposition testimony asserts that he worked with the very pumps supplied by Davidson. The plaintiff also submitted Naval ship records that established Davidson manufactured and sold some of the specific types of pumps located on the ships where the plaintiff served.
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