Friedman v. AI Friedman, LP (2011)

Our plain-English summary of Friedman v. AI Friedman, LP (New York Supreme Court, June 29, 2011).

Roberta Friedman sued DAP, Inc. and other defendants in New York County, claiming her mesothelioma, diagnosed in April 2009, was caused in part by asbestos in DAP caulking products. DAP moved for summary judgment, admitting some of its caulks contained asbestos but arguing she had no factual basis to say the caulk she used did. Friedman testified that she used DAP caulk from a 12-inch tube with a caulking gun. As a child from 1956 to 1970 she helped her father caulk the windows of the family home in Queens. She also used it in a Manhattan apartment in 1970 and had a remodeler use it at her home in 2006. DAP had admitted making asbestos-containing caulks from 1960 to 1978, several packaged for use with a caulking gun. The court found her description matched those products and DAP's brochure images. It held this created a reasonable inference of exposure and a triable issue of fact, and denied the motion in full.

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: June 29, 2011
• Citation: 2011 NY Slip Op 31805(U)
• Docket: No. 190263/09
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The trial court denied defendant DAP Inc.'s motion for summary judgment in its entirety, so plaintiff Roberta Friedman's claims against DAP go forward.

What the court held. A plaintiff defeats summary judgment on product identification by presenting evidence from which it can reasonably be inferred that she was exposed to asbestos from the defendant's product, such as a description of the product matching the defendant's asbestos-containing product.

Issues decided: Product Identification.

The people and their exposure

• Roberta Friedman: mesothelioma

The defendants

• DAP, Inc. (manufacturer)
• A.I. Friedman, L.P.

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Friedman v. AI Friedman, LP (July 7, 2010). The trial court denied defendant United Gilsonite Laboratories' motion for summary judgment, so plaintiff Roberta Friedman's claims against it proceed.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Penn v. Amchem Products (New York Supreme Court, Appellate Division, 1st Dept., 2010). The Appellate Division held that the evidence was sufficient for the jury to find Kerr distributed the asbestos dental liners Penn used, rejecting the trial court's contrary finding in Kerr's favor, and ruled that the damage awards deviated from reasonable compensation.

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.

2011 NY Slip Op 31805(U)

ROBERTA FRIEDMAN, Plaintiff,

v.

A.I. FRIEDMAN, L.P., etal., Defendants.

No. 190263/09.

June 29, 2011.

Supreme Court, New York County.

DECISION AND ORDER

SHERRY KLEIN HEITLER, J.S.C.

In this asbestos personal injury action, defendant DAP, INC. ("DAP") moves pursuant to CPLR § 3212 for summary judgment dismissing the complaint and all other claims and cross claims asserted against it. For the reasons set forth below, the motion is denied.

BACKGROUND

This action was commenced by Roberta Friedman to recover for personal injuries allegedly caused, among other things, by her exposure to asbestos-containing caulking products that were manufactured, sold and distributed by the defendant, DAP. Plaintiff was deposed on December 22, 2009, January 20, 2010 and January 27, 2010. Her deposition transcript of January 20, 2010 is submitted as defendant's exhibit C ("Deposition"). Excerpts of plaintiffs other deposition testimony and her de bene esse transcript are submitted as plaintiffs Exhibits A and B, respectively. Plaintiff testified that she was diagnosed in April 2009 with mesothelioma. Plaintiff alleges that her cancer developed, in part, due to her prior use of defendant's asbestos-containing caulking products.

The moving defendant contends that there is insufficient evidence that plaintiff was exposed to asbestos or to asbestos-containing products manufactured or distributed by DAP. While defendant concedes that some of its caulking products contained asbestos, it submits that plaintiffs claim is speculative at best. Defendant argues that plaintiff has provided no factual basis for her position that the caulk she used contained asbestos and that her testimony that "a lot of products back then had asbestos" (Deposition p. 257) is pure conjecture. In opposition, plaintiff contends that the caulk she described as the product she used matches DAP's own brochure description of its asbestos-containing caulk, which raises issues of fact sufficient to preclude summary judgment in defendant's favor.

