FILED: NEW YORK COUNTY CLERK 02/24/2014 INDEX NO /2013 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 02/24/2014

Transcription

1 FILED: NEW YORK COUNTY CLERK 02/24/2014 INDEX NO /2013 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 02/24/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NEW YORK CITY ASBESTOS LITIGATION IVAN SWEBERG and LARAINE SWEBERG, - against - Plaintiff(s), ABB, INC., as successor in interest to ITE CIRCUIT BREAKERS, INC., et al., Defendants. NYCAL Hon. Sherry K. Heitler Index No /2013 MEMORANDUM OF LAW IN SUPPORT OF UNION CARBIDE CORPORATION S MOTION FOR SUMMARY JUDGMENT DARGER ERRANTE YAVITZ & BLAU LLP 116 East 27th Street, 12th Floor New York, New York Attorneys for Union Carbide Corporation Jonathan B. Kromberg Natalie A. Powers

2 TABLE OF CONTENTS PRELIMINARY STATEMENT... 1 STATEMENT OF FACTS... 2 ARGUMENT... 2 I. This Court Recently Decided These Exact Issues in Union Carbide s Favor on Remarkably Similar Facts... 2 II. The Summary Judgment Standard... 4 III. Union Carbide Has Met Its Burden on Summary Judgment... 5 IV. Plaintiffs Cannot Meet Their Burden on Summary Judgment... 6 Plaintiffs Cannot Show Mr. Sweberg Was Exposed to Any Product Manufactured or Supplied by Union Carbide... 8 Under New York Law, to Survive Summary Judgment, Plaintiffs Must Establish with Non-Speculative, Non-Conclusory Evidence that the Defendant Manufactured or Supplied the Allegedly Defective Product... 8 Thus, Where Plaintiffs Cannot Establish that the Defendant, Rather than Another Entity, Manufactured or Supplied the Allegedly Defective Product, Plaintiffs Cannot Meet Their Burden on Summary Judgment... 9 Accordingly, Where Plaintiffs Proferred Product Identification Consists Merely of a Generic Term Used to Describe a Product Manufactured or Supplied by Multiple Entities, Plaintiffs Cannot Meet Their Burden on Summary Judgment...10 Mr. Sweberg Did Not Know the Manufacturer of Any Bakelite Material He Allegedly Encountered and, Consistent with Industry Usage, His Use of the Term Bakelite Was a Generic Reference to All Phenolic Products, Regardless of Manufacturer...13 a) Mr. Sweberg did not know the manufacturer of any bakelite material he allegedly encountered and used the term bakelite generically rather than to refer to a specific manufacturer...13 b) Bakelite is a generic term in the plastics industry that refers to all phenolic products, without regard to manufacturer...17

3 Moreover, Numerous Companies Manufactured Phenolic Molding Compounds Identical to Union Carbide s Bakelite Phenolic Molding Compound and Also Referred to as Bakelite...21 Thus, Plaintiffs Cannot Establish that Union Carbide, Rather than One of the Numerous other Companies that Manufactured Phenolic Molding Compounds Generically Referred to as Bakelite, Was the Manufacturer or Supplier of Any Bakelite Material Allegedly Encountered by Mr. Sweberg...21 Plaintiffs Cannot Show Mr. Sweberg Was Exposed to Asbestos from Any Product Manufactured or Supplied by Union Carbide...22 Under New York Law, to Survive Summary Judgment, Plaintiffs Must Show Exposure to Asbestos from the Defendant s Product...22 Thus, Where the Defendant Manufactured Both Asbestos-Free and Asbestos-Containing Versions of the Product at Issue, Plaintiffs Cannot Meet Their Burden on Summary Judgment...22 Moreover, a Plaintiff s Common Knowledge Is Insufficient to Establish that a Product Contained Asbestos...25 Union Carbide Manufactured Both Asbestos-Free and Asbestos-Containing Phenolic Molding Compounds...25 Mr. Sweberg Had No Personal Knowledge that Any Bakelite Material He Allegedly Encountered Contained Asbestos, and His Belief that Such Bakelite Material Contained Asbestos Was Based on Common Knowledge...26 Thus, Plaintiffs Cannot Establish that Any Bakelite Material Allegedly Encountered by Mr. Sweberg Contained Asbestos...28 CONCLUSION...29 ii

4 TABLE OF AUTHORITIES Cases Abulhasan v. Uniroyal-Goodrich Tire Co. 14 A.D.3d 900 (3d Dep t 2005)... 8, 10 Andre v. Pomeroy 35 N.Y.2d 361 (1974)... 4 Arsenault v. A.C. and S., Inc. (in re NYCAL) Index No /00 (Sup. Ct. N.Y. County, June 13, 2001) (Freedman, J.)... 9, 11 Austin v. Al Zinda Co. No (Cir. Ct. Multomah County, Ore., Feb. 10, 2003) Axelrod v. Armistead 360 A.D.2d 593 (1st Dep t 1971)... 4 Ben Strauss Indus., Inc. v. City of New York 90 A.D.2d 751 (1st Dep t 1982)... 6 Blake v. Gardino 35 A.D.2d 1022 (3d Dep t 1970)... 4 Brown v. Elm Plumbing Supply, Ltd. 271 A.D.2d 469 (2d Dep t 2000)... 8, 10 Cawein v. Flintkote Co. 203 A.D.2d 105 (1st Dep t 1994) Celotex Corp. v Catrett 477 US 317 (1986)... 13, 22 Cisler v. A.O. Smith et al., (in re NYCAL) Index No: /2012 (Sup. Ct. N.Y. County, Aug. 8, 2013) (Heitler, J.)... 1, 2, 3, 9, 10, 11, 12, 21, 24 Comeau v. W.R. Grace & Co. (in re NYCAL) 216 A.D.2d 79 (1st Dep t 1995)... 5, 8 Creech v. AC&S, Inc. No SEA (Wash. Super. Ct., Jan. 9, 2003) D Ulisse v. Amchem Prods., Inc. (in re NYCAL) Index No /2004 (Sup. Ct. N.Y. County, Feb. 6, 2006) (Freedman, J.... 9, 11 iii

