A March 22, 2018, denial of a defendant’s summary judgment motion in the New York City Asbestos Litigation (NYCAL) signals a drastic lowering of the product identification standards in that venue (and a possible strategic adjustment necessary in future defendants litigating there).
In Trumbull v. Adience, Inc., a former brewer sued Stavo Industries (“Stavo”) as a manufacturer of asbestos-containing products to which the plaintiff was allegedly exposed. Stavo made, among other products, filters used in breweries. The plaintiff listed Stavo in his interrogatory responses, but not during his deposition testimony. At his deposition, the plaintiff recalled exposure to filters generally, but only named one specific manufacturer—Cellulo. However, the plaintiff also referred back, on the record, to his interrogatory responses for the list of filter brands that he supposedly encountered.
From Stavo’s perspective, the plaintiff’s general interrogatory mention of Stavo and reference back to those interrogatories during the deposition failed the requirement for product identification. Stavo moved for summary judgment. Justice Manuel Mendez denied Stavo’s motion, and ruled that a reference back to the interrogatory responses during his deposition did “sufficiently identify” Stavo filters as an exposure source. The Court found that Stavo’s liability could be inferred from the plaintiff’s testimony that he worked near filters being removed and replaced, considered with Stavo marketing materials from the time at issue claiming widespread usage of Stavo products in the brewing industry. For the Court, this provided enough evidence to survive summary judgment.
After this decision, the bar for product identification in the NYCAL appears dangerously low. This standard encourages plaintiffs to make blanket references to their vague interrogatory responses in depositions where actual recollection is impossible. It also forces prudent defendants to cross-examine during depositions with or without a specific mention of the defendant’s product occurring. If the NYCAL proceeds with this standard, the number of identifications stands to increase.