noting that, on a motion for summary judgment, the moving defendant must "unequivocally establish that its product could not have contributed to the causation of plaintiffs injury"
How later courts described this case
- noting that, on a motion for summary judgment, the moving defendant must "unequivocally establish that its product could not have contributed to the causation of plaintiffs injury"
Written by the judges who cited it.
The opinion
Shuman v Pfizer, Inc.
2024 NY Slip Op 33845(U)
October 28, 2024
Supreme Court, New York County
Docket Number: Index No. 190115/2020
Judge: Adam Silvera
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 190115/2020
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 10/28/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ADAM SILVERA PART 13
Justice
-----------------------X INDEX NO. 190115/2020
FRANCINE SHUMAN,
MOTION DATE
Plaintiff,
MOTION SEQ. NO. _ _ _0;_;;_0=2_ _
-v-
PFIZER, INC.,INDIVIDUALLY AND AS SUCCESSOR-IN-
INTEREST TO COTY, RITE AID OF NEW YORK, INC.,RITE
AID OF NEW YORK CITY, INC.,WALGREEN EASTERN
CO., INC.,INDIVIDUALL Y AND AS SUCCESSOR-
ININTEREST TO RITE-AID, BRENNTAG NORTH
AMERICA, AS A SUCCESSOR-IN-INTEREST TO
MINERAL PIGMENT SOLUTIONS, INC.,AS A
SUCCESSOR-IN INTEREST TO WHITTAKER, CLARK &
DANIELS, INC.,BRENNTAG SPECIALTIES, INC.,F/K/A
MINERAL PIGMENT SOLUTIONS, INC.,AS A
SUCCESSOR-IN INTEREST TO WHITTAKER, CLARK &
DANIELS, INC.,COTY, INC.,CYPRUS AMAX MINERALS DECISION + ORDER ON
COMPANY, DUANE READE, INC.,INDIVIDUALLY AND AS MOTION
SUCCESSOR-IN-INTEREST TO ROCK BOTTOM
STORES, INC.,JOHNSON & JOHNSON, JOHNSON
CONSUMER COMPANIES, INC.,JOHNSON & JOHNSON
HEALTH AND WELLNESS SOLUTIONS, INC.,KOLMAR
LABORATORIES, INC.,WALGREENS BOOTS ALLIANCE,
INC.,INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST
TO DUANE READE, WALGREEN EASTERN CO.,
INC.,INDIVIDUALLY AND AS SUCCESSOR-IN- INTEREST
TO RITE-AID, WALGREEN CO., INC.,WHITTAKER, CLARK
& DANIELS, INC.,
Defendant.
------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 106, 107, 108, 109,
110,111,112,113,114,115,116,117,118,119,120,121,122,125,126,127,128,129,130,131,132,
133,134,135,136,137,138,139,140,141,142,143,144,145,146,147,148,149,150,151,152,153,
154,155,156,157,158
were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
Upon the foregoing documents and for the reasons set forth below, the Court denies the
motion for summary judgment by defendant Kolmar Laboratories, Inc. ("Defendant"), pursuant
to CPLR § 3212.
190115/2020 SHUMAN, FRANCINE vs. PFIZER, INC., INDIVIDUALLY Page 1 of4
Motion No. 002
1 of 4
[* 1]
INDEX NO. 190115/2020
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 10/28/2024
Defendant moves for summary judgment on the grounds that plaintiff, Francine L.
Shuman ("Plaintiff'), has not established that she was exposed to any asbestos-containing
product manufactured by Defendant; that, even if she has established exposure, she has not
established that any such product caused her cancer; and that, even if she has established
exposure and causation, Defendant still bears no liability because any such product was
manufactured per the specifications of co-defendant Johnson & Johnson, which Defendant was
contractually obliged to follow. See Memorandum of Law in Support of Motion for Summary
Judgment by Kolmar Laboratories, Inc., dated September 24, 2021, at 15-25.
In opposition, Plaintiff argues that Defendant has confirmed its active role in
manufacturing a product at issue, that Plaintiff's experts have offered sufficient evidence that
Plaintiff was exposed to and harmed by such product, and that Defendant can be held liable for a
product it manufactured despite its contractor status. See Affirmation in Opposition to Defendant
Kolmar Laboratories Inc.'s Motion for Summary Judgment at 13-18. Defendant replies that it
has met its burden on summary judgment, reiterating the arguments in its original motion. See
Memorandum of Law in Support of Motion for Summary Judgment by Kolmar Laboratories,
Inc., dated November 18, 2021, at 2-22.