5 D'Amico v. Mfrs. Hanover Trust Co. 173 A.D.2d 263 (1st Dep t 1991)... 7, 8, 9 Diel v. Flintkote Co. 204 A.D.2d 53 (1st Dep t 1994) Finazzo v. A.O. Smith Water Prods. Co. (in re NYCAL) Index No /2011 (Sup. Ct. N.Y. County, Dec. 19, 2011) (Heitler, J.) Frenchman v. Queller, Fisher, Dienst, Serrins, Washor & Kool LLP 24 Misc.3d 486 (Sup. Ct. N.Y. County 2009) (Edmead, J.)... 7 Harris v. Owens-Corning Fiberglas Corp. 102 F.3d 1429 (7th Cir. 1996)... 7, 12 Healey v. Firestone Tire & Rubber Co. 87 N.Y.2d 596 (1996)... 3, 7, 8, 9, 23 Hirsch v. S. Berger Import & Mfg. Corp. 67 A.D.2d 30 (1st Dep t 1979)... 6 Holmes v. AB Volvo (in re NYCAL) Index No /2012 (Sup. Ct. N.Y. County, Dec. 24, 2013) (Heitler, J.)... 9, 11 Hyde v. Owens-Corning Fiberglas Corp. 751 F. Supp. 832 (D. Ariz. 1990) Johnson v. AC&S, Inc. No (Cir. Ct. Multomah County, Ore., Feb. 10, 2003) Kelly v. Johns-Manville 590 F.Supp (E.D. Pa. 1984) Kramer v. Harris 9 A.D.2d 282 (1st Dep t 1959)... 7 Liberman v. A.O. Smith Water Products Co., (in re NYCAL) (Heitler, J.) Index No: /2012 (Sup. Ct. N.Y. County, May 1, 2013)... 1, 2, 3, 4, 9, 10, 11, 12, 24 Miller v. Am. Foreign S.S. Corp. No /1996, 1999 WL (Sup. Ct. N.Y. County 1999)... 9 Monaco v. Camie-Campbell, Inc. 256 A.D.2d 1214 (4th Dep t 1998), appeal dismissed, leave to appeal denied, 93 N.Y.S.2d 887 (1999)... 9 Oates v. Marino 106 A.D.2d , 7 iv

6 Perdicaro v. A.O. Smith Water Products (in re NYCAL) 52 A.D.3d 300 (1st Dep t 2008)... 22, 23 Pirrelli v. Long Island R.R. 226 A.D.2d 166 (1st Dep t 1996)... 4 Reid v. Georgia-Pacific Corp. 212 A.D.2d 462 (1st Dep t 1995)... 5 Rotuba Extruders, Inc. v. Ceppos 46 N.Y.2d 223 (1978)... 6 Saccomano v. A.C. & S., Inc. (In re NYCAL) Index No /2006 (Sup. Ct. N.Y. County, July 12, 2007) (Freedman, J.)... 9, 11, 24 Schiraldi v. U.S. Mineral Products 194 A.D.2d 482 (1st Dep t 1993)... 5 Schulz v. Celotex Corp. 942 F.2d 204 (4th Cir. 1991) Scott v. City of New York 591 F.Supp.2d 554 (S.D.N.Y. 2008) Shumway v. United Parcel Service 118 F.3d 60 (2d Cir. 1997) Sosa v. Joyce Beverages, Inc. 159 A.D.2d 335 (1st Dep t 1990)... 7, 8 Stukas v. Streiter 83 A.D.3d 18 (2d Dep t 2011)... 5 Williams v. AC&S, Inc. (in re NYCAL) No /2001 (N.Y. Sup. Ct. June 24, 2010) (Heitler, J.) Young v. A.P. Green Indus., Inc. No (Sup. Ct. San Francisco County, Dec. 13, 2002) Zuckerman v. City of New York 49 N.Y.2d 557 (1980)... 5, 6, 7, 8 Statutes CPLR 3212(b)... 4 v

7 PRELIMINARY STATEMENT Defendant Union Carbide Corporation ( Union Carbide or UCC ), as enumerated in the February 24, 2014 Affirmation of Natalie A. Powers submitted herewith (the Powers Affirmation or Powers Aff. ), submits this memorandum of law in support of its motion for summary judgment in the action brought against it by Plaintiffs Ivan Sweberg and Laraine Sweberg ( Plaintiffs ). Union Carbide is entitled to summary judgment in this case on several distinct grounds: (1) it is undisputed that Union Carbide never manufactured any of the finished products Mr. Sweberg identified, and Mr. Sweberg neither worked for Union Carbide nor was he exposed to any asbestos at a Union Carbide facility; (2) Plaintiffs cannot show that any bakelite material allegedly encountered by Mr. Sweberg contained as an ingredient a material manufactured or supplied by Union Carbide; and (3) even assuming arguendo that Plaintiffs could show that any bakelite material allegedly encountered by Mr. Sweberg contained as an ingredient a material manufactured or supplied by Union Carbide, Plaintiffs could not show that such bakelite material contained asbestos. Thus, Union Carbide has met its burden on summary judgment, and Plaintiffs have failed to meet their burden to raise a triable issue of fact. Significantly, this Court recently decided these exact issues in Union Carbide s favor on remarkably similar facts in Cisler v. A.O. Smith et al., (in re NYCAL), Index No: /2012 (Sup. Ct. N.Y. County, Aug. 8, 2013) (attached hereto as Exhibit A) and Liberman v. A.O. Smith Water Products Co., (in re NYCAL), Index No: /2012 (Sup. Ct. N.Y. County, May 1, 2013) (attached hereto as Exhibit B). For the exact same reasons, as discussed further below, Union Carbide is also entitled to summary judgment in the instant

