Holzworth v. Alfa Laval Inc.

CHEYANNE HOLZWORTH, as Personal Representativefor the Estate of William Andrew Holzworth Plaintiff, v. ALFA LAVAL INC., et al. Defendants.

No. 12 Civ. 06088 (JFK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 19, 2016

OPINION & ORDER

APPEARANCES

FOR PLAINTIFF CHEYANNE HOLZWORTH

Derrell Dereck Wilson, Esq.

FOR DEFENDANT BURNHAM LLC

John C. McGuire, Esq.

JOHN F. KEENAN, United States District Judge:

Before the Court is Defendant Burnham LLC's ("Burnham") unopposed motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, which seeks summary judgment as to each of Plaintiff's six causes of action alleged in the Amended Complaint. The Court grants the motion.

I. Background

The parties do not dispute that the decedent, Mr. William Andrew Holzworth ("Mr. Holzworth" or "Decedent"), was diagnosed with mesothelioma on May 28, 2012. Mr. Holzworth served as a sonarman in the U.S. Navy between 1952 and 1955, then worked as a construction manager and project manager at various construction sites between May 1963 and November 2007. (Def.'s Loc. R. 56.1 Statement ¶¶ 14, 18). He also performed and oversaw construction on his own homes between approximately 1964 and 1982. (See Dep. of William A. Holzworth 73:1-74:6; 76:23-86:24; 87:19-102:15; 104:2-112:11, July 24, 2012; id. 129:23-146:12; 148:14-154:11; 154:19-158:19, July 25, 2012 [hereinafter Holzworth Dep.]).

At his deposition, Mr. Holzworth testified that he encountered one Burnham product while cleaning and rebuilding a fire-damaged house in New Jersey. (See id. 96:4-98:11, July 24, 2012; id. 649:21-24, Aug. 8, 2012). Mr. Holzworth initially identified the product as a Burnham heater, (see id. 96:10-97:8, July 24, 2012; id. 644:13-647:19, Aug. 8, 2012), but on cross-examination, he clarified that the pump connected to the heater, and not the heater itself, said "Burnham." (See id. 643:17-22, Aug. 8, 2012). A metal jacket encased the heater with insulation that Mr. Holzworth believed to be asbestos. (See id. 96:20-97:8, July 24, 2012). "[A]sbestos-wrapped pipes" also connected to the top of the heater, which were wrapped in "white material" he assumed to be asbestos. (See id. 645:19-646:2, Aug. 8, 2012).

Mr. Holzworth personally dismantled the heater and the pump connected to it and dragged them out of the house. (See id. 96:10-97:8, July 24, 2012; id. 644:13-647:19, Aug. 8, 2012).Mr. Holzworth personally handled the white material from the inside of the metal jacket and the top of the heater. (See id. 648:14-650:11, Aug. 8, 2012). He also swept up the debris from the heater, although he acknowledged it was mixed with the general mess from the fire. (See id. 650:3-11, Aug. 8, 2012).

Removal took between one and three hours. (See id. 646:21-24, Aug. 8, 2012).

II. Procedural History

Mr. Holzworth filed the complaint in this action in New York Supreme Court on July 9, 2012. (McGuire Decl. Ex. A.) On August 9, 2012, former Defendant Crane Co. removed this action to this Court pursuant to 28 U.S.C. § 1442(a)(1), which provides for federal jurisdiction in cases involving persons acting under the direction of a federal officer. (ECF No. 1).

On September 7, 2012, pursuant to 28 U.S.C. § 1407, the United States Judicial Panel on Multidistrict Litigation transferred this action to the Eastern District of Pennsylvania for consolidated pretrial proceedings before the Honorable Eduardo C. Robreno. (ECF No. 10). On October 31, 2013, Judge Robreno declared that this action was ready for trial and remanded it to this Court. (ECF No. 13-99).

On December 8, 2012, Mr. Holzworth passed away. His Certification of Death listed the cause of death as lung cancer-mesothelioma. (ECF No. 27-2). On February 4, 2014, the OrangeCounty, Florida Circuit Court Probate Division declared Mr. Holzworth's daughter, Cheyanne Holzworth ("Ms. Holzworth" or "Plaintiff"), duly qualified under the laws of the State of Florida to act as the personal representative of Mr. Holzworth's estate. (ECF No. 27-3).

Subsequently, on March 7, 2014, Mr. Holzworth's counsel moved to amend the summons and complaint to add causes of action for wrongful death, and to substitute Ms. Holzworth as Plaintiff in her capacity as the personal representative of Mr. Holzworth's estate. (ECF No. 27). This Court granted the motion on March 11, 2014. (ECF No. 31). On March 27, 2014, Ms. Holzworth filed the Amended Complaint. (ECF No. 42).

