IN RE: the FIFTH JUDICIAL DISTRICT ASBESTOS LITIGATION Master Index No. 2001-1062.

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Supreme Court, Onondaga County, New York.

IN RE: the FIFTH JUDICIAL DISTRICT ASBESTOS LITIGATION Master Index No. 2001-1062. Albert Capuna and Bernice Capuna v. Fiberglass Corp., et al., Index No. 96-3811.

Julian F. Carr and Dorothy V. v. Owens-Corning Fiberglass Corp., et al., Index No. 97-7412.

Howard Chilson, Jr., and Edwina Chilson v. Fiberglass Corp., et al., Index No. 95-1740.

Edith A. Conklin, Individually and as Administratrix of the Estate of Francis J. Conklin v. Owens-Corning Fiberglass Corp., et al., Index No. 95-4469.

Sally A. Corcoran v. A. Keasbey, Co., et al., Index No. 95-1730.

Ray A. Cowen and Ruth C. Cowen v. Fiberglass Corp., et al., Index No. 96-3812.

Thomas J. El-Hage, Individually and as Administrator of the Estate of Rosemary El-Hage, deceased v. Fiberglass Corp., et al., Index No. 98-2877.

Jean B. Gilmore, Individually and as Administratrix of the Estate of Roger A. Gilmore, deceased v. Fiberglass Corp., et al., Index No. 95-1741.

Patricia Hunt, Individually and as Administratrix of the Estate of Jacob Lyn Hunt, deceased v. Fiberglass Corp., et al., Index No. 98-2258.

John E. Kenific and Ellen Kenific v. Fiberglass Corp., et al., Index No. 96-3813.

William N. Klamm and Sandra Klamm v. Fiberglass Corp., et al., Index No. 96-3814.

Dominic Longo, as Administrator of the Estate of Harry F. Longo, deceased v. Fiberglass Corp., et al., Index No. 98-0224.

William Mattice v. Fiberglass Corp., et al., Index No. 97-6887.

John J. Meyers and Loretta A. Meyers v. Fiberglass Corp., et al., Index No. 98-4092.

Muriel Money, Individually and Philip M. Money as Administrator of the Estate of Robert M. Money, deceased v. Fiberglass Corp., et al., Index No. 97-7319.

Leo Nolan and Lois Nolan v. Fiberglass Corp., et al., Index No. 97-7413.

Randy Perkins and Judy Perkins v. Fiberglass Corp., et al., Index No. 98-0225.

Deborah Randyn, for the Estate of Chester Randyn v. Fiberglass Corp., et al., Index No. 97-6889.

Leon E. Reynolds and Shirley J. Reynolds v. Fiberglass Corp., et al., Index No. 97-7414.

Robert Scheer v. Fiberglass Corp., et al., Index No. 95-4470.

Virginia Scheer v. Fiberglass Corp., et al., Index No. 95-4471.

Nancy Straka, for the Estate of Howard I. Cummings v. Fiberglass Corp., et al., Index No. 95-2200.

Leslie Taylor v. Owens-Corning Fiberglass Corp., et al., Index No. 97-6888.

Decided: September 20, 2004

Christopher M. Whyland, Esq., Manlius, for Plaintiffs. Andrew T. Cupit, Esq., Salmon, Ricchezza, Singer & Turchi, LLP, New York, for Defendant, Metropolitan Life Insurance Company.

LETTER DECISION

The above-referenced matters are before this court pursuant to defendant, Metropolitan Life Insurance Company's [hereinafter Metropolitan Life] motion for summary judgment [New York Civil Practice Law and Rules § 3212].   Following the receipt of the parties' submissions, the court reserved decision on August 9, 2004.   Having reviewed the voluminous submissions of the parties, for the reasons set forth below, this court makes the following Findings of Fact and Conclusions of Law.