8 action. STATEMENT OF FACTS A complete recitation of the relevant facts is provided in the accompanying Powers Affirmation and the exhibits attached thereto, which are incorporated herein by reference. ARGUMENT THE COURT SHOULD GRANT UNION CARBIDE SUMMARY JUDGMENT BECAUSE PLAINTIFFS HAVE FAILED TO RAISE A GENUINE ISSUE OF FACT THAT THE ALLEGED INJURY WAS CAUSED BY EXPOSURE TO ASBESTOS OR ASBESTOS-CONTAINING PRODUCTS SUPPLIED BY UNION CARBIDE This Court recently decided these exact issues in Union Carbide s favor on remarkably similar facts in Cisler v. A.O. Smith et al., (in re NYCAL), Index No: /2012 (Sup. Ct. N.Y. County, Aug. 8, 2013) (attached hereto as Exhibit A) and Liberman v. A.O. Smith Water Products Co., (in re NYCAL), Index No: /2012 (Sup. Ct. N.Y. County, May 1, 2013) (attached hereto as Exhibit B). I. THIS COURT RECENTLY DECIDED THESE EXACT ISSUES IN UNION CARBIDE S FAVOR ON REMARKABLY SIMILAR FACTS In the recent matter of Cisler v. A.O. Smith, (In re NYCAL), Index No: /12 (Sup. Ct. N.Y. County, Aug. 8, 2013) (attached hereto as Exhibit A), this Court granted summary judgment for Union Carbide where plaintiff alleged coming into contact with a hard, plastic material he identified as bakelite, which was incorporated into electrical equipment, but it [was] clear from his deposition testimony that he used this term generically and not with reference to UCC s trademarked product and the evidence showed that the electrical equipment manufacturers at issue had multiple suppliers of asbestos. See Ex. A at 2-4. One electrical equipment manufacturer had at least four dozen plants in North America, but evidence submitted by plaintiff showed only that the manufacturer s Kentucky plant 2

9 manufactured asbestos-containing products, and not that such products were supplied to New York region. See id. at 4. Moreover, the manufacturer s interrogatory responses identified seven different suppliers of phenolic molding compounds, and [n]otably, UCC was not among them. Id. at 4. The evidence submitted by Plaintiffs as to another electrical equipment manufacturer was an unidentified, incomplete transcript of unknown origin which purports to show that [the manufacturer s] Hampton, South Carolina plant purchased asbestos solely from UCC between approximately 1967 and 1972, and this Court held that [n]ot only does this testimony lack context, it fails to establish that such asbestos was incorporated into phenolic molding compound or that [the manufacturer s] South Carolina plant supplied the New York region. Id. at 4. Thus, this Court granted summary judgment in Union Carbide s favor, ruling that plaintiffs claims against UCC are speculative.... Id. (citing Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596 (1996)). Consistently, in the recent matter of Liberman v. A.O. Smith Water Products Co., (in re NYCAL), Index No: /2012 (Sup. Ct. N.Y. County, May 1, 2013) (attached hereto as Exhibit B), this Court granted summary judgment for Union Carbide where plaintiff alleged exposure to phenolic molding compounds incorporated into electrical equipment, because plaintiff could not establish that any phenolic molding compounds to which plaintiff had allegedly been exposed were supplied by Union Carbide. The electrical equipment manufacturer had at least four dozen plants in North America, but evidence submitted by plaintiff showed only that the manufacturer s Kentucky plant manufactured asbestoscontaining products, and not that such products were supplied to New York region. See Ex. B at 4. Furthermore, the electrical equipment manufacturer s interrogatory responses identified seven different suppliers, and [n]otably, UCC was not among the suppliers listed 3

10 therein. Id. This Court thus held that Plaintiffs assertions... that Mr. Liberman was exposed to UCC s asbestos are unsupported by the record. Id. at 4-5. II. THE SUMMARY JUDGMENT STANDARD The New York Civil Practice Law and Rules provide, in pertinent part, that a motion for summary judgment shall 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. CPLR 3212(b). Summary judgment should be granted without hesitation in negligence actions where there is no merit to the cause of action. Blake v. Gardino, 35 A.D.2d 1022, 1023 (3d Dep t 1970). The Court of Appeals has urged courts to grant summary judgment because too many meritless claims have overburdened the courts: [W]hen there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated. Negligence cases, supplying the bulk of the Trial Calendar, are not exempt from this general policy.... CPLR 3212 now permits summary judgment in any action and that includes personal injury suits. Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974) (citation omitted); see also Axelrod v. Armistead, 360 A.D.2d 593, 593 (1st Dep t 1971) (summary judgment in tort actions is a proper remedy to eliminate unnecessary expense to the litigants and the public where no issue of material fact is presented to justify a trial ). A party seeking summary judgment must make an initial prima facie showing that it is entitled to judgment as a matter of law, tendering sufficient evidence to eliminate issues of fact from the case. See Pirrelli v. Long Island R.R., 226 A.D.2d 166 (1st Dep t 1996). Then, where the moving party has demonstrated its entitlement to summary judgment, the 4

11 party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do. Zuckerman v. City of New York, 49 N.Y.2d 557, 560 (1980); see also Stukas v. Streiter, 83 A.D.3d 18, 25 (2d Dep t 2011) (holding that 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 ). III. UNION CARBIDE HAS MET ITS BURDEN ON SUMMARY JUDGMENT In an asbestos action where the defendant is the moving party, it bears the burden of making a prima facie showing that its products could not have contributed to the causation of plaintiff s injuries. See Comeau v. W.R. Grace & Co. (in re NYCAL), 216 A.D.2d 79, 80 (1st Dep t 1995) (citing Reid v. Georgia-Pacific Corp., 212 A.D.2d 462 (1st Dep t 1995)). New York courts hold that the absence of proof of a plaintiff's exposure to the defendant's asbestos-containing products establishes the defendant's facial nonliability for plaintiff's injuries and shifts to plaintiff the burden of demonstrating by admissible evidence the existence of a factual issue requiring a trial of the action or of tendering an acceptable excuse for the failure to do so. See Schiraldi v. U.S. Mineral Products, 194 A.D.2d 482, 483 (1st Dep t 1993). Here, it is undisputed that Union Carbide never manufactured any of the finished products Mr. Sweberg identified, and Mr. Sweberg neither worked for Union Carbide nor was he exposed to any asbestos at a Union Carbide facility. See generally Exs. 7-8 to Powers Aff. Thus, the evidence produced, when viewed in the light most favorable to Plaintiffs, 5

