Mesothelioma Claim to Continue Against DAP, Despite Company’s Arguments
When Paul J. McPolin died of malignant mesothelioma, his family filed a personal injury lawsuit against several of the companies whose asbestos-containing products he was exposed to over the course of his life. Among the defendants was DAP, Inc., the manufacturer of numerous joint compounds. Though the company argued that their products did not match those described in Mr. McPolin’s deposition, the judge hearing the case denied their motion for summary judgment.
Affidavit Submitted by DAP, Inc. Fails to Meet Bar for Mesothelioma Claim to be Dismissed
In attempting to have the mesothelioma claim against it dismissed, DAP, Inc. submitted two affidavits from one of its employees, asserting that the company had not made, sold, or distributed any of the products that Mr. McPolin listed when he gave his deposition. But a petition for summary judgment, which asks for a case to be entirely dismissed, has a specific bar that must be met for it to be granted: a defendant must show that it would be impossible for their product to have been the cause of the plaintiff’s injury.
While DAP, Inc.’s affidavit claimed that the company had not made the products that McPolin described, the judge hearing arguments in the case in the Supreme Court of New York County noted that the affidavits did not unequivocally establish that its products could not have contributed to the causation of Mr. McPolin’s mesothelioma.
Judge in Mesothelioma Case Denies Defendant’s Request for Dismissal
Justice Adam Silvera hears many of the asbestos and mesothelioma cases filed in the state of New York, and in this case, he noted that DAP, Inc.’s motion for summary judgment relied entirely on an affidavit from an employee who did not “possess the requisite personal knowledge to establish that no DAP products containing asbestos were in circulation and used by plaintiff at the time of plaintiff’s exposure.”
In handing down his ruling, the judge agreed with the mesothelioma victim’s family that what the defendant had submitted was “devoid of evidentiary facts,” and that rather it had relied on “speculation and unsupported allegations.” The case will continue, based in large part on the strength of the “unequivocal testimony” that the dying victim had provided in his deposition.
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