Findings of Fact:

The facts underlying the twenty-three plaintiff's claims against the defendant are not in dispute, and find their genesis in a claimed civil conspiracy arising out an alleged failure of Metropolitan Life, its agents', servants' and/or employee's to disclose or publish information concerning the dangers of asbestos in the scientific and medical literature in the 1920's-1930's.   At the center of the plaintiffs' claims against Metropolitan Life are three studies conducted by or on behalf of the defendant into the medical effects of exposure to asbestos.

It is alleged in the plaintiffs' complaint that in the 1920's a study of Canadian asbestos mine workers revealed to Metropolitan Life that the workers suffered from asbestosis, and that the defendant failed to publish the information.   In 1932, plaintiffs allege the defendant, through its agents, Dr. Anthony Lanza and Dr. Fellow, conducted medical examination of employees of Johns-Mansville.   A report of the study demonstrated that a high percentage of employees in the study suffered from asbestosis, including those not directly involved in the manufacturing process.   The study was again not published in the medical literature of the time.   A third study conducted by Dr. Lanza, then Associate Medical Director of Metropolitan Life was published in 1935.   It is alleged by plaintiffs' that the study was published at the behest of members of the asbestos industry to:

․ affirmatively misrepresent a material fact about asbestos exposure;  i.e. the seriousness of disease process, asbestosis.   This was accomplished through intentional deletion of Dr. Lanza's description as ‘fatal’ and through other selective editing ․ that affirmatively misrepresented asbestos as a disease process less serious than it actually is and was known to be then.   As a result, Dr. Lanza's study was published in the medical literature in a misleading fashion in 1935 ․

[Plaintiffs' Complaint, Count III Civil Conspiracy].   These allegations, when taken together form the basis of the plaintiffs' claim of civil conspiracy and fraud against Metropolitan Life.

In support of its motion for summary judgment, defendant points to the following facts, which are not challenged by the plaintiffs:

[1] Metropolitan Life did not and does not engage in the business of manufacturing, fabricating, designing, distributing, selling or otherwise placing in the stream of commerce asbestos or other asbestos containing products;

[2] Plaintiffs do not allege that they had any contact with Metropolitan Life or its employees regarding asbestos;

[3] Plaintiffs do not allege that they read or heard anything that Metropolitan Life or its employees wrote or said about asbestos;  and

[4] Plaintiffs do not allege the existence a fiduciary, contractual, special or confidential relationship, or any relationship whatsoever with Metropolitan Life, its agents, servants or employees concerning asbestos.

Distilled to its essence, defendant's motions for summary judgment is predicated first upon an argument that the plaintiffs, regardless of how their cause of action is denominated, has failed to demonstrate a recognized duty to them, and that to impose a duty or liability in the instant action would in essence “․ [expand] liability to an unlimited class of persons [such as Plaintiffs] who were exposed to asbestos over many decades in many occupations, and who have had no relationship or connection whatsoever to Metropolitan Life.” [Defendant's Counsel's Affirmation in Support of Summary Judgment at ¶ 13 [emphasis original]].   In the alternative, defendant argues that the plaintiffs have failed to demonstrate a “justifiable detrimental reliance,” insofar as the dangers associated with asbestos exposure where documented long before the plaintiffs alleged exposure and there is no proof in the record before the court of any reliance by plaintiffs.   Lastly, defendant argues that plaintiffs are incapable of demonstrating “․ a legitimate causal nexus between the alleged acts and omissions of Metropolitan Life and their purported injuries.”  [Defendant's Counsel's Affirmation in Support of Summary Judgment at ¶ 19].

In opposition to the instant motion, plaintiffs' counsel first argues that:  New York courts have long recognized a cause of action for civil conspiracy based on the underlying tort of fraud.   The evidence of fraud committed by Metropolitan Life is overwhelming ․ A defendant who commits fraud is liable to whoever suffers the consequences for the fraudulent act, regardless of whether or not privity exists between the parties.