12 establishes that there is no valid basis to hold Union Carbide liable for any of Plaintiffs allegations, and Union Carbide has met its burden on summary judgment. Accordingly, the burden shifts to Plaintiffs to present sufficient admissible evidence proving an issue of material fact to warrant a trial. As the following points will demonstrate, Plaintiffs cannot meet their burden. IV. PLAINTIFFS CANNOT MEET THEIR BURDEN ON SUMMARY JUDGMENT The Court of Appeals has emphasized the burden of the party opposing summary judgment to present admissible evidence sufficient to raise a material issue of fact: We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form... Zuckerman v City of New York, 49 N.Y.2d 557, 562 (1980) (citations omitted). New York courts have made clear that only genuine, triable issues of fact can survive summary judgment. See Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223 (1978) (holding only existence of bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat a motion for summary judgment); Oates v. Marino, 106 A.D.2d 289 (1st Dep t 1984) (holding a party opposing a motion for summary judgment is bound to lay bare his proofs and make an evidentiary showing that there exists genuine, triable issues of fact); Ben Strauss Indus., Inc. v. City of New York, 90 A.D.2d 751 (1st Dep t 1982) (granting summary judgment and holding that [a] shadowy semblance of an issue is not enough to defeat the motion ); Hirsch v. S. Berger Import & Mfg. Corp., 67 A.D.2d 30, 34 (1st Dep t 1979) (reversing denial of summary judgment where 6

13 factual issue plaintiff claimed prevented summary judgment was not genuine, but feigned, and there is in truth nothing to be tried ); Frenchman v. Queller, Fisher, Dienst, Serrins, Washor & Kool LLP, 24 Misc.3d 486 (Sup. Ct. N.Y. County 2009) (Edmead, J.) (granting summary judgment and holding that a summary judgment opponent must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist and the issue must be shown to be real, not feigned, since a sham or frivolous issue will not preclude summary relief ). Moreover, where an issue of fact is not only unresolved, but also unresolvable, summary judgment is warranted. D'Amico v. Mfrs. Hanover Trust Co., 173 A.D.2d 263, 267 (1st Dep t 1991). Furthermore, mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat summary judgment. Zuckerman, 49 N.Y.2d at 562 (citations omitted); accord Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 602 (1996) (holding [s]peculative or conjectural evidence of the manufacturer's identity is not enough ); Sosa v. Joyce Beverages, Inc., 159 A.D.2d 335, 337 (1st Dep t 1990) (holding motion for summary judgment may not be defeated merely by surmise, conjecture or suspicion, nor bald conclusory allegations ); Oates v. Marino, 106 A.D.2d 289, 291 (1st Dep t 1984) (holding that bare, conclusory allegations are insufficient to create genuine issues of fact ); Kramer v. Harris, 9 A.D.2d 282, 283 (1st Dep t 1959) (finding that an opposing party s tenuous effort at issue creation implemented by incredible conclusory facts and gross assertions... is not sufficient to defeat summary judgment ) (citations omitted). Here, as discussed, it is undisputed that Union Carbide never manufactured any of 7

14 the finished products Mr. Sweberg identified, and Mr. Sweberg neither worked for Union Carbide nor was he exposed to any asbestos at a Union Carbide facility. See generally Exs. 7-8 to Powers Aff. Instead, it is anticipated that Plaintiffs will oppose summary judgment with a series of unsubstantiated assumptions, speculation, and conjecture as to the mere possibility that the electrical equipment Mr. Sweberg allegedly encountered in his career contained asbestos-containing phenolic materials supplied by Union Carbide. For the reasons set forth below, these conclusory assumptions are insufficient to raise a genuine, triable issue of fact, and thus Plaintiffs cannot meet their burden to withstand summary judgment. PLAINTIFFS CANNOT SHOW MR. SWEBERG WAS EXPOSED TO ANY PRODUCT MANUFACTURED OR SUPPLIED BY UNION CARBIDE Under New York Law, to Survive Summary Judgment, Plaintiffs Must Establish with Non-Speculative, Non-Conclusory Evidence that the Defendant Manufactured or Supplied the Allegedly Defective Product The Court of Appeals, all four departments of the Appellate Division, and New York Supreme Courts have all held that to survive a motion for summary judgment, a plaintiff in a product liability case must establish by a preponderance of the evidence that it was the defendant who manufactured or supplied the allegedly defective product, and speculative or conjectural evidence or unsupported assertions are insufficient to establish the defendant s identity. See, e.g., Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596 (1996); Zuckerman v City of New York, 49 N.Y.2d 557 (1980); Sosa v. Joyce Beverages, Inc., 159 A.D.2d 335 (1st Dep t 1990); D'Amico v. Mfrs. Hanover Trust Co., 173 A.D.2d 263 (1st Dep't 1991); Comeau v. W.R. Grace & Co. (in re NYCAL), 216 A.D.2d 79 (1st Dep t 1995); Brown v. Elm Plumbing Supply, Ltd., 271 A.D.2d 469 (2d Dep t 2000); Abulhasan v. Uniroyal-Goodrich 8

