Opinion
Index No. 813266/2021 Motion 005
11-29-2022
In Re: ASBESTOS LITIGATION EIGHTH JUDICIAL DISTRICT v. 84 LUMBER COMPANY, et al., Defendants. CRAIG SCHREINER and JANET LOUISE RICE, Plaintiffs,
John D. Burbridge, Esq. Clyde & Co. U.S. LLP Attorneys for Defendant and Mavant Hedman Resources Limited Attorneys for Plaintiffs in Opposition to the Motion for Summary Judgment Michael Macrides, Esq. & Seth A. Dymond, Esq. Belluck & Fox, LLP Attorneys for Plaintiffs Craig Schreiner and Janet Louise Rice
Unpublished Opinion
John D. Burbridge, Esq. Clyde & Co. U.S. LLP Attorneys for Defendant and Mavant Hedman Resources Limited
Attorneys for Plaintiffs in Opposition to the Motion for Summary Judgment Michael Macrides, Esq. & Seth A. Dymond, Esq. Belluck & Fox, LLP Attorneys for Plaintiffs Craig Schreiner and Janet Louise Rice
DECISION & ORDER
EDWARD A. PACE, JUDGE
Motion made by Hedman Resources Limited for Summary Judgment
In writing this Decision &Order, the documents attached hereto as an appendix were reviewed and after hearing oral argument on October 17, 2022 made by John D. Burbridge, Esq. on behalf of the moving defendant Hedman Resources Limited requesting summary judgment, and Seth A. Dymond, Esq. for Plaintiffs in opposition to said motion, Hedman Resources Limited's motion is granted in part and denied in part.
Introduction
Defendant, Hedman Resources Limited ("Hedman"), by and through its attorneys, Clyde & Co. U.S. LLP, moves this Court for an Order, pursuant to CPLR § 3212, granting Hedman summary judgment and dismissing the claims of the plaintiffs, Craig Schreiner and Janet Louise Rice, and all cross-claims against Hedman, and for such other and further relief as this Court may deem just, proper and equitable.
Plaintiffs, Craig Schreiner and Janet Louise Rice ("Plaintiff "or "Schreiner") and Janet Louise Rice (collectively, the "Plaintiffs"), oppose Defendant's motion and allege that there are material liability issues of fact involving Schreiner's exposure to asbestos fibers while he was employed at Durez Plastics ("Durez"), a division of Hooker Chemical Corporation ("Hooker Chemical "), which is now known as Occidental Chemical Corporation ("Occidental") in North Tonawanda, New York.
Alleged Facts
Plaintiffs allege the following facts:
The plaintiff Craig Schreiner worked at the Durez plant on Walck Road in North Tonawanda, New York in the summer of 1974. Mr. Schreiner was employed as a "summer laborer", initially in the "resin" department before spending approximately a month each in the "varnish" and "compound" departments.
Schreiner worked in the compound department at Durez from mid-July to mid-August where he helped fill in 50-pound bags of ground up phenolic molding compound and sewed and sealed them shut.
He testified that he knew the molding compound that he bagged were asbestos containing materials because it was commonly used in plastic materials and that asbestos was "widely used in a lot of different industries", including Durez (NYSCEF Doc. No. 181 Exh A at 117). Plaintiff claims that he was later trained to identify asbestos materials including molding compounds.
Schreiner testified that "there was a lot of dust in the air" in the compound department from his use of the bagging machine (Exh A at 122). He testified that "the compound area was particularly dusty because the machine where you bagged [...] the dust would come out of the bag. I recall it was pretty dusty. It was very dusty there." (EXH B at 37) Plaintiff recalled workers using mixers in the compound area when he was present and that as a laborer, it was his responsibility to sweep up his workspaces, including the compound areas, daily. The asbestos-laden dust was "light color," meaning white or gray (Exh A at 123). However, Plaintiff was unable to identify the suppliers of the asbestos-containing materials used in the production of the molding compounds at Durez.
Mr. Schreiner worked at Durez with coworkers, supervisors, and foremen. One of the foremen that worked as a "summer relief foreman" at the North Tonawanda, New York plant was Mr. Benedict Viglietta (Exh C at 115, 111-20, 163-64; Exh E at 25-26, 29-31). Mr. Viglietta worked in the molding compound portions of the plant during roughly half of his employment. Plaintiff avers that although he could not remember Mr. Viglietta, upon his (Schreiner's) information and belief, he (Mr. Viglietta) was Mr. Schreiner's boss at Durez while Mr. Schreiner worked there during the summer of 1974.