[Plaintiffs' counsel's Affirmation in Opposition to Summary Judgment at ¶ 4]. Plaintiffs' counsel further argues that:

Defendant has also asserted that the plaintiffs [sic] claim must fail because there is no evidence of proximate causation.   This argument is an insufficient basis for summary judgment as a prima facie case had been set forth in the pleadings raising a triable issue.   Specifically, by concealing and misrepresenting material facts related to the toxicity of asbestos, Met Life discouraged all persons exposed to asbestos from protecting themselves from future contact.   This misrepresentation prevented the general public and plaintiffs from making informed decisions about whether or not to work in an environment where asbestos was present.

[Plaintiffs' counsel's Affirmation in Opposition to Summary Judgment at ¶ 11].

Conclusions of Law:

It is well settled that:

‘[T]here is no independent tort in New York for civil conspiracy’ (Niagara Mohawk Power Corp. v. Testone, 272 A.D.2d 910, 911 [708 N.Y.S.2d 527];  see, American Baptist Churches of Metro. N.Y. v. Galloway, 271 A.D.2d 92, 101 [710 N.Y.S.2d 12] ).   Rather, ‘[a]llegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort’ (Alexander & Alexander of N.Y. v. Fritzen, 68 N.Y.2d 968, 969 [510 N.Y.S.2d 546, 503 N.E.2d 102] ).

Brenner v. American Cyanamid Co., 288 A.D.2d 869, 732 N.Y.S.2d 799 (4th Dept.2001), see also, Burdick v. Verizon Communications, Inc., 305 A.D.2d 1030, 758 N.Y.S.2d 877 (4th Dept.2003);  Kjar v. Jordan, 217 A.D.2d 981, 630 N.Y.S.2d 825 (4th Dept.1995);  McCarthy v. Weaver, 99 A.D.2d 652, 472 N.Y.S.2d 64 (4th Dept.1984). Thus, as framed by the plaintiffs in their complaint, the court turns it attention to the intentional tort of fraud.

 As recognized in New York, the necessary elements of fraud are:  “․ the misrepresentation of a material fact;  knowledge by the party making the misrepresentation that it was false when made;  justifiable reliance upon the statement;  and damages (Chimento Co., Inc. v. Banco Popular de Puerto Rico, 208 A.D.2d 385 [617 N.Y.S.2d 157];  Gouldsbury v. Dan's Supreme Supermarket, 154 A.D.2d 509, 510-511 [546 N.Y.S.2d 379], lv. denied 75 N.Y.2d 701 [551 N.Y.S.2d 905, 551 N.E.2d 106];  Brown v. Lockwood, 76 A.D.2d 721, 730, 432 N.Y.S.2d 186).”  Abrahami v. UPC Const. Co., Inc., 224 A.D.2d 231, 638 N.Y.S.2d 11 (1st Dept. 1996).   At the heart of defendant's motion for summary judgment is first an argument that plaintiffs have failed to proffer proof of “justifiable detrimental reliance” or any reliance whatsoever on the alleged affirmative misrepresentation by defendant.

It is well settled that:

Reliance is to fraud what proximate cause is to negligence;  that is to say, without reliance, there can be no recovery for fraud, Brackett v. Griswold, 112 N.Y. 454, 20 N.E. 376;  Restatement, Second, Torts § 546;  see O'Dell v. Ginsberg, 253 A.D.2d 544, 677 N.Y.S.2d 583 (alleged misrepresentation made after contract execution);  Megaris Furs, Inc. v. Gimbel Bros., Inc., 172 A.D.2d 209, 568 N.Y.S.2d 581.   It is not necessary for the representation to have been the exclusive cause of plaintiff's action or non-action;  it is sufficient that but for the representation plaintiff would not have acted or refrained from acting, that is, that the representation was a substantial factor in inducing plaintiff to act or refrain from acting, State Street Trust Co. v. Ernst, 278 N.Y. 104, 15 N.E.2d 416;  Ochs v. Woods, 221 N.Y. 335, 117 N.E. 305;  Curiale v. Peat, Marwick, Mitchell & Co., 214 A.D.2d 16, 630 N.Y.S.2d 996;  Restatement, Second, Torts, § 546;  see Arnold Constable Corp. v. Chase Manhattan Mortg. & Realty Trust, 59 A.D.2d 666, 398 N.Y.S.2d 422;  Matthews v. Schusheim, 42 A.D.2d 217, 346 N.Y.S.2d 386, aff'd, 35 N.Y.2d 686, 361 N.Y.S.2d 160, 319 N.E.2d 422 and mod. 46 A.D.2d 794, 361 N.Y.S.2d 184 (citing PJI).