15 Tire Co., 14 A.D.3d 900 (3d Dep t 2005); Monaco v. Camie-Campbell, Inc., 256 A.D.2d 1214 (4th Dep t 1998), appeal dismissed, leave to appeal denied, 93 N.Y.S.2d 887 (1999); Holmes v. AB Volvo (in re NYCAL), Index No /2012 (Sup. Ct. N.Y. County, Dec. 24, 2013) (Heitler, J.) (attached hereto as Exhibit C); Cisler v. A.O. Smith et al., (in re NYCAL), Index No: /2012 (Sup. Ct. N.Y. County, Aug. 8, 2013) (Heitler, J.) (attached hereto as Exhibit A); Liberman v. A.O. Smith Water Products Co., (in re NYCAL), Index No: /2012 (Sup. Ct. N.Y. County, May 1, 2013) (Heitler, J.) (attached hereto as Exhibit B); Saccomano v. A.C. & S., Inc. (In re NYCAL), Index No /2006 (Sup. Ct. N.Y. County, July 12, 2007) (Freedman, J.) (attached hereto as Exhibit D); D Ulisse v. Amchem Prods., Inc. (in re NYCAL), Index No /2004 (Sup. Ct. N.Y. County, Feb. 6, 2006) (Freedman, J.) (attached hereto as Exhibit E); Arsenault v. A.C. and S., Inc. (in re NYCAL), Index No /00 (Sup. Ct. N.Y. County, June 13, 2001) (Freedman, J.) (attached hereto as Exhibit F) Miller v. Am. Foreign S.S. Corp., No /1996, 1999 WL , at *5 (Sup. Ct. N.Y. County 1999). Thus, Where Plaintiffs Cannot Establish that the Defendant, Rather than Another Entity, Manufactured or Supplied the Allegedly Defective Product, Plaintiffs Cannot Meet Their Burden on Summary Judgment New York courts have consistently granted summary judgment where plaintiff cannot establish that the defendant, rather than another entity, manufactured or supplied the allegedly defective product. For example, the Court of Appeals has held that where uncontested evidence suggested at least six companies in addition to the defendant made the same type of indistinguishable product, summary judgment was an appropriate remedy as plaintiff had fail[ed] to raise a triable issue of fact on the identity of [defendant] as the manufacturer of the allegedly defective product. Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 663 (1996); see also D'Amico v. Mfrs. Hanover Trust Co., 173 A.D.2d 263, 266 9

16 (1st Dep t 1991) (reversing denial of summary judgment for defendant where there is no testimonial or documentary proof whatsoever that might permit a reasoned inference that [defendant], rather than [the other manufacturer], was the manufacturer of the [allegedly defective product] ); see also Brown v. Elm Plumbing Supply, Ltd., 271 A.D.2d 469 (2d Dep t 2000) (reversing the denial of summary judgment because plaintiff failed to establish that it is reasonably probable, not merely possible, that a defendant was the source of the offending product ); Abulhasan v. Uniroyal-Goodrich Tire Co., 14 A.D.3d 900 (3d Dep t 2005) (reversing denial of summary judgment, noting plaintiff was only able to show the possibility, rather than a probability, that [defendant] was the manufacturer of the subject tire, which is insufficient to raise a triable issue of fact ). Accordingly, Where Plaintiffs Proferred Product Identification Consists Merely of a Generic Term Used to Describe a Product Manufactured or Supplied by Multiple Entities, Plaintiffs Cannot Meet Their Burden on Summary Judgment In the recent matter of Cisler v. A.O. Smith, (In re NYCAL), Index No: /12 (Sup. Ct. N.Y. County, Aug. 8, 2013) (attached hereto as Exhibit A), this Court granted summary judgment for Union Carbide where plaintiff alleged coming into contact with a hard, plastic material he identified as bakelite, which was incorporated into electrical equipment, but it [was] clear from his deposition testimony that he used this term generically and not with reference to UCC s trademarked product and the evidence showed that the electrical equipment manufacturers at issue had multiple suppliers of asbestos. See Ex. A at 2-4; see also Liberman v. A.O. Smith Water Products Co., (in re NYCAL), Index No: /2012 (Sup. Ct. N.Y. County, May 1, 2013) (attached hereto as Exhibit B), (granting summary judgment for Union Carbide because plaintiff could not establish that any phenolic molding compounds incorporated into electrical equipment to which plaintiff was allegedly exposed 10

17 were supplied by Union Carbide as electrical equipment manufacturer s interrogatory responses identified seven different suppliers). Your Honor s rulings in Cisler and Liberman are consistent with other rulings from this Court granting summary judgment in favor of Union Carbide. See Holmes v. AB Volvo (in re NYCAL), Index No /2012 (Sup. Ct. N.Y. County, Dec. 24, 2013) (attached hereto as Exhibit C) (granting summary judgment for Union Carbide summary judgment on ground that [b]ecause UCC was only one of many suppliers of asbestos to Kentile, it is mere speculation to assume that the Kentile floor tiles Mr. Holmes worked with contained UCC s asbestos ); D Ulisse v. Amchem Prods., Inc. (in re NYCAL), Index No /2004 (Sup. Ct. N.Y. County, Feb. 6, 2006) (Freedman, J.) (attached hereto as Exhibit E) (granting summary judgment for Union Carbide where plaintiff claimed exposure to Chrysler brake products and submitted evidence Union Carbide was one of many suppliers of asbestos to Chrysler during the time in which the plaintiff alleged exposure, because the fact that Union Carbide was only one of many suppliers of raw asbestos to Chrysler was insufficient to defeat summary judgment); Arsenault v. A.C.&S., Inc. (in re NYCAL), Index No /00 (Sup. Ct. N.Y. County, June 13, 2001) (Freedman, J.) (attached hereto as Exhibit F) (granting summary judgment for defendant Union Carbide because Georgia-Pacific, not Union Carbide is the identified asbestos-containing product manufacturer in this case and fact that Georgia-Pacific purchased some asbestos from Union Carbide during this period is insufficient product identification since Georgia-Pacific also purchased asbestos products from Johns-Manville and Carey during this period ); see also Saccomano v. A.C. & S., Inc. (In re NYCAL), Index No /2006 (Sup. Ct. N.Y. County, July 12, 2007) (Freedman, J.) (attached hereto as Exhibit D) (granting summary judgment for defendant Kentile where 11

