Holzworth, Cheyenne v. Alfa Laval, Inc. et al
Filing
73
OPINION AND ORDER. Defendant Burnham's unopposed motion for summary judgment is granted. The Court respectfully directs the Clerk to enter judgment in Defendant Burnham's favor in accordance with this order. A final pretrial conference for the Plaintiff and the remaining defendants is scheduled for Tuesday, November 15, 2016, at 11:15 a.m. in Courtroom 20C, at which time a firm trial date will be set for a time shortly following the conference. SO ORDERED. re: 67 MOTION for Summary Judgment filed by Burnham LLC. (Final Pretrial Conference set for 11/15/2016 at 11:15 AM in Courtroom 20C, 500 Pearl Street, New York, NY 10007 before Judge John F. Keenan.) (Signed by Judge John F. Keenan on 10/19/2016) (rjm)
Case 1:09-md-02013-PAC Document 57
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
CHEYANNE HOLZWORTH,
:
as Personal Representative for the :
UNITED STATES Andrew Holzworth :
Estate of WilliamDISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
:
-----------------------------------------------------------x
Plaintiff,
:
In re FANNIE MAE 2008 SECURITIES
::
LITIGATION
-against::
::
ALFA LAVAL INC., et al.
::
-----------------------------------------------------------x
:
Defendants.
:
-----------------------------------X
Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 10/19/2016
No.08 Civ. 7831 06088 (JFK)
12 Civ. (PAC)
09 MD 2013 (PAC)
OPINION & ORDER
OPINION & ORDER
APPEARANCES
HONORABLE PAUL A. CROTTY, United States District Judge:
FOR PLAINTIFF CHEYANNE HOLZWORTH
Derrell Dereck Wilson, Esq.
BACKGROUND1
FOR DEFENDANT BURNHAM LLC
The early years of this decade saw a boom in home financing which was fueled, among
John C. McGuire, Esq.
other KEENAN, United States District Judge:
JOHN F. things, by low interest rates and lax credit conditions. New lending instruments, such as
subprime mortgages (high creditDefendant Burnham LLC’s (“Burnham”) loans)
Before the Court is risk loans) and Alt-A mortgages (low-documentation
kept the motion for summary judgment they took on to Federal Rule
unopposed boom going. Borrowers played a role too; pursuant unmanageable risks on the
assumption that the market which seeks summary refinancing as to each
of Civil Procedure 56,would continue to rise and that judgment options would always be
available in the six Lending of action alleged in the Amended
of Plaintiff’s future. causes discipline was lacking in the system. Mortgage originators did
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
Complaint. The Court grants the motion.
originators sold their loans into the secondary mortgage market, often as securitized packages
I. Background
known as mortgage-backed securities (“MBSs”). the decedent, almost William
The parties do not dispute that MBS markets grew Mr. exponentially.
But then the housing Holzworth” 2006, the demand for was dropped abruptly
Andrew Holzworth (“Mr. bubble burst. In or “Decedent”),housingdiagnosed
and home prices began to fall. 28, 2012. Mr. housing market, banks as a
with mesothelioma on May In light of the changingHolzworth servedmodified their
lending practices U.S. Navy between 1952 and 1955, then worked as
sonarman in the and became unwilling to refinance home mortgages without refinancing.
a construction manager and project manager at various
1
Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.
1
1
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; 76:2386:24; 87:19-102:15; 104:2-112:11, July 24, 2012; id. 129:23146:12; 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 crossexamination, 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).
2
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. 646:2124, 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 cancermesothelioma. (ECF No. 27-2).
On February 4, 2014, the Orange
3
County, 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).
on March 11, 2014. (ECF No. 31).
This Court granted the motion
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.).
lists six causes of action:
The Amended Complaint
failure to warn (Count 1);
4
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.
A.
Discussion
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)).
5
In
ruling 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).
6
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. Felix
7
Contracting 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 evidence[ with] evidence of exposure to a
specific product on a regular basis over some extended period of
time in proximity to where the plaintiff actually worked.” See
Hughes v. A.W. Chesterton Co., 89 A.3d 179, 189 (App. Div. 2014)
(quoting Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156,
1162-63 (4th Cir. 1986)); Sholtis, 568 A.2d at 1207 (adopting
the Lohrmann causation standard in New Jersey).
Courts (prior to Parker and Cornell) have disagreed over
whether New York’s and New Jersey’s substantial factor tests
actually conflict.
