Post on 11-May-2018
New York County Clerk’s Index No. 190421/11
New York Supreme CourtAPPELLATE DIVISION — FIRST DEPARTMENT
IN RE: NEW YORK CITY
ASBESTOS LITIGATION
ALICE KESTENBAUM,
as Executrix of the Estate of FRANK KESTENBAUM,
Plaintiff-Respondent,against
DUREZ CORP., et al.,Defendants,
and
UNION CARBIDE CORPORATION,
Defendant-Appellant.
>> >>
To Be Argued By:Scott A. Chesin
BRIEF FOR DEFENDANT-APPELLANT
UNION CARBIDE CORPORATION
Scott A. Chesin
Michael Rayfield
MAYER BROWN LLP
1675 Broadway
New York, New York 10019
212-506-2500
schesin@mayerbrown.com
mrayfield@mayerbrown.com
Jonathan Kromberg
DARGER ERRANTE YAVITZ
& BLAU LLP
116 East 27th Street, 12th Floor
New York, New York 10016
212-452-5300
jkromberg@deybllp.com
Printed on Recycled Paper
Attorneys for Defendant-Appellant Union Carbide Corporation
TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................................................... 1
QUESTION INVOLVED .......................................................................................... 3
STATEMENT OF THE FACTS AND THE CASE .................................................. 3
SUMMARY OF ARGUMENT ................................................................................. 7
STANDARD OF REVIEW ....................................................................................... 9
ARGUMENT ........................................................................................................... 10
I. To Survive Summary Judgment, Plaintiff Must Adduce Evidence Of
“Probable” Exposure To Asbestos From A Product Attributable To
UCC ..................................................................................................... 10
II. The Record Would Not Permit A Jury To Conclude That It Is
“Probable” That Mr. Kestenbaum Was Exposed To Asbestos From A
Product Attributable To UCC ............................................................. 11
A. Mr. Kestenbaum’s Testimony Cannot Establish That
The Plastic Sheets Contained Asbestos .................................... 12
B. The Evidence Cited By The Trial Court Cannot Establish That
The Plastic Sheets Contained Asbestos .................................... 12
1. Mr. Martino’s Testimony ............................................... 13
2. Ms. Carrington’s Testimony ........................................... 16
CONCLUSION ........................................................................................................ 18
TABLE OF AUTHORITIES
Page(s)
-ii-
CASES
Abulhasan v. Uniroyal-Goodrich Tire Co.,
14 A.D.3d 900 (3d Dep’t 2005) .......................................................................... 10
Curran v. Esposito,
308 A.D.2d 428 (2d Dep’t 2003) ........................................................................ 14
Diel v. Flintkote Co.,
204 A.D.2d 53 (1st Dep’t 1994) ............................................................. 10-11, 13
Duane Reade, Inc. v. Cardtronics, LP,
54 A.D.3d 137 (1st Dep’t 2008) ........................................................................... 9
Healey v. Firestone Tire & Rubber Co.,
87 N.Y.2d 596 (1996) ................................................................... 9, 10, 11, 13, 14
Hirsch v. S. Berger Import & Mfg. Corp.,
67 A.D.2d 30 (1st Dep’t 1979) ........................................................................... 10
O’Connor-Miele v. Barhite & Holzinger, Inc.,
234 A.D.2d 106 (1st Dep’t 1996) ....................................................................... 10
Peridicaro v. A.O. Smith Water Products,
52 A.D.3d 300 (1st Dep’t 2008) ................................................................... 14, 15
Pirrelli v. Long Island R.R.,
226 A.D.2d 166 (1st Dep’t 1996) ......................................................................... 9
Rinaldi & Sons, Inc. v. Wells Fargo Alarm Serv., Inc.,
39 N.Y.2d 191 (1976) ......................................................................................... 13
Rothouse v. Ass’n of Lake Mohegan Park Prop. Owners, Inc.,
15 A.D.2d 739 (1st Dep’t 1962) ........................................................................... 9
Schiraldi v. U.S. Mineral Prods.,
194 A.D.2d 482 (1st Dep’t 1993) ....................................................................... 11
Stukas v. Streiter,
83 A.D.3d 18 (2d Dep’t 2011) .............................................................................. 9
TABLE OF AUTHORITIES
(continued)
Page(s)
-iii-
Williams v. AC&S, Inc.,
No. 107181/2001 (N.Y. Sup. Ct. June 24, 2010) ............................................... 15
Zuckerman v. City of New York,
49 N.Y.2d 557 (1980) ..................................................................................... 9, 14
STATUTES
C.P.L.R. § 3212(b) ..................................................................................................... 9
INTRODUCTION
Plaintiff brought this wrongful-death action against defendant Union
Carbide Corporation (“UCC”) for injuries sustained by her deceased husband,
Frank Kestenbaum, from alleged exposure to asbestos. Plaintiff claims that when
Mr. Kestenbaum was working as a salesman at Cadillac Plastic & Chemical Co.