Summary judgment is a drastic remedy. See Alvarez v Prospect Hosp., 68 NY2d 320, 324
(1986). "The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any
material issues of fact from the case". Winegrad v New York Univ. Med Ctr., 64 NY2d 851, 853
(1985). To meet this initial burden, the moving defendant must do more than "argue that plaintiff
could not affirmatively prove causation"; it must "affirmatively prove, as a matter oflaw, that
there was no causation." Dyer v Amchem Products Inc., 207 AD3d 408,409 (1st Dep't 2022);
190115/2020 SHUMAN, FRANCINE vs. PFIZER, INC., INDIVIDUALLY Page2 of4
Motion No. 002
2 of 4
[* 2]
INDEX NO. 190115/2020
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 10/28/2024
see also Reid v Georgia-Pac. Corp., 212 AD2d 462,463 (1st Dep't 1995) (noting that, on a
motion for summary judgment, the moving defendant must "unequivocally establish that its
product could not have contributed to the causation of plaintiffs injury"). The failure to make
such an affirmative showing requires denial of the motion without probing the sufficiency of the
plaintiffs opposing papers. See Winegrad, 64 NY2d at 853.
Even if the moving defendant makes a prima facie showing that it is entitled to judgment
as a matter oflaw, the court should deny a summary judgment motion if the plaintiff's opposing
papers present admissible evidence establishing that a genuine issue of fact remains. See
Zuckerman v City of New York, 49 NY2d 557, 560 (1980). One way that a plaintiff may do so is
by pointing to "competing causation evidence," which "constitue[s] the classic 'battle of the
experts,"' sufficient to raise a question of fact and to preclude summary judgment. Sason v Dykes
Lbr. Co., 221 AD3d 491, 492 (1st Dep't 2023), quoting Shillingford v New York City Tr. Auth,
147 AD3d 465,465 (1st Dep't 2017).
"In determining whether summary judgment is appropriate, the motion court should draw
all reasonable inferences in favor of the nonmoving party and should not pass on issues of
credibility." Garcia v J.C. Duggan, Inc., 180 AD2d 579,580 (1st Dep't 1992)(internal citation
omitted). The court's role is "issue-finding, rather than issue-determination." Sillman v Twentieth
Century-Fox Film Corp., 3 NY2d 395,404 (1957), quoting Esteve v Abad, 271 AD 725, 727 (1st
Dep't 1947) (internal quotation marks omitted). As such, summary judgment is rarely granted in
negligence actions unless no conflict exists in the evidence. See Ugarriza v Schmieder, 46 NY2d
471, 475-476 (1979).
Here, Defendant confuses who has the burden of proof at the summary judgment stage,
arguing that Plaintiff has failed to prove causation. Defendant's arguments focus largely on
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Motion No. 002
3 of 4
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INDEX NO. 190115/2020
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 10/28/2024
Plaintiffs inability to pinpoint how much, if any, of Defendant's product she used. But, at this
stage, Plaintiff need only raise a triable issue of fact concerning specific causation. Defendant
has confirmed that it manufactured a product at issue during the period of Plaintiffs exposure.
Furthermore, there is conflicting evidence as to the extent of Defendant's involvement with, and
as to Defendant's knowledge of the dangers of, the product. Thus, Defendant has failed to
"unequivocally establish that its product could not have contributed to the causation of
[P]laintiff s injury." Reid, 212 AD2d at 463. As Defendant has failed to meet its initial burden on
a motion for summary judgment, and issues of fact exist, summary judgment must be denied.
Accordingly, it is
ORDERED that Defendant's motion for summary judgment is denied in its entirety; and
it is further
ORDERED that within 30 days of entry Plaintiff shall serve all parties with a copy of this
Decision/Order with notice of entry.
This constitutes the Decision/Order of the Court.
10/28/2024
DATE ADAM SILVERA, J.S.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
190115/2020 SHUMAN, FRANCINE vs. PFIZER, INC., INDIVIDUALLY Page4of4
Motion No. 002
4 of 4
[* 4]