Products Liability Law Reporter

A New York appellate court held that summary judgment was improper in an asbestos case in which a fact issue remained regarding whether a manufacturer’s products could have been present on the naval submarines on which a plaintiff had served during his military career.

Here, Albert Howard was diagnosed as having mesothelioma. He and his spouse sued Armstrong Pumps, Inc., alleging that Howard’s illness resulted from his exposure to the defendant’s asbestos products on submarines during his service in the U.S. Navy from 1961 to 1978. The defendant moved for summary judgment, arguing that, because it had existed only since 1965, Howard could not have been exposed to any products it had manufactured during his military service. The trial court denied the motion.

The appellate court affirmed. The court found that the defendant had failed to conclusively establish that its products could not have been on the naval vessels Howard had worked on after the defendant’s incorporation. Moreover, the court found, Howard had testified regarding his familiarity with a wide range of pumps for different engineering systems and directly identified the defendant’s pumps as among the many he had observed during his naval service. Although Howard could not identify the precise vessels where he allegedly encountered the defendant’s pumps, he stated that he believed he had seen them on each of the vessels where he had worked and that he had worked in the immediate vicinity of the pumps when asbestos-containing gaskets were removed and scraped from the pumps. Howard had testified that the submarines were overhauled every three to five years, including replacement and repair of the pumps. This created a fact issue as to whether the defendant’s pumps were present on the plaintiff’s vessels, the court said.

Accordingly, the court concluded that the defendant’s motion was properly denied to the extent that it had sought complete dismissal. The court added, however, that the defendant could not be liable for any potential exposure occurring before its incorporation.

Citation: Howard v. A.O. Smith Water Prods., 2023 WL 96723 (N.Y. App. Div. Jan. 5, 2023).

Plaintiff counsel: AAJ member Seth A. Dymond, New York City.