NICHOLAS G. MACEK as Executor for the Estate of MILA MACEK and WIJNADA DEROO MACEK Plaintiff,
CBS CORPORATION, et al., Defendants. Index No. 190085/11
DECISION & ORDER
SHERRY KLEIN HEITLER, J.
Defendant Union Carbide Corporation ("UCC") moves pursuant to CPLR 3212 for summary judgment dismissing the complaint against it. For the reasons set forth below, the motion is denied.
Mila Macek was diagnosed with malignant pleural mesothelioma in June 2010. This action was commenced on March 4, 2011 to recover for personal injuries allegedly caused by Mr. Macek's exposure to asbestos-containing products. Mr. Macek died on July 30, 2011 at age 72. Prior to his death he provided deposition testimony concerning his alleged exposure as to which, in relevant part, he testified as having occurred between 1970 and 1977.
Mr. Macek emigrated to the United States from the Czech Republic in 1965. Although a professional artist, Mr. Macek testified that between 1968 and 1978 he spent as much as 70% of his time working in construction to supplement his income. As such, he spent time remodeling his own residences and other buildings in New York City and upstate New York. He testified that during such employment he was exposed to asbestos from various products including joint compound, and that in comparison to other brands of joint compound he used throughout the 1970s, he worked with Georgia Pacific ("GP") Ready-Mix brand 80% of the time. Mr. Macek testified that he would stir the GP Ready-Mix to an appropriate consistency and then apply it to sheetrock seams and nail holes. After the joint compound dried, Mr. Macek would sand it down. Generally, he used three coats of joint compound per seam, stopping after each coat to sand down the area. Mr. Macek testified that this process would create plumes of joint compound dust in the air around him which, because of his close proximity to the wall, nearly got in his nose and always dusted his clothing. Mr. Macek was also responsible for sweeping up the accumulated dust that had settled on the floor at the end of the day.
Mr. Andres Mannik, for whom Mr. Macek worked on assorted construction projects, also testified. Mr. Mannik testified that Mr. Macek periodically performed drywall and joint compound work for him in the late 1960s and early 1970s, during which time he estimated that he and Mr. Macek spent, in total, a year to a year and a half working with one another. One of the largest projects they worked on was the soundproofing of a 10, 000 to 20, 000 square foot television studio on 57th Street and 10th Avenue in New York City in or around 1975 that took four to six months to complete. Mr. Macek was responsible for the drywall and joint compound work associated with the erection of a curved wall, called a cyclorama, along the back of the studio. In Mr. Mannik's estimation, Mr. Macek and one other worker used 50 five-gallon buckets of joint compound during the construction of this 60-foot wide by 14 or 16-foot high wall. According to Mr. Mannik, GP Ready-Mix and U.S. Gypsum joint compounds were primarily used on the project, although National Gypsum Gold Bond would occasionally be substituted in if neither of the these two brands were available.
Between 1963 and 1985 UCC sold raw chrysotile asbestos fibers under the brand name "Calidria". One type of Calidria product line, known as "SG-210", was designed, marketed and sold for use in the manufacture of joint compound. It is undisputed that UCC sold SG-210 to GP and that SG-210 was integrated into GP's joint compound products. UCC contends, however, that it is entitled to summary judgment because it was one of at least three companies which supplied asbestos to GP during the relevant time period, and plaintiffs cannot show that the GP joint compound to which Mr. Macek was allegedly exposed contained SG-210 Calidria as opposed to another form of asbestos. UCC further asserts that it had no duty to warn Mr. Macek of the dangers associated with Calidria because it provided adequate warnings to GP.
Plaintiffs argue that all asbestos-containing joint compound manufactured by GP in the northeastern United States during the relevant time period necessarily contained SG-210 Calidria asbestos and point out that a strike by Canadian asbestos miners and millers in 1975 disrupted the normal supply chain of asbestos to the U.S. such that UCC became the sole supplier of asbestos to the entire United States during that year. Plaintiffs claim further that all formulas of GP Ready Mix manufactured in the northeast in 1975 contained Calidria. As a result plaintiffs submit that, at the least, any joint compound made in the U.S. in 1975 had to have contained Calidria asbestos and that Mr. Macek was therefore necessarily exposed to Calidria that same year while working with GP joint compound in the construction of the television studio on 57th Street and 10th Avenue in New York City. Plaintiffs assert that UCC had a duty to warn of the hazards associated with asbestos and that the adequacy of any warnings provided by UCC to GP in this regard is a question of material fact that must be decided by a jury.
Summary judgement is a drastic remedy that must not be granted if there is any doubt about the existence of a triable issue of fact. Tronlone v Lac d'Aminante du Quebec, Ltee, 297 A.D.2d 528, 528-529 (1st Dept 1995). In asbestos-related litigation, once the moving defendant has made a prima facie showing of entitlement to judgment as a matter of law, the plaintiff must then demonstrate that there was actual exposure to asbestos fibers released from the defendant's product. Cawein v Flintkote Co., 203 A.D.2d 105, 106 (1st Dept 1994). In this regard, it is sufficient for the Plaintiff to show facts and conditions from which the defendant's liability may be reasonably inferred. Reidv Georgia Pacific Corp., 212 A.D.2d 462, 463 (1st Dept 1995). All reasonable inferences should be resolved in the plaintiffs favor. Dauman Displays, Inc. v Masturzo, 168 A.D.2d 204, 205 (1st Dept 1990). The identity of a manufacturer of a defective product may be established by circumstantial evidence but such evidence cannot be speculative or conjectural. See Healey v Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601 (1996).
I. Calidria Content
UCC argues that plaintiffs' claims against it are speculative insofar as plaintiffs cannot show whether the GP joint compound alleged to have caused Mr. Macek's injuries contained SG-210 Calidria or the products of other raw asbestos suppliers that GP relied upon, such as Johns Manville and Phillip Carey. UCC asserts that plaintiffs can only show a "mere possibility based upon speculation" that the GP joint compound used by Mr. Macek contained Calidria (Decicco's Affirmation in Support of Motion for Summary Judgement dated October 18, 2012, ¶¶ 8, 50).
Plaintiffs assert that the GP joint compound to which Mr. Macek was exposed necessarily contained Calidria because UCC was the exclusive supplier of asbestos to GP's Akron, New York manufacturing facility which supplied the entire northeastern United States, including New York where Mr. Macek was working, during the relevant time period. Plaintiffs rely on the 2006 deposition testimony of Charles W. Lehnert, a GP corporate representative who testified in a case venued in Harris County, Texas as the most knowledgeable person concerning GP's formulations of asbestos-containing joint compounds. During that deposition Mr. Lehnert confirmed a 2003 statement that all formulations of GP's joint compound manufactured at the Akron plant between September 1970 and May 1977 contained SG-210 Calidria, except the asbestos-free formulations first made available to the public in 1976. According to Mr. ...