from 1969 to 1972, he was occasionally exposed to asbestos when he cut into
laminated plastic sheets, rods, and tubes allegedly manufactured by UCC from
material called “phenolic resins.” Plaintiff further alleges that Mr. Kestenbaum’s
exposure to asbestos from UCC’s products and those of other companies—whom
Plaintiff has also sued, but which are not the subject of this appeal—caused Mr.
Kestenbaum’s death by pleural mesothelioma.
UCC moved for summary judgment, arguing (among other things) that
regardless of who manufactured the plastic products at issue, no reasonable juror
could find by a preponderance of the evidence that Mr. Kestenbaum was exposed
to asbestos from those products because there was no evidence in the record to
establish that they contained asbestos in the first place. Although the trial court
recognized that Mr. Kestenbaum did not know whether the products he worked
with contained asbestos—indeed, he testified that he worked with plastic sheets
made from other materials—it nonetheless denied UCC’s motion. The court
concluded that two pieces of evidence created a triable issue of fact as to whether
-2-
the plastic sheets Mr. Kestenbaum allegedly used contained asbestos: (1) a
witness’s supposed “testimony that approximately 40 percent of UCC’s phenolic
resins contained asbestos” during the relevant period; and (2) a different witness’s
testimony that “she was not familiar with certain UCC documents” shown to her at
her deposition suggesting that one of UCC’s polystyrene fibrous resins—a
different product from phenolic resins—may have been combined with asbestos on
some unspecified occasions. Based on this evidence, the court concluded that
“there [wa]s enough to question UCC’s position that the resins Mr. Kestenbaum
worked with were universally asbestos-free.”
The trial court erred. By definition, evidence that 40% of UCC’s phenolic
resins contained asbestos, or that the resins were not “universally asbestos-free”
(even if credited), could not satisfy plaintiff’s burden of adducing evidence from
which a reasonable jury could conclude that it was reasonably probable that the
plastic sheets Mr. Kestenbaum allegedly used contained asbestos. And because
there is no evidence that those plastic sheets were made from polystyrene fibrous
resins, the testimony about that product likewise cannot satisfy plaintiff’s burden.
This Court should therefore reverse the trial court’s order and remand with
instructions to grant UCC’s motion for summary judgment.
-3-
QUESTION INVOLVED
In an action seeking damages for alleged injuries from exposure to asbestos, is
summary judgment for the defendant proper where:
(a) the decedent admittedly had no personal knowledge of whether the
plastic sheets he allegedly used contained asbestos; and
(b) the only circumstantial evidence of asbestos exposure was
(i) testimony that the type of component material used to make the
plastic sheets contained asbestos less than half of the time; and
(ii) testimony that a different component material, not used to make
the plastic sheets the decedent allegedly used, was sometimes
combined with asbestos?
Trial Court’s Answer: No.
STATEMENT OF THE FACTS AND THE CASE
According to his deposition testimony, Mr. Kestenbaum worked at Cadillac
Plastic & Chemical Co. from 1969 to 1972. R. 216 at 158.1 He worked primarily
as a salesman, but on a “couple” of occasions he “had to help out and cut some
materials” on the manufacturing floor (R. 186 at 100), including plastic sheets,
rods, and tubes (R. 189 at 110). Mr. Kestenbaum testified that the materials he
worked with were made of “bakelite,” which he stated was a phenolic resin
product. R. 186 at 99-101, R. 189 at 110-11, R. 212 at 144-45, R. 290 at 364-367.
1 “R. __” refers to the record on appeal. When a page of the record includes
four pages of a deposition transcript, the citation “R. __ at __” specifies the page or
pages being referenced.
