The New York City Asbestos Litigation is considered one of the toughest jurisdictions for defendants to litigate asbestos cases. Rarely are motions for summary judgment successful. A defendant must first establish its entitlement to summary judgment before the burden shifts to plaintiff. In most cases, the supervising Judge Manuel Mendez has denied motions for summary judgment. Typically motions are denied because weak or contradictory testimony has been found to be a credibility issue for a jury to resolve. In other instances, the Court has denied summary judgment even where a defendant has presented objective proof that plaintiff’s testimony is incorrect.
Barry McTiernan & Moore recently obtained a rare grant of summary judgment in Gajda v. AO Smith Water Products for an equipment client. The plaintiff had recalled defendant’s product and recalled exposure at the job site. Defendant had in fact sold equipment to the job site. However, the Court concluded that defendant had established its entitlement to summary judgment, because we established there was no exposure to the new equipment our client sold, and plaintiff’s only exposure occurred to existing piping which was part of the building. The Court concluded that defendant had met its burden, and plaintiff had not shown there was any disputed fact for a jury to consider. Thus, we obtained obtained summary judgment on behalf of our client.