Liberman v. AO Smith Water Prods. Co. (2013)

Our plain-English summary of Liberman v. AO Smith Water Prods. Co. (New York Supreme Court, May 3, 2013).

Leonid Liberman, who was diagnosed with mesothelioma in December 2011, and his wife Dina sued several companies over his exposure to asbestos. Mr. Liberman came from Ukraine in 1992 and worked as an electrician in New York City buildings until 1996. He testified that he cut and drilled old panel boxes and circuit breakers, including Square D equipment, and breathed dust from black phenolic molding that he believed was asbestos. Union Carbide had sold an asbestos-containing Bakelite molding compound until 1975. The plaintiffs relied on a 1972 company memo about shipments to Square D's Lexington, Kentucky plant, which referred to keeping 100% of that customer's business. Union Carbide moved for summary judgment. The court granted it. The memo covered only one of many Square D plants, and plaintiffs had not shown that plant's products reached New York. Square D had also listed at least seven suppliers, not including Union Carbide. Nothing showed the Kentucky plant made circuit breakers or panel boxes. The claims against Union Carbide were dismissed; the case continued against the other defendants.

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: May 3, 2013
• Citation: 2013 NY Slip Op 30955(U)
• Docket: Docket No. 190057/12, Motion Seq. No. 002
• Stage: Summary judgment
• State: New York

Outcome. The court granted Union Carbide Corporation's motion for summary judgment and dismissed the complaint and cross claims against it, because plaintiffs did not show Mr. Liberman was exposed to UCC's asbestos; the case continued against the other defendants.

What the court held. In asbestos cases, once a defendant makes a prima facie showing, the plaintiff must show actual exposure to asbestos fibers from that defendant's product; a memo about one Square D plant did not support an inference that UCC's material reached the products Mr. Liberman worked with in New York.

Issues decided: Product Identification.

The people and their exposure

• Leonid Liberman: mesothelioma; died

Who	Work	Where	When	Products
Leonid Liberman	electrician (construction)	residential and commercial buildings throughout New York City, New York, New York	1992-1996	asbestos-reinforced plastics, Bakelite, BMRS-5314, Square D panel boxes and circuit breakers

The defendants

• Union Carbide Corporation (manufacturer)
• A.O. Smith Water Products Co.
• Square D (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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.

2013 NY Slip Op 30955(U)

LEONID LIBERMAN and DINA LIBERMAN, Plaintiffs,

v.

A.O. SMITH WATER PRODUCTS CO., etal., Defendants.

Docket No. 190057/12, Motion Seq. No. 002.

May 1, 2013.

Filed May 3, 2013.

Supreme Court, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge.

This motion is decided in accordance with the memorandum decision.

Plaintiff Leonid Liberman, now deceased, was diagnosed with mesothelioma on or about December 28, 2011. On February 2, 2011 Mr. Liberman and his wife Dina Liberman ("Plaintiffs") commenced this action to recover for personal injuries allegedly caused by Mr. Liberman's exposure to asbestos-containing products. Mr. Liberman was deposed on February 14, 15 and 16, 2012.[1]

Mr. Liberman emigrated to the United States from the Ukraine in May of 1992. Between 1992 and 1996 he worked as an electrician at residential and commercial buildings throughout New York City. Mr. Liberman testified that during the course of his employment he was exposed to asbestos-containing phenolic moldings incorporated into electrical equipment such as panel boxes and circuit breakers. These panel boxes and circuit breakers were supplied by Square D, among others. Because they were usually very old, Mr. Liberman often used hacksaws, drills, hammers, and other tools to work with them. In so doing, Mr. Liberman testified that he was exposed to asbestos dust which got on his clothes, and into his nose and mouth (defendant's exhibit 2, pp. 132-135):

Q Explain to me how you encountered the material that you believe was asbestos containing.

A All this breaker, make it from asbestos. All these breakers are asbestos; plus when open back box, you see it's like black plastic, but it's not plastic. This is, this is asbestos. So you have to chop it, because they got some screw. This is — when you start to chop it, dust coming into your face — to my face, correct. Q Anything else in addition to that?

A And panel.

Q In the panel, or is that it?

A Breaker and panel and back box.

* * * *

Q Do you know the brand name, trade name or manufacturer's name of any of the old panels that you removed. . .?

A Yes.

Q What were those names?