-4-
At the time Mr. Kestenbaum worked at Cadillac, UCC manufactured and
sold phenolic resins (as well as other plastic component materials) under the trade
name “Bakelite.” UCC’s phenolic resins were component materials sold in liquid
form that other companies used to make laminated plastic products. See R.
386-87. “Bakelite” came to be known throughout the industry as a generic term
for both phenolic component materials and many kinds of finished plastic
products. R. 434-36. But as the trial court noted, “Mr. Kestenbaum testified that
the Bakelite sheets he and his colleagues worked with at Cadillac [were] purchased
directly from UCC”2 and plaintiff alleged “that the process of cutting and drilling
those Bakelite sheets contributed to [Mr. Kestenbaum’s] asbestos exposure.”
R. 7.3
As the trial court also found, however, Mr. Kestenbaum “had no personal
knowledge whether those sheets actually contained asbestos.” R. 7-8; see also R.
213 at 148-49. UCC’s internal sales records do not indicate any sales of asbestos-
containing products to Cadillac during the period when Mr. Kestenbaum worked
2 Mr. Kestenbaum testified that the principal supplier of the laminated plastic
sheets he used at Cadillac was a company called Franklin Fibre. R. 338 at 35. At
one point in his discovery deposition, however, he did state that Cadillac also
purchased sheets from UCC (R. 187 at 102), although he did not identify UCC in
his evidence deposition.
3 As noted, Mr. Kestenbaum testified that he worked with plastic sheets, rods,
and tubes manufactured by UCC. The trial court used the word “sheets” in its
opinion; we largely do the same in this brief, for ease of reference.
-5-
there. R. 384 at 15-16. Nor has plaintiff pointed to any Cadillac purchase records
indicating that it purchased any asbestos-containing products from UCC. Indeed,
Mr. Kestenbaum testified that the plastic products he worked with at Cadillac
“came in canvas, paper, [and] glass” (R. 192 at 122), which are reinforcing
materials distinct from asbestos that can be combined with phenolic resins to make
plastic sheets or other such finished plastic products.
In 2011, Mr. Kestenbaum was diagnosed with pleural mesothelioma. He
and plaintiff sued several defendants, including UCC, seeking damages based on
his alleged asbestos exposure. See R. 59-66. On March 13, 2013, following his
depositions in December 2011 and May 2012 (R. 161-374), Mr. Kestenbaum
passed away. Plaintiff filed a wrongful-death complaint as executor of Mr.
Kestenbaum’s estate in April 2013. R. 375-79.
In July 2013, UCC produced corporate witness Susan Carrington for a
deposition. See R. 380-430. As the trial court noted (R. 8-9), Ms. Carrington
testified that none of UCC’s phenolic resins contained asbestos (R. 386 at 22-23).
Although UCC “made phenolic mold compounds” under the trade name “Bakelite”
that “sometimes contained asbestos as a filler,” UCC “never made [phenolic]
resins . . . that would have contained a filler like asbestos.” R. 394 at 54-55
(emphases added). During the same deposition, plaintiff’s counsel read from a
1960 document purporting to show that one polystyrene fibrous resin—a different
-6-
form of plastic also manufactured by UCC—may at some point have been
combined with asbestos. R. 395-96. Ms. Carrington testified that she could not
tell from that document whether the polystyrene fibrous resin product identified
therein was ever combined with asbestos. R. 396 at 64-65.
After the close of discovery, UCC moved for summary judgment, arguing
that no reasonable juror could conclude by a preponderance of the evidence that
Mr. Kestenbaum was exposed to a product attributable to UCC that contained
asbestos. See R. 14-15; R. 37-54. UCC submitted an affidavit from
polymer-science engineer Dr. John R. Moalli concluding that Mr. Kestenbaum’s
alleged asbestos exposure could not have come from a UCC product because
UCC’s “phenolic resins never contained asbestos.” R. 437.
Plaintiff opposed UCC’s motion. R. 485-507. One exhibit she attached was
a March 21, 2008, deposition transcript of former UCC corporate representative
Carlo Martino taken in an unrelated asbestos case. R. 669-99. Mr. Martino
testified in that case that in 1969, “about 40 percent of [UCC]’s production
contained asbestos.” R. 680 at 44.