Benedict Viglietta was deposed in relation to his own asbestos-related lawsuit (see Exhibits C-D - Excerpts of discovery and de bene esse videotaped deposition transcripts). Mr. Viglietta monitored and tested the molding compound as it was being manufactured. He worked alongside the machinery where the product was mixed and personally observed the constituent ingredients that were used to make the molding compounds. He was familiar with suppliers of raw materials used in the compounds. Mr. Viglietta identified Hedman as one of only two suppliers of bags of raw fibers that were used to make the molding compounds at Durez. Mr. Viglietta testified that Hedman "was written on the side of the bags" of asbestos fibers (Exh C at 271, 276). Mr. Viglietta stated that he personally observed Hedman asbestos fiber being poured into a mixer in his vicinity "many times" (Exh C at 276). The asbestos -containing raw materials, including Hedman, were gray in color and "fine" in texture (Exh C at 125, 167 - 68, 277). Mr. Viglietta testified that he regularly went into the packaging department where the finished molding compound was bagged for shipment where he found that "even the finished molding compound was to some degree dusty." (Exh C at 136 - 37, 267, 279; Exh D at 37-38).
Plaintiff alleges that defendant has admitted that it supplied hundreds of tons of "Hedmanite" fibers to Durez and it has produced a sales summary entitled "Hedman Minds Asbestos Sales to Durez Plastics" (see Exh E) and that this record shows that Hedman provided nearly 1,600 tons of fibers to Durez during Mr. Schreiner's employment between June and August 1974. (Exh E). Mr. Viglietta stated that the Hedman fibers used in the production of the molding compound were comprised of asbestos.
In its motion for summary judgment in Viglietta, Defendant allegedly conceded that "Hedmanite was not raw asbestos, but it contained about 15 -20% chrysotile asbestos." (Exh F at 10; Exh N). Plaintiff alleges that there was more than 300 tons of raw chrysotile asbestos in Defendant's Hedmanite fiber in the months that Mr. Schreiner worked at Durez.
The Defendant alleges the following facts:
Mr. Schreiner worked in the compound department at Durez from July 15, 1974 to August 11, 1974. He did not recall working personally with any raw material that was used to make phenolic molding compound nor did he recall seeing the mixers and what they did.
Defendant alleges that Plaintiffs offer no evidence to suggest that any of the finished molding compounds in pellet form contained Hedman's fiber. Durez records produced in this litigation show that at least six different entities supplied Durez with raw fiber.
Plaintiffs did not disclose Mr. Viglietta as a product identification witness in this action. Mr. Schreiner did not know Mr. Viglietta and there is no testimony offered from Mr. Viglietta which shows that he knew Mr. Schreiner or that they ever worked together. They both worked at the facility in the summer of 1974, and they both worked in the compound department, but there is no evidence that they worked in the same building or that they worked on the same manufacturing processes within the compound department.
Hedman does not deny that it supplied fiber to Durez but does deny that Plaintiffs can establish that it was reasonably probable that Mr. Schreiner was exposed to Hedman's fiber. The Defendant alleges that the Plaintiffs have presented absolutely no testimonial or documentary evidence identifying a Hedman product as having been contemporaneously present at Durez or that the product somehow contributed to Schreiner's alleged asbestos exposure.
Product ID Analysis
Under New York law, plaintiff must prove that the defendant's conduct was a "cause-in-fact of the injury." Hamilton v. Beretta U.S. A. Corp., 96 N.Y.2d 222, 240 (2001). "[D]ifficulty in proving precisely which manufacturer caused any particular plaintiff's injuries" does not eliminate this requirement. Id. at 241; see also Healey v. Firestone Tire and Rubber Co., 87 N.Y.2d 596, 601 - 02 (1996) (plaintiff must show that it is "reasonably probable, not merely possible or evenly balanced, that the defendant was the source of the offending product.") (Citations omitted).
To prove liability against a defendant, the plaintiff must establish, through admissible evidence, a reasonable inference that plaintiff was exposed to asbestos-containing products manufactured or sold by defendant, and that it was more likely than not that this exposure was a substantial factor in causing plaintiff's injury. See Bernhard v. Cybex Int'l, Inc., 89 A.D.3d 1554 (4th Dep't 2011).
In determining whether a reasonable inference regarding a plaintiff's alleged exposure can be made, New York case law takes into account the product, the alleged method of exposure, and the circumstances surrounding the exposure. See Cawein v. Flintkote Co., 203 A.D.2d 105 (1st Dep't 1994). A reasonable inference in favor of a plaintiff is appropriate where there is a unity of time, space, and circumstance surrounding the plaintiff's alleged exposure to a specific asbestos containing product.
