Simply Naming Defendants in Interrogatory Responses Held Insufficient For Plaintiff to Prevent a Shifting of Burden of Proof on Summary Judgment In New York, Erie County Case

On May 26, 2016 a decision and order in Blamowski v. Air & Liquid Systems, Inc., et al., Index No. 808655/2014 came down granting summary judgment to several defendants in a take-home deceased mesothelioma case. In this case, it was alleged that the decedent was exposed to asbestos from laundering her husband, Eugene Blamowski’s, work clothes. Mr. Blamowski worked as a laborer at Bethlehem Steel from 1955-84, with the exception of his Army service from 1958–62. He and the decedent were married in 1965 and the decedent had laundered his clothes since that time. Several defendants, including Frontier Insulation Contractors, Beazer East, Riley Power, Inc., and Buffalo Pumps, Inc., moved for summary judgment based on lack of product identification and argued that Mr. Blamowski could not show he was exposed to their products or work.

Prior to her death, the decedent had signed interrogatory responses naming, upon information and belief, several defendants that allegedly exposed her to asbestos. Following that paragraph in the responses, the plaintiff’s counsel cut and pasted the entire caption of the case and alleged, upon information and belief, that all of the named defendants exposed the decedent to asbestos. The decedent died before testifying, but Mr. Blamowski was deposed regarding his work history and exposure to asbestos, which he would then take home on his clothes. Mr. Blamowski had very little product identification and testified that his wife never visited him at the plant, calling into question how interrogatories signed by decedent could possibly name any defendants.

In New York, the defendant’s burden to obtain summary judgment is high. The courts require a defendant to essentially prove that a plaintiff could not have been exposed to asbestos from a defendant’s products or work. Simply stating that the plaintiff has not identified the defendant has been held insufficient. However, New York courts have held that a plaintiff’s failure to identify a defendant in interrogatory answers is an admission of non-exposure sufficient to meet a defendant’s burden. In moving for summary judgment, several defendants argued that the plaintiff’s attorney merely listing their names in the interrogatory responses was not procedurally proper and tantamount to the name not being listed at all. The court agreed and shifted the burden to the plaintiff to come forward with facts and conditions from which a defendant’s liability can be inferred. The plaintiff failed to meet this burden and summary judgment was granted.

This case is significant in that the court was willing to look at the underlying factual basis of the interrogatory responses in deciding the dispositive motion. Plaintiffs may no longer be able to prevent a shifting of the burden on motion practice by merely listing the defendants’ names without more to back up the allegation. This in turn may lead to more dispositive motions being granted and perhaps a lowering of settlement amounts. Time will tell how the court will interpret this decision going forward and how much the defense bar can rely on it.

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