The trial court denied UCC’s motion for summary judgment. R. 4-13. After
summarizing the evidence and the summary judgment standard (see R. 6-11), the
court concluded:
In light of . . . Ms. Carrington’s testimony regarding UCC’s fibrous
resins and Mr. Martino’s testimony that approximately 40 percent of
-7-
UCC’s phenolic resins contained asbestos in 1969,[4] there is enough
to question UCC’s position that the resins Mr. Kestenbaum worked
with were universally asbestos-free. Accordingly, it is hereby ordered
that Union Carbide’s motion for summary judgment is denied.
R. 11.
This appeal followed. See R. 3.
SUMMARY OF ARGUMENT
The trial court erred in denying UCC’s motion for summary judgment. To
survive summary judgment, plaintiff had to submit evidence from which a
reasonable jury could conclude, by a preponderance of the evidence, that Mr.
Kestenbaum was exposed to asbestos from a product attributable to UCC. She
failed to do so. Mr. Kestenbaum did not know whether the plastic sheets he
allegedly worked with at Cadillac contained asbestos. In fact, he testified that they
were made with other materials. And the two pieces of circumstantial evidence
4 The trial court interpreted the statement Mr. Martino made in his 2008
deposition to mean “that in 1969 40% of UCC’s phenolic resin products contained
asbestos.” R. 10. UCC believes that was an erroneous interpretation. The
question posed to Mr. Martino was: “In 1969, how many products did Union
Carbide manufacture in the phenolic resin part of the business that actually had
asbestos in it?” R. 680 at 44. Mr. Martino’s answer referenced UCC’s
“production” generally, not its phenolic resins in particular. Id. Read in proper
context, Mr. Martino’s testimony indicates that, at one time, 40% of UCC’s
phenolic products, including phenolic molding compounds (a different component
material from phenolic resins), may have contained asbestos. As discussed below,
this Court need not determine whether the trial court’s interpretation was correct;
for purposes of this appeal, we will assume (contrary to fact) that a jury could
conclude that in 1969, 40% of the phenolic resins manufactured by UCC contained
asbestos.
-8-
cited by the trial court, even if credited as true, could not satisfy plaintiff’s burden
of establishing that the sheets contained asbestos. Mr. Martino’s supposed
testimony that there was asbestos in 40% of the phenolic resins UCC made in 1969
surely does not make it more likely than not that the plastic sheets Mr. Kestenbaum
allegedly used contained asbestos. And Ms. Carrington’s testimony about a
polystyrene fibrous resin is irrelevant because there is no evidence that the plastic
sheets Mr. Kestenbaum allegedly used were made from this component material;
Mr. Kestenbaum repeatedly testified that the products were made from phenolic
resins, a different material. And even if the sheets had been made from
polystyrene fibrous resins, evidence that one such resin at some point may have
been combined with asbestos is not enough to make it more likely than not that the
sheets Mr. Kestenbaum used contained asbestos.
In short, the trial court asked the wrong question. The judge concluded that
summary judgment was not warranted because there was a question of fact
whether UCC’s phenolic resins “were universally asbestos-free.” But at trial,
plaintiff must prove more than that some UCC products contained asbestos, or that
it is possible that Mr. Kestenbaum was exposed. She must adduce evidence from
which a jury could conclude that the plastic sheets Mr. Kestenbaum used more
likely than not contained asbestos, such that it is probable he was exposed. No
-9-
rational jury could draw that conclusion even if it accepts the evidence in the
record. Summary judgment is therefore appropriate.
STANDARD OF REVIEW
This Court reviews the trial court’s denial of UCC’s motion for summary
judgment de novo. Duane Reade, Inc. v. Cardtronics, LP, 54 A.D.3d 137, 140 (1st
Dep’t 2008); Rothouse v. Ass’n of Lake Mohegan Park Prop. Owners, Inc., 15
A.D.2d 739, 739 (1st Dep’t 1962). Such a motion must be “granted if, upon all the
papers and proof submitted, the cause of action or defense shall be established
sufficiently to warrant the court as a matter of law in directing judgment in favor of
any party.” C.P.L.R. § 3212(b).
The party seeking summary judgment must make a prima facie showing that
it is entitled to judgment as a matter of law. Pirrelli v. Long Island R.R., 226
A.D.2d 166, 166 (1st Dep’t 1996). If such a showing is made, the burden shifts to
the nonmoving party “to raise a triable issue of fact with respect to the elements or
theories established by the moving party.” Stukas v. Streiter, 83 A.D.3d 18, 25 (2d
Dep’t 2011). The opposing party “must produce evidentiary proof in admissible
form sufficient to require a trial of material questions of fact on which [she] rests
[her] claim.” Zuckerman v. City of New York, 49 N.Y.2d 557, 558-59 (1980).