The Amended Complaint makes no specific allegations about Burnham. In the Amended Complaint, the Plaintiff alleges that the Decedent was exposed to asbestos-containing products during his employment, both as a sonarman serving in the U.S. Navy between 1952 and 1955, and as a construction and project manager between 1963 and 2007. (McGuire Decl. Ex. A ¶¶ 5, 10). The Plaintiff does not specifically allege that the Decedent was exposed to asbestos-containing products while performing and overseeing construction on his own houses, outside of the scope of his employment. However, the Plaintiff does allege exposure at "other locations and times." (Id.). The Amended Complaint lists six causes of action: failure to warn (Count 1);negligence (Count 2); strict liability (Count 3); wrongful death based on negligence (Count 4); wrongful death based on strict liability (Count 5); and wrongful death based on breach of warranty (Count 6). (See generally McGuire Decl. Ex. A; ECF No. 42).

On March 22, 2016, Defendant Burnham moved for summary judgment. (ECF Nos. 67-72). Burnham asserts that New Jersey law is applicable and that there is no genuine dispute as to any material fact so that (1) Plaintiff has failed to establish that the heater with its allegedly asbestos-containing insulation was manufactured by Burnham and, in any event, (2) Mr. Holzworth's single exposure of one to three hours was not a substantial factor causing his illness. Plaintiff does not oppose this motion.

III. Discussion

A. Standard of Review

A court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). For summary judgment purposes, a genuine dispute as to any material fact exists "where the evidence is such that a reasonable jury could decide in the non-movant's favor." Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (quoting Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008)). Inruling on a motion for summary judgment, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." Curry v. City of Syracuse, 316 F.3d 324, 329 (2d Cir. 2003) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).

When the summary judgment motion is not opposed, the motion is not granted automatically. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (per curiam). The Court must "examin[e] the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001). The Court determines whether any material facts are genuinely disputed in the record presented on the motion, then assures itself that the "facts as to which there is no genuine dispute 'show that the moving party is entitled to a judgment as a matter of law.'" Champion, 76 F.3d at 486 (quoting Fed. R. Civ. P. 56(c)). If the evidence submitted in support of the motion does not meet the movant's burden of production, or if the undisputed facts do not show that the movant is entitled to judgment as a matter of law, then summary judgment must be denied even if no opposing evidence is presented. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).

B. Governing Law

Mr. Holzworth encountered the alleged Burnham heater and pump exclusively in New Jersey. Burnham contends that New Jersey law should apply instead of New York law (the law of the forum).

A federal court sitting in diversity in New York applies New York choice of law rules. Thea v. Kleinhandler, 807 F.3d 493, 497 (2d Cir. 2015). New York's choice of law rules direct the court to consider first whether an actual conflict exists between the laws of the applicable jurisdictions. If so, the court conducts an interests analysis, which applies the law of the jurisdiction with the greatest interest in the litigation. See Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998).

Under both New York and New Jersey law, a plaintiff seeking to recover in tort for asbestos exposure on a theory of negligence, strict liability, or failure to warn must prove that exposure to the defendant's product proximately caused his injuries. See Pace v. Air & Liquid Sys. Corp., --- F. Supp. 3d ----, No. 13 Civ. 6227 (KPF), 2016 WL 1169512, at *6 (S.D.N.Y. Mar. 22, 2016); James v. Bessemer Processing Co., 155 N.J. 279, 297 (1998). New York and New Jersey both require a proximate cause to be "more likely than not . . . a substantial factor" in causing the illness. Johnson v. Celotex Corp., 899 F.2d 1281, 1285-86 (2d Cir. 1990) (citing Derdiarian v. FelixContracting Corp., 51 N.Y.2d 308, (1980)); accord Sholtis v. Am. Cyanamid Co., 568 A.2d 1196, 1203 (N.J. App. Div. 1989).

In New York, the plaintiff bears the burden of establishing "sufficient exposure to a substance to cause the claimed adverse health effect." Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 784 (2014) (citing Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448-49 (2006)). "At a minimum, . . . there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of [an] agent that are known to cause the kind of harm that the plaintiff claims to have suffered." Id. (first alteration in original) (quoting Wright v. Williamette Indus., Inc., 91 F.3d 1105, 1107 (8th Cir. 1996)).

Similarly, New Jersey requires the plaintiff "[t]o support a reasonable inference of substantial causation from circumstantial...