Sophisticated Intermediary Defense Prevails in New York

Several years ago, the New York Appellate Division, 4th Department, reversed summary judgment for defendants in the cases of two workers who alleged that they had developed silicosis from silica exposure to defendants’ silica, at the Olean, New York, facility of their employer, Dexter Corporation (now Henkel Corporation). The trial court motions were based upon the “sophisticated intermediary” defense, but the Appellate Division reversed, holding that there was a genuine issue of material fact with respect to potential confusion between amorphous and crystalline silica, based upon statements in an affidavit of a plaintiffs’ expert witness, made without personal knowledge. See Pete Brush, “NY Court Revives Workers’ Silica Inhalation Suits” (March 24, 2009).

On remand, further discovery and an amplified evidentiary record led to new motions for summary judgment. In a February 26, 2015, order, the New York Supreme Court for Cattaraugus County granted the motions, noting that “the sophisticated intermediary doctrine was tailor-made” for the facts of the two cases. Rickicki v. Borden Chemical, et al., Index No. 53395, and Crowley v. C-E Minerals, Inc., et al., Index No. 61024, N.Y. Supreme Ct., Cattaraugus Cty. (Feb. 26, 2015) (Patrick H. NeMoyer, J.), Slip op. at 24. See also Casetext, “Summary Judgment Re-entered After Remand from the NY Appellate Division in Rickick v. Borden” (April 2, 2015); HarrisMartin, “N.Y. Trial Court Awards Summary Judgment to Silica Defendant, Recognizes Sophisticated Intermediary Doctrine” (March 27, 2015).

The Rickicki case turned 25 years old in February 2015.

Print Friendly, PDF & Email

Comments are closed.