“Speculative or conjectural evidence” is insufficient. Healey v. Firestone Tire &
Rubber Co., 87 N.Y.2d 596, 602 (1996).
-10-
The Court then determines, based “on the version of facts most favorable to
plaintiff,” whether there is a “material question of fact which precludes summary
judgment.” O’Connor-Miele v. Barhite & Holzinger, Inc., 234 A.D.2d 106, 106
(1st Dep’t 1996). “It is incumbent on the Court . . . to search the proof, if any,
proffered by affidavits or otherwise, to ascertain whether it discloses a real issue,
rather than a formal, perfunctory, or shadowy one.” Hirsch v. S. Berger Import
& Mfg. Corp., 67 A.D.2d 30, 34 (1st Dep’t 1979).
ARGUMENT
I. TO SURVIVE SUMMARY JUDGMENT, PLAINTIFF MUST
ADDUCE EVIDENCE OF “PROBABLE” EXPOSURE TO
ASBESTOS FROM A PRODUCT ATTRIBUTABLE TO UCC.
To succeed on a wrongful-death claim based on alleged exposure to
asbestos, a plaintiff must “establish that the decedent was exposed to the
defendant’s product” and “that the decedent’s injury was proximately caused by
the defendant’s asbestos.” Diel v. Flintkote Co., 204 A.D.2d 53, 54 (1st Dep’t
1994). The plaintiff must show that these facts are “reasonably probable, and not
merely possible or evenly balanced.” Healey, 87 N.Y.2d at 601 (emphasis added);
see also Abulhasan v. Uniroyal-Goodrich Tire Co., 14 A.D.3d 900, 901 (3d Dep’t
2005). Thus, if the evidence presented at summary judgment would not permit a
reasonable juror to find by a preponderance of the evidence “that the decedent was
exposed to asbestos from the defendant’s product, summary judgment should [be]
-11-
awarded.” Diel, 204 A.D.2d at 54; see also Schiraldi v. U.S. Mineral Prods., 194
A.D.2d 482, 483 (1st Dep’t 1993) (summary judgment proper because of absence
of evidence that plaintiff was exposed to an asbestos-containing product
manufactured by the defendant).
II. THE EVIDENCE WOULD NOT PERMIT A JURY TO CONCLUDE
THAT IT IS “PROBABLE” THAT MR. KESTENBAUM WAS
EXPOSED TO ASBESTOS FROM A PRODUCT ATTRIBUTABLE
TO UCC.
For the purposes of this appeal, we will accept as true Mr. Kestenbaum’s
testimony that some of the plastic sheets he worked with at Cadillac were
purchased from UCC and manufactured from phenolic resins.5 In order to prevail
at trial, then, plaintiff would have to prove to the jury that it was “reasonably
probable”—more likely than not—that the plastic sheets allegedly purchased from
UCC contained asbestos. Healey, 87 N.Y.2d at 601. The evidence in the record
would not allow a reasonable jury to come to that conclusion.
5 Although not material to this appeal, UCC disputes that Mr. Kestenbaum
used finished plastic sheets that Cadillac purchased directly from UCC because
UCC did not sell finished plastic products. It sold phenolic resins, a component
material that third-party manufacturers combined with a reinforcing material—like
canvas, paper, or glass—to manufacture laminated plastic products, such as the
plastic sheets that Mr. Kestenbaum allegedly used. See R. 386-87.
-12-
A. Mr. Kestenbaum’s Testimony Cannot Establish That The Plastic
Sheets Contained Asbestos.
The trial court recognized (see R. 7-8) that there is nothing in Mr.
Kestenbaum’s testimony itself that would allow a jury to conclude that while
working for Cadillac, he was exposed to asbestos from a plastic sheet allegedly
purchased from UCC. As the trial court found, Mr. Kestenbaum “had no personal
knowledge whether those sheets actually contained asbestos” (id.), and he readily
admitted that no one other than his attorney told him that they did (R. 213 at
148-49). Indeed, he did know that at the request of Cadillac’s customers, he had
ordered sheets that “came in canvas, paper, [and] glass” (R. 192 at 122-24), which
are reinforcing materials distinct from asbestos. Mr. Kestenbaum’s testimony on
this subject is confirmed by UCC’s internal sales records, which do not indicate
any sales of asbestos-containing products by UCC to Cadillac during the period
Mr. Kestenbaum worked there (see R. 384 at 15-16), and by the absence in the
record of any Cadillac purchase records indicating a purchase of
asbestos-containing products from UCC.