Compare In re Joint E. & S. Dist. Asbestos
8
Litig., 798 F. Supp. 925, 930 (E.D.N.Y. 1992) (stating that
applying the frequent, regular, and proximate test would narrow
the New York standard, and “[n]either New York nor the Second
Circuit reviewing New York law has adopted [the frequency,
regularity, and proximity] test”), rev’d on other grounds sub
nom. Malcolm v. Nat’l Gypsum Co., 995 F.2d 346 (2d Cir. 1993),
with Tronlone v. Lac d'Amiante Du Quebec, Ltee, 297 A.D.2d 528,
528 (1st Dep’t 2002) (finding “no relevant conflict between the
laws of New Jersey and New York as they bear upon” “product
identification and exposure in an asbestos case”).
This Court need not determine whether an actual conflict
exists here because, no matter which test applies, the Plaintiff
has failed to meet her burden of establishing that the Decedent
was exposed to harmful levels of asbestos from a Burnham
product.
C. The Plaintiff Has Not Raised a Genuine Dispute As to Any
Material Fact Concerning Whether Burnham Proximately Caused Mr.
Holzworth’s Alleged Injuries
Viewing the record in the light most favorable to the
Plaintiff, at a maximum, Mr. Holzworth was exposed to a Burnham
heater and pump containing asbestos for three hours on one day
in a fifty-five year career of exposure.
There is nothing in
the record that a factfinder can rely on to conclude that this
sort of de minimis exposure to Burnham’s products rises to a
level known to cause the type of harm Mr. Holzworth suffered.
9
See In re N.Y.C. Asbestos Litig., 48 Misc. 3d 460, 486, 491
(N.Y. Sup. Ct. 2015) (granting a defendant’s motion to set aside
a verdict where the plaintiff’s evidence of exposure lacked any
quantification).
And, by definition, this brief one-time
exposure is not exposure on a regular basis over some extended
period of time. See Estate of Brust v. ACF Indus., 443 N.J.
Super. 103, 126-27 (App. Div. 2015) (“[O]ne-time exposure does
not satisfy [the] regularity and frequency test” (citing Chavers
v. Gen. Motors Corp., 79 S.W.3d 361, 370 (Ark. 2002))).
Because the Plaintiff has not shown that Mr. Holzworth’s
exposure to a Burnham product rose to a level to cause the harm
he suffered, Burnham is entitled to judgment as a matter of law.
D.
The Plaintiff’s Wrongful Death Causes of Action Against
Burnham Fail As a Matter of Law
The Plaintiff’s wrongful death causes of action also must
fail as a matter of law because the Plaintiff failed to produce
any evidence that the Decedent was exposed to an asbestoscontaining product manufactured by Burnham that proximately
caused the Decedent’s illness.
The Plaintiff does not specify whether she seeks recovery
under New York’s or New Jersey’s wrongful death statutes.
For
present purposes, any distinction between these statutes is
inconsequential.
Both New York’s and New Jersey’s wrongful
death statutes permit recovery for “a wrongful act, neglect or
10
default which caused the decedent’s death against a person who
would have been liable to the decedent by reason of such
wrongful conduct if death had not ensued.” N.Y. Estates, Powers,
& Trusts Law § 5-4.1(1); accord N.J. Stat. Ann. § 2A:31-1 (“When
the death of a person is caused by a wrongful act, neglect or
default, such as would, if death had not ensued, have entitled
the person injured to maintain an action for damages resulting
from the injury, the person who would have been liable in
damages for the injury if death had not ensued shall be liable
in an action for damages . . . .”).
The Plaintiff’s wrongful death actions arise from the same
conduct insufficient to show Burnham’s liability under theories
of negligence, strict liability, or breach of warranty, and her
wrongful death claims are therefore equally insufficient.
11
III.
Conclusion
Defendant Burnham's unopposed motion for summary judgment
is granted.
The Court respectfully directs the Clerk to enter
judgment in Defendant Burnham's favor in accordance with this
order.
A final pretrial conference for the Plaintiff and the
remaining defendants is scheduled for Tuesday, November 15,
2016, at 11:15 a.m. in Courtroom 20C, at which time a firm trial
date will be set for a time shortly following the conference.
SO ORDERED.
Dated:
New York, New York
Octoberf~ , 2016
~-'~h!$~n
~~ed
States District Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?