DISCUSSION

For a defendant to succeed on its motion for summary judgment it "must make a prima facie showing that its product could not have contributed to the causation of plaintiffs injury," (Comeau v W.R. Grace & Co.-Conn. 216 AD2d 79, 80 [1st Dept 1995]), and must do so by tender of evidentiary proof in admissible form." Friends of Animals, Inc. v Associated Fur Mfrs., Inc. 46 NY2d 1065, 1067 [1979]; CPLR §3212(b). Should defendant make a prima facie case, the plaintiff must then provide "facts and conditions from which defendant's liability may reasonably be inferred." Reid v Georgia-Pacific Corp, 212 AD2d 462, 463 [1st Dept 1995]. In other words, plaintiff must submit evidence that would permit the trier of fact to infer that she was exposed to asbestos fibers from the defendant's product. See Cawein v Flintkote Co., 203 AD2d 105, 106 [1st Dept 1994].

Defendant argues that plaintiff has no factual basis to support her belief that the caulk she used contained asbestos. In support defendant submits the affidavit of Ward Treat, sworn to March 1, 2011. Mr. Treat, an employee of DAP from 1973 to approximately 1990, concedes that DAP did produce during the relevant time period caulk that contained asbestos. However, he attests that DAP also made several non-asbestos caulks, some of which were made for sealing around

windows, sinks and for other bathroom and kitchen applications. Further, Mr. Treat asserts that DAP made no asbestos-containing products after 1978.

However, plaintiffs testimony, combined with the plaintiffs documentary evidence produced on this motion, is sufficient to raise material issues of fact. Ms. Friedman testified that she used DAP caulking products throughout her life. As a child, she lived with her parents on Cloverdale Blvd, in Queens NY, from 1956 to 1970. During the late fall of each year, her father applied DAP caulk around the windows of the family home. For about a decade, Ms. Friedman assisted her father with the application of the caulk. She testified that the caulk would leave a residue on her hands and that, to remove the residue, she would scrub her hands with a brush and then wash them with soap and water. She stated that when she was cleaning the dried caulk from her hands it would create dust and particles would be released into her vicinity. Plaintiff was unable to name the specific type of caulk she used but testified that it came in a 12 inch tube on which "DAP" was written and that the caulk was applied using a caulking gun.

Plaintiff also used DAP caulk in 1970 when she moved into an apartment at 178 West Houston Street in Manhattan. The three tubes (two opened, one unopened) of the DAP caulk she used there came from her parents' Cloverdale Boulevard house. Using a screwdriver and her bare hands, she applied the caulk to four windows and to her bathtub. Plaintiff testified that the projects took her approximately two weeks to complete.

Plaintiff used DAP caulk most recently in 2006 at her current residence at 2917 Weatherby Street in Yorktown, NY. Plaintiff purchased the DAP caulk in 2006 which she provided to a remodeler who used it on renovation projects in her kitchen and her bathroom.

In prior interrogatory answers in an unrelated case, DAP has conceded that, from 1960 to 1978, it manufactured asbestos-containing caulking products (Plaintiffs Exh C at 21). Of these, the DAP caulk products Blacktite, Rely-On, Painter's, Butyl-Flex Caulk, Architectural Caulk, and Butyl Gutter & Lap Sealer were packaged and made to be utilized in the manner described by plaintiff, namely in a tube with a caulking gun (Plaintiffs Exh D at 25; Plaintiffs Exh E). The evidence is that at that time the only asbestos-free caulks that DAP manufactured either were not applied with a caulk gun or was of a type which would be used in conjunction with latex paint. Plaintiff testified that she used a caulk gun and did not use the caulk in conjunction with latex paint.

Plaintiffs testimony is that she used caulk manufactured and sold by DAP during the period that DAP manufactured asbestos-containing products. Plaintiffs description of the caulk she used matches DAP's description of the asbestos-containing caulk manufactured by it. In addition, her description of the DAP caulk she used coincides with the images in the DAP brochure of its asbestos-containing caulk. In the circumstances of this case, plaintiff has set forth sufficient evidence to create a reasonable inference that she was exposed to asbestos from defendant's product and hence raises a triable issue for the trier of fact. See Perm v Amchem Products, 73 AD3d 493, 494 [1st Dept 2010]; Cawein, supra, 203 AD2d at 106. Accordingly, it is hereby

ORDERED that DAP Inc's motion for summary judgment is denied in its entirety.

This constitutes the decision and order of the court.

Sources

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