B. The Evidence Cited By The Trial Court Cannot Establish That
The Plastic Sheets Contained Asbestos.
While acknowledging that Mr. Kestenbaum did not know whether he was
exposed to asbestos from a UCC product (see R. 7-8), the trial court nonetheless
concluded that plaintiff could survive summary judgment based on two pieces of
-13-
evidence: (1) “Mr. Martino’s testimony that approximately 40 percent of UCC’s
phenolic resins contained asbestos in 1969”; and (2) “Ms. Carrington’s testimony
regarding UCC’s fibrous resins” (R. 11). Neither of these pieces of evidence, even
if credited as true, would entitle a reasonable juror to conclude that it was more
likely than not that the plastic sheets Mr. Kestenbaum allegedly worked with
contained any asbestos. Again, the trial court itself found only that this evidence
showed that “there [wa]s enough to question” whether UCC’s phenolic resins
“were universally asbestos-free.” Id.
1. Mr. Martino’s Testimony
Even if the trial court’s interpretation of Mr. Martino’s testimony were
correct (but see n.4 supra), it would establish, at most, that 40% of the phenolic
resins made by UCC in 1969 contained asbestos, and thus that there is a less than
50% chance that the finished products Mr. Kestenbaum allegedly used contained
asbestos. By definition, that would not entitle a reasonable jury to conclude that
such a fact was “reasonably probable, and not merely possible or evenly balanced.”
Healey, 87 N.Y.2d at 601; see also Rinaldi & Sons, Inc. v. Wells Fargo Alarm
Serv., Inc., 39 N.Y.2d 191, 196 (1976) (“[A] 50% probability means that no one
result is any more likely than the other, as a matter of logical necessity, and
therefore as a matter of law.”); Diel, 204 A.D.2d at 54 (if the evidence presented at
summary judgment would not permit a reasonable juror to find by a preponderance
-14-
of the evidence “that the decedent was exposed to asbestos from the defendant’s
product, summary judgment should [be] awarded”).6
This Court came to an analogous conclusion in Peridicaro v. A.O. Smith
Water Products, 52 A.D.3d 300 (1st Dep’t 2008). In that case, the plaintiff alleged
that he was exposed to asbestos-containing insulation while other workers were
installing it on new equipment at a Con Edison site. The trial court denied the
defendant’s motion for summary judgment, but this Court reversed, reasoning that
the plaintiff had “offered no factual support that would reasonably suggest that the
insulation he saw in use at the time he was purportedly present at the Con Ed
powerhouses was asbestos-based; the evidence indicated that insulation utilized at
these powerhouses often contained fire/heat-resistant components other than
asbestos.” 52 A.D.3d at 300 (emphases added).
Likewise, even construing Mr. Martino’s testimony as the trial court did, it
would clearly “indicate[]” that UCC’s phenolic resins “often contained . . .
6 It should also go without saying that a plaintiff cannot not survive summary
judgment without proffering evidence that would allow the jury to find in her favor
based on reasonable inference rather than speculation. See Healey, 87 N.Y.2d at
602; Zuckerman, 49 N.Y.2d at 559; Curran v. Esposito, 308 A.D.2d 428, 429 (2d
Dep’t 2003) (reversing a denial of summary judgment where the evidence would
permit the jury to “base a finding of proximate cause upon nothing more than
speculation”). The evidence cited by the trial court could not, by definition, lead
to the reasonable inference that the sheets Mr. Kestenbaum used probably
contained asbestos. To draw such a conclusion, the jury would need to engage in
guesswork.
-15-
components other than asbestos.” Id. In fact, it would mean that at least 60% of
the phenolic resins made by UCC in 1969 did not contain asbestos. As in
Perdicaro, plaintiff’s evidence is thus “insufficient to raise a factual issue whether”
Mr. Kestenbaum was exposed to an asbestos-containing product attributable to the
defendant (here, UCC). Id.
