Armanious v. 3M Co. (2014)

Our plain-English summary of Armanious v. 3M Co. (New York Supreme Court, August 13, 2014).

Debora Jean Armanious sued as administratrix of the estate of Charles R. Nilsson, who was diagnosed with mesothelioma in October 2012. Mr. Nilsson worked in construction for decades. He did interior work for his father's company, Nilsson & Sons, from 1950 to 1963, and later ran his own business, Cee Ray Roofing & Siding, from 1965 to 1975. He testified that he installed Kentile asbestos floor tiles and used joint compound that he sanded. Union Carbide, which sold asbestos under the name Calidria, asked for summary judgment, arguing that Mr. Nilsson never identified its product as a source of exposure. The court found the Kentile theory speculative, because nothing showed Union Carbide was Kentile's main asbestos supplier. It found that National Gypsum put Calidria into all its Gold Bond joint compound by 1969, and that Mr. Nilsson had named National Gypsum compound as a source. His inconsistent testimony was a credibility question for trial. The court denied Union Carbide's motion.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court
• Decided: August 13, 2014
• Citation: 2014 NY Slip Op 32256(U)
• Docket: Docket No. 190566/12, Motion Seq. No. 002
• Stage: Summary judgment
• State: New York

Outcome. The court denied Union Carbide Corporation's motion for summary judgment, so the plaintiff estate's claims against it continue, because a jury could infer that Mr. Nilsson was exposed to its Calidria asbestos through National Gypsum's Gold Bond joint compound.

What the court held. A plaintiff must show actual exposure to asbestos fibers released from the defendant's product, but may rely on facts from which liability can reasonably be inferred, not speculation. Inconsistent identification of a product by the plaintiff is a credibility question for trial.

Issues decided: Product Identification.

The people and their exposure

• Charles R. Nilsson: mesothelioma; died

Who	Work	Where	When	Products
Charles R. Nilsson	interior work including installing flooring (construction)	Nilsson & Sons	1950-1963	floor tile, Kentile floor tile
Charles R. Nilsson	interior work using joint compound (construction)	Nilsson & Sons	1950-1963	joint compound, Gold Bond joint compound, National Gypsum
Charles R. Nilsson	owner of roofing and siding business, installed and supervised flooring (construction)	Cee Ray Roofing & Siding	1965-1975	floor tile, Kentile

The defendants

• Union Carbide Corporation (supplier)
• Kentile Floors, Inc. (manufacturer) · its asbestos trust
• National Gypsum Co. (manufacturer) · its asbestos trust

Mines named here

Asbestos mines this opinion is about. Each mine's page says who ran it, when it worked, and what it produced.

• Carey Canadian Mines, East Broughton, Quebec
• Santa Rita mine, Joaquin Ridge near Coalinga, California

All asbestos mines

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Dollas v. WR Grace & Co. (New York Supreme Court, Appellate Division, 1st Dept., 1996). The Appellate Division reversed the grants of summary judgment to W.R. Grace against plaintiffs Dollas and Gargano, finding a fact question on whether the decedents were exposed to Grace's Monokote.
• Reid v. Georgia-Pac. Corp. (New York Supreme Court, Appellate Division, 1st Dept., 1995). The Appellate Division affirmed the denial of Rapid-American Corporation's motion for summary judgment, so plaintiff Kenneth Reid's claim against it continues.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2014 NY Slip Op 32256(U)

DEBORA JEAN ARMANIOUS, as Administratrix of the Estate of CHARLES R. NILSSON, Plaintiffs,

v.

3M COMPANY, etal., Defendants.

Docket No. 190566/12, Motion Seq. No. 002.

August 13, 2014.

Supreme Court, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge.

In this asbestos personal injury action, defendant Union Carbide Corporation ("UCC"), which sold asbestos under the trade name "Calidria", moves pursuant to CPLR 3212 for summary judgment dismissing all claims asserted against it on the ground that plaintiff's decedent Charles R. Nilsson did not identify any UCC product as a source of his asbestos exposure. In response plaintiff asserts that Mr. Nilsson was exposed to UCC Calidria used by Kentile Floors, Inc. ("Kentile") to manufacture floor tiles and by National Gypsum Co. ("National Gypsum") to manufacture "Gold Bond" joint compound. Mr. Nilsson was diagnosed with mesothelioma in October of 2012 and commenced this action on December 6, 2012. He was deposed for four days in March of 2013 during which he discussed his alleged asbestos exposure over a lifetime of working in construction.[1] Among other things Mr. Nilsson described how he was exposed to asbestos-containing Kentile floor tiles between 1950 and 1963 while working for his father's company, Nilsson & Sons (plaintiff's exhibit 4, pp. 210, 211, 214-215):

Q You then mentioned to me that you did interior work between 1950 and 1963 when you worked for Nilsson & Sons?

