A worker's failure to identify a defendant as a supplier of the asbestos product to which he alleges exposure dooms his claims, the New York Appellate Division, Fourth Department affirmed on April 28 in Gorzka v. Insulation Distributors, Inc.

Matthew Gorzka sued a number of defendants, alleging that he developed injuries related to his workplace exposure to asbestos. Defendant IDI moved for and was granted summary judgment by Justice James B. Kane. Plaintiffs appealed.

The court upheld the decision, stating that IDI had met its burden by establishing that Gorzka never identified it as a supplier of any asbestos product to which he alleged exposure. Plaintiffs' failure to name IDI as a supplier in his response to its interrogatories is an admission that it was not the source of asbestos-containing product to which he alleges exposure. The court held that Gorzka's evidence showing that IDI supplied asbestos-containing products to his employer is insufficient to create a reasonable inference that he was exposed to those products.

There has been a great deal of discussion about asbestos legislation in recent months. Still, federal legislation that would create a $140 billion trust fund to handle asbestos claimants is unlikely to come up for a vote on the Senate floor in the near future, and alternatives in the House of Representatives are also stalled.

Sources said leaders in the Republican Party will not bring S. 852, the Fairness in Asbestos Injury Resolution Act, back to the Senate floor until they are sure they have the 60 votes necessary to overcome the budget point of order.

The bill was on the Senate floor once already this year. At that time, Sen. John Ensign, R-Nev., raised a budget point of order that the Senate failed to overcome by a 58-to-41 vote on Feb. 14, sending the bill to the Senate Budget Committee. Sen. Arlen Specter, R.-Pa., and other supporters were quoted at the time as saying they would try to resurrect the bill, but sources now say Specter could have as few as 57 votes in support of the measure.

Sources said the bill's path is further obstructed because the Senate is considering immigration and pension reform. Sources said that little progress had been made on the bills and that work on them could continue until Memorial Day. Medical criteria legislation is likewise stuck. Sen. John Cornyn, R.-Texas, recently met with lobbyists and other interested in the bill, but sources said little progress was made.

Eric Genau

ERIC C. GENAU is an attorney at the law firm of Kenney Shelton Liptak Nowak LLP, and represents insurance carriers and self-insured companies in connection with claims and lawsuits for exposure to toxic substances across New York State. KSLN has been heavily involved in the defense of toxic tort and mass tort cases for many years, including the development of national defense strategies in its role as National and Regional Coordinating Counsel. KSLN maintains offices in Buffalo, Rochester and New York City. Eric also serves as counsel to the New Jersey law firm of Hoagland, Longo, Moran, Dunst & Doukas LLP.

Eric is a graduate of Fordham University, having received a B.A. in Political Science, and was selected as a Fordham University Emerging Leader in 1994. He received his law degree from the Northeastern University School of Law in 2001 after completing a curriculum in International Commercial Law at Oxford University. During law school, Eric served as a law clerk with the Boston firm of Cetrulo & Capone LLP, where he focused on toxic tort defense and helped to update portions of the Toxic Tort Litigation Guide. He also served as a law clerk with the United States Attorney's Office. He is a member of the New York State and Erie County Bar Associations, and the Defense Research Institute. Eric is an experienced trial attorney and has experience in many areas of civil and commercial litigation. Eric is a dedicated high school hockey coach, regularly attends alumni events in the Buffalo, Boston and New York City areas, and serves as Chair for the Fordham Club of Buffalo.