Similarly, in Williams v. AC&S, Inc., No. 107181/2001 (N.Y. Sup. Ct.), the
plaintiff alleged that he was exposed to asbestos as a result of being around other
people who were cutting gasket material at a General Electric facility. 6/24/2010
Order, Williams, at 1.7 Plaintiff’s only fact witness testified that he believed this
gasket material contained asbestos because “different guys that worked with
[him]” told him so. Id. The defendant presented evidence “that 75% of the sheet
gasket material produced by it did not contain asbestos.” Id. at 2 (emphasis
added). Citing Perdicaro, the same trial judge who denied UCC’s motion in this
case found that “[b]ased upon [the fact witness’s] testimony . . . , plaintiff[] ha[d]
failed to provide any concrete evidence, but merely speculation, that the [ ] sheet
gasket material to which plaintiff was exposed contained asbestos.” Id. The court
then concluded that there was “insufficient evidence to make it ‘reasonably
probable . . . that the defendant was the source of the offending product.’” Id.
7 By letter filed concurrently with this brief, UCC has requested judicial
notice of the order in Williams, which is unreported.
-16-
(quoting Healey). In other words, evidence that 25% of the defendant’s material
contained asbestos was insufficient to satisfy plaintiff’s burden of proving that the
particular product to which he allegedly was exposed contained asbestos, even
where a witness testified that it did.
Here too, even if Mr. Martino’s testimony were construed to mean that 40%
of the phenolic resins made by UCC in 1969 contained asbestos, that would not
make it “reasonably probable” that the plastic sheets Mr. Kestenbaum allegedly
worked with contained asbestos. If anything, Williams was a stronger case for the
plaintiff; there, a fact witness who actually worked with the gasket materials
testified (albeit based on hearsay) that they contained asbestos. There is no such
evidence here; as discussed above, Mr. Kestenbaum himself had no personal
knowledge to support his claim, and there are no sales records indicating that UCC
sold asbestos-containing products to Cadillac. If the defendant was entitled to
summary judgment in Williams, UCC is entitled to summary judgment in this case.
2. Ms. Carrington’s Testimony
The trial court also relied on Ms. Carrington’s testimony that she could not
tell, based on the 1960 document shown to her at her deposition, whether anyone
ever combined polystyrene “fibrous resins” with asbestos. R. 396 at 64-65
(emphasis added); see pp. 5-7 supra. That testimony is even less helpful to
plaintiff than Mr. Martino’s; it is wholly irrelevant. Even assuming that any UCC
-17-
polystyrene fibrous resins might have been combined with asbestos in 1960—
almost a full decade before Mr. Kestenbaum’s alleged exposure while working at
Cadillac from 1969 to 1972—there is no evidence that polystyrene fibrous resins
are the same as phenolic resins or that polystyrene fibrous resins were even used to
make laminate products. In fact, polystyrene fibrous resins and phenolic resins are
different materials, and plaintiff does not allege that Mr. Kestenbaum ever used
finished products made from polystyrene fibrous resins. Thus, a jury could not
possibly rely on Ms. Carrington’s testimony (or the 1960 document, which plaintiff
did not even submit to the trial court) to find it more likely than not that the plastic
sheets Mr. Kestenbaum allegedly used contained asbestos.
In any event, even if Mr. Kestenbaum had used products made with
polystyrene fibrous resins, the document presented at Ms. Carrington’s deposition
would not satisfy plaintiff’s burden for the same reason Mr. Martino’s testimony
does not. The document does not say that all fibrous resins contained asbestos; it
says that one such resin may have been combined with asbestos. That evidence
alone would not permit a reasonable jury to conclude that any particular product
made with polystyrene fibrous resins in 1960 contained asbestos, and certainly
would not permit the jury to conclude that it is reasonably probable that the plastic
sheets Mr. Kestenbaum allegedly used at Cadillac nearly a decade later contained
asbestos.
-18-
* * *
The trial court held that UCC was not entitled to summary judgment because
the evidence created a triable issue as to whether UCC’s phenolic resins “were
universally asbestos-free.” But as a matter of law, that is not enough. To avoid
summary judgment, plaintiff bore the burden of adducing evidence from which a
reasonable jury could conclude that it was reasonably probable that the plastic
sheets Mr. Kestenbaum allegedly used contained asbestos. She failed to do so.