N.Y. Pattern Jury Instructions 3:20 [Intentional Torts, Fraud and Deceit] (West 2004) [emphasis added].

As more fully set forth above, plaintiffs allege, in sum and substance that had the defendant published the findings of the 1920's and 1932 study, and not misrepresented the findings of the 1935 study, each would not have worked around asbestos.   However, aside from these conclusory assertions, this court finds that the plaintiffs' complaint and papers in opposition to the instant motion are utterly bereft of admissible evidence establishing either the awareness of the plaintiffs of the alleged misrepresentation and non-disclosure, or even if such awareness was to have been established, that such reliance would have been justified.

While the parties have not cited, nor has the court's independent research found a reported case in New York concerning the issues before it, attached to the defendant's motion papers are twenty unreported decisions from jurisdictions finding for defendant on the issue of liability.   Central to a number of the decisions cited by defendant is a finding that reliance, even if found, would not be justified in light of existing scientific literature at the time of the plaintiff' s alleged exposure.   As succinctly stated by Judge Kevin McCarthy in Caldo v. Asbestos Defendants, [Superior Court California, County of San Francisco, Case No. 412325 (April 8, 2004) No Opinion Reported]:

In light of the available information about the dangers of asbestos in the medical and scientific literature throughout the relevant time period, the Court finds that even if plaintiffs could show reliance, that reliance would not be justified as a matter of California Law. See, John Crane, Inc. v. Wommack, 227 Ga.App. 538, 540, 489 S.E.2d 527, 530 (1997) (affirming judgment against manufacturers of asbestos-containing products, noting that ‘reports concerning dangers ․ of asbestos were published in the 1930's'), cert. denied, 1998 Ga. LEXIS 201 (Ga. Jan. 30, 1998);  see also, Borel v. Fiberboard [Fibreboard ] Paper Prods. Corp., 493 F.2d 1076 (5th Cir.1973) (landmark case involving workplace warnings and exposure to asbestos dangers, upon which decision asbestos plaintiffs frequently rely to prove their case against asbestos manufacturers and sellers), cert. denied, 419 U.S. 869 [95 S.Ct. 127, 42 L.Ed.2d 107] (1974);  Owens-Illinois v. Zenobia, [325 Md. 420] 601 A.2d 633, 645 (Md. 1992) (as early as 1930, some 50 articles were published in medical literature concerning asbestos risks, the literature grew to nearly 1,000 articles by 1960).

Id., see also, Tuytel, Asbestos Litigation in British Columbia, Canada's First “Mass Toxic Tort” [http://www.cwilson.com/pubs/insurance/njt10/] [providing an overview of the history of the medical and scientific awareness of the dangers of asbestos as well as the governmental and regulatory response thereto].   In short, the court finds that there is not a scintilla of evidence demonstrating reliance or if found that such reliance could be found, in light of the foregoing to be justified, and, insofar as the plaintiffs have failed to meet their burden of proof with respect to an essential element of their claim, grants defendant, Metropolitan Life's motion for summary judgment.

The foregoing constitutes the Letter Decision of the court.

JAMES W. McCARTHY, J.

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