A We did some. . . .

Q . . . What do you mean by interior work exactly?

A Inside the house.

* * * *

Q Do you believe you were exposed to asbestos in any way, shape, or form in your interior work?

A Well, of course, with the compounds, for the most part, and they would be applied to cover nail holes and tape joints, and they had to be sanded, and sand always produces dust, and I think it's more through the sanding process, than the handling process per se but they were — they were asbestos-containing

materials.

* * * *

Q Did you install flooring as part of this interior work?

A During that time, yes.

Q You believe that the Kentile, floor tile that you have installed contained asbestos?

A I think so.

Although on a much less frequent basis, such exposure continued between 1965 and 1975 while Mr. Nilsson operated his own business, Cee Ray Roofing & Siding (defendant's exhibit 6, vol. 3, pp. 348, 353):

Q. Tell me about the interior work that you did for Cee-Ray Roofing between '65 and '75; what did you do? A. We did a lot of wood paneling, which was basically four-by-eight foot plywood sheets, and there was — along with that, we would so some times. . . Doing a ceiling and a floor.

* * * *

Q. What other kinds of floors did you install?

A. Asphalt asbestos tiles. Kentile was the manufacturer, I think. There were other manufacturers that made flooring products of the Congoleum and Armstrong. Whether Johns-Manville fit into that, I'm not completely certain. . . .

Q. Okay. Did you personally do the installation work of the asphalt asbestos tile?

A. I worked on that, yes.

Q. Did you also supervise that installation?

A. Of course.

Mr. Nilsson also believed that he was exposed to asbestos from National Gypsum's Gold Bond joint compound (plaintiff's exhibit 4, pp. 213-214, 357-358, 469-470, 635-636, defendant's exhibit 6, p. 617-618):

A. Are we talking up to 1963?

Q. Up to 1963. That is all we are talking about right now. . . .

Q Let's talk about the compound. Do you know the brand name, manufacturer of the compound material that you said came in one or five gallon metal cans?

A Well, there were a number. There was I think Gold Bond, there was Best Wall, there was U.S. Gypsum, there was Kaiser Gypsum. . . .

Q With regard to your interior work do you believe you were exposed to asbestos in any other way besides the joint compound that you used during your jobs?

A There were other products, and I don't know whether they were containing asbestos. There are floorings which did, because we were told, like, Kentile. I believe they were called asbestos tiles.

* * * *

Q Could you give us the dimension of what you would consider a small bedroom that you might have done between '65 and '75?

A. Six feet by ten feet. . . .

* * * *

Q. Did you ever use National Gypsum roofing products?

A. I think so, occasionally.

Q. What products do you associate with National Gypsum? . . .

A. Tape, compounds.

* * * *

Q. Do you know on how many different occasions Cee-Ray — my understanding is it was rare you did

interior work — on how many occasions you may have done sheet rocking jobs after 1970?

A. No.

Q. Was it more than one?

A. Yes.

Q. For sheet rock, not paneling.

A. Oh, sheet rock? A few times.

Q. A few times. And among those few times, did you use the assorted brands of joint compound that you've already testified to using today?

A. Yes, I would say, yes.

Q. Would that include National Gypsum joint compound?. . . .

A. I guess I was not that much concerned with brands, and we would order compound depending on where

we got it, the different source would have a different compound. I do remember the name, however.

* * * *

Q. With regard to compound, okay, remember earlier you testified concerning the purchasing of materials, and you wouldn't necessarily order by brand name. Is that the same with regard to the compounds you may have used during the course of your operation of Cee-Ray?

A. It's possible. . . .

Q. What about National Gypsum, do you recall using that brand of joint compound?

A. I remember the name, and I believe I testified, but I can't say that I recall using it or just being familiar with it.