CONCLUSION
This Court should reverse and remand with instructions to grant UCC’s
motion for summary judgment.
-19-
Dated: New York, New York
January 27, 2014
MAYER BROWN LLP
Scott A. Chesin
Michael Rayfield
1675 Broadway
New York, N.Y. 10019
(212) 506-2500
DARGER ERRANTE YAVITZ
& BLAU LLP
Jonathan Kromberg
116 East 27th Street, 12th Floor
New York, N.Y. 10016
(212) 452-5300
Attorneys for Defendant-Appellant Union
Carbide Corporation
PRINTING SPECIFICATIONS STATEMENT
I, Michael Rayfield, attorney for defendant-appellant Union Carbide
Corporation, hereby certify that this brief is in compliance with § 600.10(d)(1)(v).
The brief was prepared using Microsoft Word 2007. The typeface is Times New
Roman. The main body of the brief is in 14-point type. Footnotes and point
headings are in compliance with § 600.10(a)(3). The brief contains 4184 words as
counted by the Microsoft Word word-processing program.
Dated: New York, New York
January 27, 2014
SUPREME COURT OF TIlE STATE OF NEW YORKCOUNTY OF NEW YORK
IN RE NEW YORK CITYASBESTOS UTIOATION
NYCAL
ALICE KESTENBAUM, as Executrix of the Estate of Index No. 190421/2011FRANK KESTENBAUM,
Dt fREZ CORP., et al..
Appeal from:
County:
Judge:
PlaintilI-against-
Defendants.
Supreme COUrl
New York County
lion. Shcrry Klcin liciticr
PRE-ARGUMENTSTATEMENT
Index No: 190421/20 II (Alice Kestenbaum, as Ett:(:lIfrix l?ltlw Eslalt: l!lFrank Kt:stt:nhaum, Plainti fI)
Datc Notice of Appeal Filed: January 15,2014
[)at~ of Ordcr:
Date of Entry:
For Appellant:
For Respondent:
Related Appeals:
December 24, 2013
January 6, 2014
DARGER ERRANTE YAVITZ & BLAU LLPAttorneys lor Dcfendant Union Carbide CorporationI 16 East 271h Sl. 12th FloorNew York. New York 10016P: 212.452.5300F: 212.452.530 I
Levy Phillips & Konigsberg. L.L.P.800 Third AvenueNew York. New York 10022P: 212.605.6200F: 212.605.6290
None.
I>isposition of the Court Below:Defendant Union Carbide Corporation ("Union Carbidc") moved lor summary judgment,pursuant to N.Y. C.P.L.R. § 3212. in the malleI' of Alice KeslenhallJll. (1.\ E\'ecli/rix of fheE\'!afe (?{ Frank Keslenhaul11 (Index No. 190421/2011). Union Carbide argued that PlaintiffAlice Kestenbaum. as Executrix lor 1he Estate of frank Kestenbaum ("PlaintifT'), lailed 10present evidence, as required under New York law. to mect her burden to raise a genuine issueof material fact that the alleged injury to decedent frank Kestenbaum C·Mr. Kestenbaum")was caused by a Union Carbide product or any product manulactured by another companythat incorporated as an ingredient a material supplied by Union Carbide. In its decisionhowever, despite the fact that Plainti fT did not dispute this, the Court held that ··there is enoughto question UCCs position," such that the Union Carbide's Motion was denied.
Issucs to be Raised on APPC111:Given the absence of any triable issue of disputed material lact in the matter, did the Courterr in denying Union Carbide's Motion for Summary Judgment?
Defendant Union Carbide Corporation answers in the affirmative.
ATTORNEY'S CEI~TIFICATION
Thc undersigned hereby certifies that. to the best of the undersigned's knowledge,information. and belie!: formed alier a reasonublc in(lUiry under the circumstances, thepresentation of the within Pre-Argument Stutement and thc contentions herein is/arc notrrivolousas dcfined by ~2 N.Y.R.R. § 130-I.I(c).
Dated: January 15.2014New York, New York
By:
Respectfully submitted.
Jonat an KrombergKaren ullinaneDARGER ERRANTE YAVITZ & BLAU LLP116 East 27th Street. 121h floorNew York. New York 10016P: 212.452.5300F: 212.452.530 I
(·Olfl1.\'e1./<)r Dejenda11l Cnio11 ('"rhide ('0I1wrafiol1