18 plaintiff identified three brands of floor tiles but failed to establish which of the three he actually worked around, and defendant manufactured both asbestos-containing and asbestos-free floor tiles) Moreover, in accordance with Your Honor s rulings in Cisler and Liberman, other jurisdictions have granted Union Carbide summary judgment where the plaintiff s only evidence was a generic reference to a bakelite product. See Austin v. Al Zinda Co., No (Cir. Ct. Multomah County, Ore., Feb. 10, 2003) (attached hereto as Exhibit G); Johnson v. AC&S, Inc., No (Cir. Ct. Multomah County, Ore., Feb. 10, 2003) (attached hereto as Exhibit H); Creech v. AC&S, Inc., No SEA, at p. 4-5 (Wash. Super. Ct., Jan. 9, 2003) (attached hereto as Exhibit I); Young v. A.P. Green Indus., Inc., No (Sup. Ct. San Francisco County, Dec. 13, 2002) (attached hereto as Exhibit J). Additionally, the Seventh Circuit upheld summary judgment for defendant Owens- Corning where plaintiffs witnesses could not distinguish the generic kaylo manufactured by any number of companies from Defendant OCF s Kaylo. Harris v. Owens-Corning Fiberglas Corp., 102 F.3d 1429, 1431 (7th Cir. 1996). The court noted that numerous other companies also manufactured asbestos-containing pipe insulation generically referred to as kaylo much like individuals often refer to generic tissue paper by the brand name kleenex. Id. The court thus upheld summary judgment, stating: [Plaintiff] bore the burden of identifying evidence sufficient to support an inference that her husband inhaled asbestos from OCF s kaylo, as opposed to other manufacturer s asbestos products. [Plaintiff] failed to meet that burden. Id. at 1434; see also Hyde v. Owens-Corning Fiberglas Corp., 751 F. Supp. 832, (D. Ariz. 1990) (granting summary judgment for defendant Owens-Corning despite plaintiff s testimony that he was exposed to Kaylo because both 12

19 Owens-Corning and at least one other manufacturer made Kaylo); Schulz v. Celotex Corp., 942 F.2d 204, 210 (4th Cir. 1991) (summary judgment appropriate where defendant submitted an affidavit stating that rock wool was a generic term referring to a type of insulation material that was manufactured by companies other than defendant); Kelly v. Johns-Manville, 590 F.Supp. 1089, 1101 (E.D. Pa. 1984) (summary judgment granted because a jury cannot conclude from plaintiff s identification of generic types of products alone that he has been exposed to a particular manufacturer s products. Permitting a jury to reach this conclusion is analogous to permitting a jury to conclude that because plaintiff was hit by a car, he was hit by a car manufactured by General Motors. ). Mr. Sweberg Did Not Know the Manufacturer of Any Bakelite Material He Allegedly Encountered and, Consistent with Industry Usage, His Use of the Term Bakelite Was a Generic Reference to All Phenolic Products, Regardless of Manufacturer a) Mr. Sweberg did not know the manufacturer of any bakelite material he allegedly encountered and used the term bakelite generically rather than to refer to a specific manufacturer Mr. Sweberg alleges that he was exposed to asbestos while working at various jobs as an electrician from 1962 to See generally Exs. 7-9 to Powers Aff. Mr. Sweberg alleged exposure to various types of allegedly asbestos-containing products, such as fire spray, floor tiles, sheetrock, ceiling tiles, boilers, pumps, valves, packing, wire, and electrical products and components. See generally id. Of the many different products and materials to which Mr. Sweberg alleged exposure, one was what he described as bakelite, which he allegedly encountered in electrical equipment, such as panel boxes, circuit breakers, disconnect switches, magnetic switches, and relays, which were manufactured by various entities. See generally id. 13

20 Mr. Sweberg did not know who manufactured any of this bakelite material, and he repeatedly confirmed that he was using the term bakelite generically rather than to refer to any specific manufacturer s product: Q. How is it you came to call it Bakelite? A. Good question. I don't know. Just like an industry name. A lot of names within the industry are used to describe certain products. My guess would be Bakelite was probably the name of a company that produced the first one. I don't know. Q. So because Bakelite might have been the company that created the first one, that word is used to describe anything used as an insulator in the industry? A. In that form and shape, yes. Q. In that form and shape and color, right? A. Yes. Q. So that was more like a generic term like Kleenex is to tissues? A. Yes. Ex. 7 to Powers Aff. at 170:5-23. Q. I know that you were an electrician for some time. During the course of your career, you also mentioned that you came into contact with this same material when you were a journeyman; is that correct? A. Yes..... Q. This was still the same product generically called Bakelite; is that correct? A. Yes. Id. at 170:24-172:2. Q. You're using the terminology Bakelite. Is this basically a hard, plastic type of piece? A. It was hard. It appeared -- it looked like plastic. Q. Whether it was actually Bakelite or a similar type of product, you don't know, do you? A. No. 14

21 Ex. 8 to Powers Aff. at 242: Id. at 320: Id. at 330:7-9. Id. at 377: Id. at 380: Q. Do you know who the manufacturer of that Bakelite material was that was between the metal board and the breaker? A. No, I don't. Q. You don't know the manufacturer of that Bakelite material in the back of the box, do you? A. No, I don't. Q. Just as before when you referred to it as Bakelite, you don't know who made it, you were just using that as a generic term that you used before to describe a hard plastic material; is that correct? A. That's correct. Q. Once again, your reference to this base, this hard plastic-like material as Bakelite is just a generic reference because it was used in conjunction with a heat-related electrical component? A. Yes. Q. You mentioned the bottom of the relay also you believe might have been made of Bakelite? A. Yes. Id. at 380:23-381:4. Q. Once again, you're using that generically; is that correct? A. That's correct. The inescapable conclusion that Mr. Sweberg was merely using the term bakelite to refer to a type of material in general (as opposed to referring to a specific manufacturer s product) is further confirmed by the fact that he repeatedly testified that he never saw any identifying information on the bakelite material itself, and he never saw any documents 15