A General — . . . like Cutler-Hammer, GE, Murray, ITE, Siemens, Square D and Westinghouse. . . .

* * * *

Q Okay. Do you know who manufactured the old circuit breakers that were contained in those panels? A Same company. . .

* * * *

Q Okay. Do you know who manufactured the black plastic that was in the back box?

A Black plastic. You mean asbestos?

Q You said there was black plastic in the back box that you referred to as asbestos.

A Yes.

Q Do you know who manufactured that?

A I think it's the same, same name. . . I just mentioned.

Defendant Union Carbide Corporation ("UCC") manufactured and sold asbestos-containing phenolic molding compound under the trade name "Bakelite" until 1975. Bakelite, which has the appearance of hard plastic, was commonly used in electrical panels, insulators and switches due to its electrically nonconductive and heat-resistant properties. While most Bakelite did not contain asbestos, some varieties did, including one form designated BMRS-5314.

Plaintiffs' exhibit 7 is an internal UCC memorandum dated August 17, 1972 in which a UCC representative discussing BMRS-5314 shipments to Square D's Lexington, Kentucky plant observes that "the adherence to these seven Special Customer Requirements will go a long way towards Union Carbide's maintaining 100% of this customers [sic] valuable phenolic molding material business." Emphasizing the "100%" language, Plaintiffs submit that UCC was the exclusive supplier of asbestos-containing phenolic molding material to Square D, and, a fortiori, that Mr. Liberman was necessarily exposed to UCC's asbestos while working with Square D phenolic molding.

UCC moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross claims against it on the ground that it was not the exclusive supplier of phenolic molding compound to Square D, which had dozens of North American facilities in addition to the Lexington, Kentucky plant. UCC also argues there is no evidence to show that Square D's Lexington, Kentucky plant manufactured circuit breakers and panel boxes, which are the types of materials Mr. Liberman testified to working on, and assuming it did, that such products were supplied to the New York market.[2] To obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law, and must tender sufficient evidence to demonstrate the absence of any material issue of fact. Zuckerman v City of New York, 49 NY2d 557, 562 (1980). 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 from the defendant's product. Cawein v Flintkote Co., 203 AD2d 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. Reid v Georgia Pacific Corp., 212 AD2d 462, 463 (1st Dept 1995). UCC's motion for summary judgment is granted. The memorandum in question refers only to Square D's Lexington, Kentucky facility, whereas Square D had at least four dozen plants throughout North America besides the Kentucky plant, (Defendant's exhibit 5), and Plaintiffs have not shown that the asbestos-containing products manufactured in Kentucky supplied the New York region. In fact, Square D's March 9, 2006 interrogatory responses filed in Madison County, Illinois[3] provide that the company purchased its phenolic molding compounds from at least seven different suppliers. Notably, UCC was not among the suppliers listed therein. (Defendant's exhibit 4, p. 18). Thus, Plaintiffs' assertions that the Square D products with which Mr. Liberman worked in New York City were manufactured at Square D's Lexington, Kentucky facility and that Mr. Liberman was exposed to UCC's asbestos are unsupported by the record.

Plaintiffs have similarly failed to establish that Square D's Lexington, Kentucky plant even produced circuit breakers and panel boxes. Defendant's exhibit 5 is a promotional catalog celebrating Square's D 100 years in the electrical industry. One section, entitled "History of Operations", details the operations of each Square D plant. It shows that in 1955 the company's plastic molding operations were transferred from Peru, Indiana to a plant in Cedar Rapids, Iowa that produced circuit

breakers. By comparison, it appears that Square D's Lexington, Kentucky facility mainly produced "load centers, general and heavy-duty safety switches and components shipped to other Square D facilities." (Defendant's exhibit 5). In light of the foregoing, it is hereby

ORDERED that UCC's motion for summary judgment is granted, and this action and any cross-claims against this defendant are severed and dismissed in their entirety; and it is further

ORDERED that the action shall continue as against the remaining defendants' and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the Court.

[1] Mr. Liberman's deposition transcripts are submitted as defendant's exhibits 1, 2 and 3.

[2] UCC's contention that as a later added defendant it was not present at plaintiff's deposition is unavailing. UCC's remedy in this regard was to serve a deposition notice on the plaintiff.

[3] Submitted as exhibit 4 to UCC's reply brief.

Sources

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