It is the opinion of this Court that the testimony of the Plaintiff thus far, together with Benedict Viglietta's prior testimony and Defendant's prior concessions and admissions, are sufficient to create a "reasonable inference" that Mr. Schreiner was exposed to asbestos from raw materials supplied to the Durez plant by Defendant requiring a denial of Defendant's motion for summary judgment. See Root v. Eastern Refractories Co. Inc., 13 A.D.3d 1187 (4th Dep't, 2004); Matter of Eighth Judicial Dist. Asbestos Litigation [Heckel v. Amatex Corp.]. 269 A.D.2d 749, 750 (4th Dep't, 2000); Oken v. A.C. & S., Inc., 7 A.D.3d 285 (1stDep't, 2004).
Mr. Schreiner's inability to identify the suppliers of the raw materials that allegedly exposed him to asbestos while he worked in the area where finished product was bagged, does not require dismissal of his action. See Berkowitz v. A.C. & S., Inc., 288 A.D.2d 148 (1st Dep't 2001); In re NYC Asbestos Litig. [Watts], 2015 WL 1969757 (Sup. Ct., NY Cty. 2014); Thaut v. A.O. Smith Water Products, 2010 WL 2984407 (Sup. Ct., NY Cty. 2010).
This Court examines the totality of Plaintiffs' evidence in determining whether a reasonable inference of exposure exists. E.g., Foster v. The Nash Engineering Company, (Sup. Ct., Monroe Cty., Feb. 28, 2018). There are several other courts presiding over asbestos dockets that denied summary judgment to suppliers of raw materials to manufacturing plants, under similar circumstances to the present case, where Plaintiffs could not identify the asbestos containing material suppliers. Darcangelis v 84 Lumber Corporation, et al. [Jaquays Mining Corporation], (Sup. Ct., Wayne Cty., Index No. 2013/75248) (Doyle, J.) (summary judgment unwarranted based on coworker testimony and chart "identif[ying] Jaquays as a supplier of raw asbestos fibers to Garlock in 1975 and 1976."); Eccleston v Asbestos Corporation Limited, et al., (Sup. Ct., Albany Cty., Index No. A00077/2014) (summary judgment unwarranted where invoices established that movant was a supplier of raw asbestos to Armstrong plant, despite plaintiff's inability to identify defendant); cf. Beals v Asbestos Corporation Limited, et al [Meyers Chemicals], (Sup. Ct. Erie Cty., Index No. I 2001-1537) (Lane, J.) (summary judgment denied to unidentified sales agent to Durez resin department).
Hedman's Motion for Summary Judgment on the Issue of Causation
The defendant in its reply memorandum of law in further support of Hedman Resources Limited's motion for summary judgment NYSCEF Doc. No. 203 dated October 14, 2022 raised for the first time the issue of causation. The court in Jacobson v. Leemilts Petroleum, Inc., 101 A.D.3d 1599,1560 (4th Dep't 2012) citing Dipizio v. Dipizio, 81 A.D.3d 1369, 1370 (4th Dep't 2011) stated "[l]t is well settled that contentions raised for the first time in reply papers are not properly before the court." See also, In re Eighth Judicial Dist. Asbestos Litigation, 106 A.D.3d 1453, 1455 (4th Dep't 2013).
Moreover, Defendant did not submit expert testimony in support of its motion. In, Killian v A.C. and S., Inc., 207 A.D.3d 414 (2022) summary judgment was granted to Defendant when Defendant proffered its expert's opinion of cumulative-lifetime-exposure-calculations concluded that Plaintiff's decedent was exposed, if at all, to asbestos at an insufficient level to cause cancer and Plaintiff offered no expert to counter Defendant's expert's opinion.
In the present case, Defendant alleges that Plaintiff cannot proffer an expert supported adequate foundation of specific causation. However, Defendant does not offer any expert opinion on specific causation. Defendant's allegation alone, without expert-opinion-support, does not meet Defendant's prima facie burden on specific causation necessary to shift the burden to Plaintiff to present appropriate expert-supported-specific-causation-opinion raising material issues of fact to defeat Defendant's summary judgment motion.
Punitive Damages
The Plaintiffs do not oppose the Defendant's motion for a dismissal of Plaintiff's cause of action for punitive damages.
In accordance with this Decision, it is hereby:
ORDERED, Hedman Resources Limited's motion for an order dismissing Plaintiffs' Cause of Action for punitive damages is GRANTED, and it is further
ORDERED, that Hedman Resources Limited's motion for an order granting its summary judgment and that Plaintiffs' claims and all cross-claims against Hedman be dismissed is DENIED.