22 or materials indicating any item contained Bakelite. Q. The word Bakelite wasn't on the boards, correct? A. No. Ex. 7 to Powers Aff. at 170:5-7. Id. at 172:3-7. Q. Once again, I just want to make sure the record is clear. As a journeyman, you didn't see any writing on the Bakelite material that we have been talking about? A. I don't recall any writing. Q. Did you see any sort of manuals or documents, drawings or specifications to indicate that the Murray circuit breakers contained Bakelite? A. No. Q. What about the Murray guts or the Murray panel, did anyone tell you that that product contained Bakelite? A. No. Q. Did you see any sort of manuals, any drawings, any specifications to indicate that the Murray panels or the guts contained Bakelite? A. No. Id. at 191:18-192:5. Q. But the word Bakelite itself never appeared on that circuit breaker itself, correct? A. No Ex. 8 to Powers Aff. at 230: Q. But you mentioned the word Bakelite. There was no materials or information that you received that told you that that item was made of Bakelite? A. No. Ex. 8 to Powers Aff. at 231: Q. I want to know something. With regard to anywhere on that box or that board itself, did the word Bakelite appear? A. No. 16

23 Id. at 377:4-10. Q. Did anyone tell you that it was made of Bakelite? A. No. Id. at 378:17-378:2. Id. at 379: Q. With regard to the magnetic switches, the word Bakelite didn't appear anywhere on the magnetic switch itself or on this board or the box; is that correct? A. That's correct. Q. With regard to the magnetic switches, you didn't see any literature or any information provided to you that indicated that that backboard was made of Bakelite, correct? A. That's correct. Q. On this square but round base, is there any writing on that thing? A. No. Q. You didn't see the word Bakelite anywhere on that thing? A. No. Thus, it is clear that Mr. Sweberg did not know who manufactured any of the bakelite component material he allegedly encountered; rather, he clearly used the term bakelite generically to refer to a type of plastic. b) Bakelite is a generic term in the plastics industry that refers to all phenolic products, without regard to manufacturer Union Carbide sold phenolic resins and phenolic molding compounds under the trade name Bakelite. See Ex. 9 to Powers Aff. at 2-3. Union Carbide never manufactured finished products from its phenolic resins or phenolic molding compounds. See id. at 4. For example, Union Carbide never manufactured finished electrical parts for sale from its phenolic resins or molding compounds. See id. Bakelite, however, is a generic term in the plastics industry, in much the same way 17

24 the term Kleenex is used to describe all facial tissue. See id. at 5, Ex. 10 to Powers Aff. at 6. In fact, it is quite common to refer to phenolics made by other manufacturers and the end products made from other manufacturer s phenolics as bakelite. Ex. 10 to Powers Aff. at 6. There are innumerable references in technical and popular literature establishing that bakelite is a generic name. For instance, in Plastic and Synthetic Rubbers, 1 the authors note: Bakelite became a household word in the years after the war and was applied indiscriminately to any material which looked as if it might be made of synthetic resin. Id. at 7. Likewise, the authors of Plastics 2 state: The first synthetic resinoids of this type were given the name Bakelite, and it is a tribute to the rapid expansion of these products that to the great mass of people all over the world they stand as a synonym for plastics. Id. at 8. Even the scientific community used the term bakelite generically, as evidenced by an article with the title The Performance of RPCs with Bakelite Electrodes of Various Resistivity under High Radiation Fluxes in the scientific journal Nuclear Instruments and Methods in Physics Research. Id. at 9. An advertisement in Modern Plastics, an industry publication that has been in press for decades, illustrates the generic use of the term bakelite. See id. at 10. The 1 A.J. Gait & E.G. Hancock, Plastics and Synthetic Rubbers (Pergamon Press, 1970). 2 V.E. Yarsley & E.G. Couzens, Plastics (Penguin Books, 1941). 18

25 advertisement dated July 1940 involves a manufacturing company, Barco, which describes equipment that can be used with the operation of Bakelite and Plastic Molding Presses. Id. From both an engineering and practical standpoint, this is certainly a generic use of the term bakelite, as it makes no sense that Barco would be selling equipment that could only be used with a Union Carbide product. Id. Rather, Barco is advertising equipment that can be used with phenolic materials generally, regardless of manufacturer, and calling it bakelite. Id. Additional examples of the term bakelite being used as a generic name appear in a McMaster-Carr catalog from See id. at 11. The catalog has been produced for decades and is a common industrial source for material and equipment purchasing. Id. The index of the recent catalog includes a listing for bakelite bars and sheets, despite the fact that Union Carbide has not manufactured bakelite products for years. Id. The pages corresponding to the index entries for bakelite actually describe a material called Garolite, which is a fiber reinforced composite material made by a completely different manufacturer. Id. Even today, materials suppliers and purchasers refer to plastic materials generically as bakelite. Id. In fact, Dr. Richard Lemen, an expert witness who frequently testifies on behalf of asbestos plaintiffs has previously testified that bakelite is a generic term. In a consolidated asbestos trial where Union Carbide was a defendant, Dr. Lemen gave the following testimony: Q: Doctor, when you were deposed back in September of this year, you were asked some questions about Bakelite. Do you recall that? A: Yes I do. 19

26 Q: And it was your testimony then that you considered Bakelite to be a generic term for plastics. Do you remember that? A: Yes, sir. Q: And you still believe that today, correct? A: Yes, I haven t changed my opinion or read anything different. Ex. 11 to Powers Aff. at 4454:5-15. Ken Cohen, an industrial hygienist who has testified for plaintiffs in asbestos cases, admits that bakelite is a generic term. In a previous trial against Union Carbide, Mr. Cohen testified that bakelite is a generic term used in the plastics industry in much the same way that Kleenex is used to refer to all tissue products. Mr. Cohen stated: Q: Now you talked a little bit about the term bakelite. And you used that term in its generic sense, correct? A: Yes, sir. Q: And you equate it to things like scotch tape, Xeroxing. I think you used the term Kleenex. A: As generic names. Yes sir. Ex. 12 to Powers Aff. at 593:2-7. Similarly, Richard Hatfield, another expert witness who frequently testifies on behalf of asbestos plaintiffs, gave the following testimony in July 2002: Q: Do you understand that Bakelite is a generic term and does not necessarily identify who manufactured it? A: Yes, I understand that. Ex. 13 to Powers Aff. at 181: Bakelite also came to be used by the general public in a generic fashion to describe plastic products in the same way that Kleenex is used to refer to all manufacturers tissue products and Teflon is used to refer to fluoropolymer-coated pans. See Ex. 11 to Powers Aff. at 12; Ex. 10 to Powers Aff. at 5. 20