Summary judgment is a drastic remedy that should be granted only if there are no triable issues of fact. Vega v Restani Constr. Corp., 18 NY3d 499, 503 (2012). In deciding a summary judgment motion the court's role is to determine if any triable issues exist, not the merits of any such issues. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). In doing so, the court views the evidence in the light most favorable to the nonmoving party and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence. Angeles v Aronsky, 105 AD3d 486, 488-89 (1st Dept 2013).

In asbestos-related litigation, should the defendant establish its prima facie entitlement to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), the plaintiff must then demonstrate that there was actual exposure to asbestos fibers released from the defendant's product. Cawein v Flintkote Co., 203 AD2d 105, 106 (1st Dept 1994). While it is sufficient for the plaintiff to show "facts and conditions from which the defendant's liability may be reasonably inferred" (Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 [1st Dept 1995]), the plaintiff cannot rely on conjecture or speculation. Roimesher v Colgate Scaffolding, 77 AD3d 425, 426 (1st Dept 2010).

Plaintiff's claims as they relate to Kentile are without merit. While UCC did sell Calidria to Kentile during the relevant time period, there is nothing to show that it was Kentile's exclusive asbestos supplier or even one of its major asbestos suppliers. As provided in its 2003 NYCAL interrogatory responses, Kentile purchased raw asbestos UCC as well as Johns-Manville Corp., Carey-Canadian Mines, Ltd., Asbestos Corporation of America, National Gypsum Co., Atlas Asbestos Co., and Asbestos Corporation Ltd.[2] Plaintiff seems to disregard such NYCAL interrogatory responses in asserting that Union Carbide was the exclusive supplier of asbestos to Kentile from 1966 to 1969. In support plaintiff relies exclusively on discovery responses prepared by Kentile in 1986 in an unrelated lawsuit filed in Ingham County, Michigan.[3] However, as the court suggested in Holmes v AB Volvo, Index No. 190273/12 (Sup. Ct. NY Co. Dec. 24, 2013, Heitler, J.), such responses are outdated. Also, they do not unequivocally provide that UCC was Kentile's only asbestos supplier during this three year period.

On the other hand, the evidence clearly demonstrates that National Gypsum incorporated Calidria into all of its Gold Bond joint compound formulas as of 1969.[4] And, contrary to UCC's assertions, Mr. Nilsson did identify National Gypsum joint compound as a source of his exposure during this time period. While his identification may have been inconsistent, this

presents a credibility issue to be decided at trial, and does not entitle UCC to summary judgment. See Anderson v Liberty Lobby, Inc., 477 US 242, 255 (1986); Asabor v Archdiocese of N.Y., 102 AD3d 524, 527 (1st Dept 2013); Alvarez v NY City Hous. Auth., 295 AD2d 225, 226 (1st Dept 2002); Dollas v W.R. Grace & Co., 225 AD2d 319, 321 (1st Dept 1996). In sum, while it would be a speculative to assume that Mr. Nilsson was exposed to Calidria from Kentile floor tiles, a reasonable inference could be drawn that he was exposed to Calidria from Gold Bond joint compound. See Reid, supra; Cawein, supra.

Accordingly, it is hereby

ORDERED that Union Carbide Corporation's summary judgment motion is denied.

This constitutes the decision and order of the court.

[1] Copies of his deposition transcripts are submitted as defendant's exhibit 6. Portions thereof are also submitted as plaintiff's exhibit 4. [2] See defendant's exhibit 10, pp. 19-20.

[3] Plaintiff's exhibit 5, p. 5

[4] Plaintiff's exhibit 7, p. 3 ("Around 1967, National Gypsum switched to Union Carbide SG-210 fiber because the fiber's superior quality enabled National Gypsum to use less asbestos in their materials."); plaintiff's exhibit 8, pp. 2-3 ("Early in 1969 we put in major reformulations in both ready mixed and dry powder compounds, and ready mixed sales more than doubled our best previous year which had been 1966. Changes in the ready mixed formula were built around an excellent new California asbestos from Union Carbide (SG-210). Although somewhat higher in delivered cost than our own 7RF-3 asbestos, approximately half as much SG-210 is required in the formula; and it is much cleaner asbestos, essentially free of undesirable `side effects'. We are using SG-210 exclusively in ready mixed and dry powder.")

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites