Miller v. Amerada Hess Corp.6/16/1999
This opinion is uncorrected and will not be published in the Official Reports.
Products Liability--Exposure to Toxic Substances
(*1)
Defendants Amerada Hess Corp., Amoco Corp., Amoco Oil Co., Chevron Chemical Co., Chevron U.S.A. Inc., Conoco, Inc., Exxon Corp., Fina Inc., Huntsman Petrochemical Co., Mobil Chemical Co., Inc., Mobil Oil Corp., Shell Oil Co., Texaco, Inc., Unocal, and E.I. du Pont de Nemours & Co. move for an order, pursuant to CPLR 3212, granting summary judgment in defendants' favor, dismissing the Complaint in its entirety, or alternatively, barring the testimony at trial of certain "crewmember fact witnesses" identified by plaintiff, and/or limiting the number of fact witnesses identified (*2)by plaintiff, and/or limiting the number of fact witnesses plaintiff may call at trial.
Defendants Farrell Lines, Inc. (as successor in interest to American Export Lines), lsbrandtsen Co. (improperly named herein as lsbrandtsen Lines, lsbrandtsen Co., Inc.), Keystone Tankship Corp. (improperly named as Keystone Shipping Co. a/k/a Keystone Tankership Corp.), Marine Transport Lines, Inc. and Mystic Steamship Corp. cross- move for the same relief, incorporating by reference the arguments advanced in the lead motion.
For the reasons which follow, the motions are granted in full dismissing the complaint.
BACKGROUND
This action is premised upon the Jones Act (46 USC ยง 688, et seq.), general admiralty law and maritime law. It is alleged that Moses Andrews was caused to contract acute myelogenic leukemia, and, ultimately, to die, as a result of his alleged exposure to benzene and other chemical carcinogens, between the years 1946 and 1972, while employed as a merchant mariner aboard various ships. On or about April 14, 1994, Andrews was diagnosed with acute myelogenic leukemia, and he died approximately six months later, on October 7, 1994.
On December 6, 1989, decedent retained the Jacques Admiralty Law Firm (the "Jacques Firm") to represent him "in prosecuting all claims for my maritime related occupational afflictions against whomsoever may be liable. . ." On or about July 8, 1993, (*3)the Jacques Firm, on behalf of decedent, initiated a lawsuit in the United States District Court for the Northern District of Ohio against various asbestos manufacturers. In that lawsuit, Andrews alleged that he was exposed to "asbestos toxic dust, which, along with other carcinogens and chemicals," caused him to suffer various diseases and afflictions, including, among other things, various forms of cancer. Thus, less than a year after commencing the lawsuit in the United States District Court, Andrews received his diagnosis of leukemia, and he died six months later. Although this lawsuit was filed within three years of Andrews' death, it was commenced more than three years after the leukemia diagnosis.
Plaintiff, Creighton E. Miller, Administrator of Andrews' Estate, commenced this action on or about October 7, 1997, on the three-year anniversary of Andrews' death. There are two categories of defendants named in the Complaint: (a) manufacturer defendants, i.e., manufacturers of chemicals or products containing benzene; and (b) shipowner defendants, i.e., the owners of the vessels upon which plaintiffs decedent worked and was allegedly exposed to benzene and benzene products. As against the manufacturer defendants, plaintiff asserts causes of action for breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, strict liability, negligence, nuisance, and wrongful death. As against the shipowner defendants, the causes of action set forth in the Complaint in
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