27 Indeed, as noted in more detail above, Mr. Sweberg s own testimony establishes conclusively that this was exactly the manner in which he was using the term. Moreover, Numerous Companies Manufactured Phenolic Molding Compounds Identical to Union Carbide s Bakelite Phenolic Molding Compound and Also Referred to as Bakelite In fact, during an extended time period spanning many decades, there were numerous manufacturers of phenolic molding compounds, which had similar compositions, colors, textures, and uses, and were for all practical purposes impossible to distinguish visually. See Ex. 10 to Powers Aff. at 13. Indeed, manufacturers such as Durez and Plenco, among others, manufactured molding compounds which were indistinguishable from compounds manufactured by Union Carbide. See id. It is quite common to refer to phenolics made by manufacturers other than Union Carbide and the end products made from other manufacturers phenolics as bakelite. See id. at 6. Thus, Plaintiffs Cannot Establish that Union Carbide, Rather than One of the Numerous other Companies that Manufactured Phenolic Molding Compounds Generically Referred to as Bakelite, Was the Manufacturer or Supplier of Any Bakelite Material Allegedly Encountered by Mr. Sweberg Here, just like in Cisler, Mr. Sweberg s testimony makes it clear that he was using the term bakelite generically rather than to refer to a specific manufacturer s product. Thus, because numerous companies other than Union Carbide also manufactured phenolic molding compounds generically referred to as bakelite, Mr. Sweberg s generic use of the term bakelite is insufficient to identify Union Carbide as the manufacturer or supplier of any phenolics allegedly encountered by Mr. Sweberg. As Plaintiffs cannot identify Union Carbide as the manufacturer or supplier of any allegedly defective product to which Mr. Sweberg was exposed, Plaintiffs cannot meet their burden on summary judgment. 21

28 PLAINTIFFS CANNOT SHOW MR. SWEBERG WAS EXPOSED TO ASBESTOS FROM ANY PRODUCT MANUFACTURED OR SUPPLIED BY UNION CARBIDE Under New York Law, to Survive Summary Judgment, Plaintiffs Must Show Exposure to Asbestos from the Defendant s Product Testimony placing a defendant s products at a particular job site where the plaintiff worked is insufficient to overcome summary judgment; rather, to overcome summary judgment, it must be shown that the plaintiff was exposed to asbestos fibers released from the defendant s products. Cawein v. Flintkote Co., 203 A.D.2d 105, (1st Dep t 1994) (citing Celotex Corp. v Catrett, 477 US 317, 320 (1986). 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] awarded. Diel v. Flintkote Co., 204 A.D.2d 53, 54 (1st Dep t 1994). Thus, Where the Defendant Manufactured Both Asbestos-Free and Asbestos-Containing Versions of the Product at Issue, Plaintiffs Cannot Meet Their Burden on Summary Judgment Where the evidence shows that the defendant manufactured or supplied both asbestos-containing and asbestos-free versions of the product at issue during the relevant time period, and the plaintiff cannot show he or she worked with the asbestos-containing product rather than the asbestos-free one, summary judgment for the defendant is warranted. In Perdicaro v. A.O. Smith Water Products (in re NYCAL), 52 A.D.3d 300 (1st Dep t 2008), 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 the Appellate Division reversed, 22

29 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. Id. at 300. Similarly, in Williams v. AC&S, Inc. (in re NYCAL), No /2001 (N.Y. Sup. Ct. June 24, 2010) (Heitler, J.) (attached hereto as Exhibit K), 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. Ex. K at 1. 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, Your Honor 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. Ex. K at 2. 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. (quoting Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596 (1996)). In other words, evidence that 25% of the defendant s sheet gasket material contained asbestos was insufficient to satisfy plaintiff s burden of proving that the particular product to which he allegedly was exposed contained asbestos. Other cases decided by this Court have held consistently. See, e.g., Finazzo v. A.O. Smith Water Prods. Co. (in re NYCAL), Index No /2011 (Sup. Ct. N.Y. County, Dec. 19, 23

30 2011) (Heitler, J.) (attached hereto as Exhibit L) (granting summary judgment for defendant Georgia-Pacific where plaintiff s alleged exposure to Georgia-Pacific joint compound was speculative and occurred at unspecified times during time period that included years before and after those in which Georgia-Pacific manufactured asbestoscontaining joint compound and years in which Georgia-Pacific produced both asbestoscontaining and non-asbestos containing products); Saccomano v. A.C. & S., Inc. (in re NYCAL), Index No /2006 (Sup. Ct. N.Y. County, July 12, 2007) (Freedman, J.) (attached hereto as Exhibit D) (granting summary judgment for defendant Kentile where plaintiff identified three brands of floor tiles but failed to establish which of the three he actually worked around, and defendant manufactured both asbestos-containing and asbestos-free floor tiles); see also Cisler v. A.O. Smith, (In re NYCAL), Index No: /12 (Sup. Ct. N.Y. County, Aug. 8, 2013) (attached hereto as Exhibit A) (granting summary judgment for Union Carbide where plaintiffs submitted unidentified, incomplete transcript of unknown origin which purports to show that [electrical equipment manufacturer s] Hampton, South Carolina plant purchased asbestos solely from UCC between approximately 1967 and 1972 on grounds that [n]ot only does this testimony lack context, it fails to establish that such asbestos was incorporated into phenolic molding compound or that [the manufacturer s] South Carolina plant supplied the New York region ); Liberman v. A.O. Smith Water Products Co., (in re NYCAL), Index No: /2012 (Sup. Ct. N.Y. County, May 1, 2013) (attached hereto as Exhibit B) (granting summary judgment for Union Carbide where plaintiff alleged exposure in New York to phenolic moldings incorporated into electrical equipment, but plaintiff s evidence showed only that electrical equipment manufacturer s Kentucky plant manufactured asbestos-containing 24