Proctor v. Alcoa, Inc. (N.Y. Sup. Ct., Mar. 31, 2014)

Our plain-English summary of Proctor v. Alcoa, Inc. (New York Supreme Court, March 31, 2014).

James Augustus Proctor and Joy C. Proctor sued several companies in New York County after Mr. Proctor was diagnosed with mesothelioma in January 2013. Mr. Proctor testified that from about 1964 through the early 1970s he was a sheet metal worker installing HVAC duct work. The plaintiffs alleged he was exposed to asbestos from Duro-Dyne, a duct sealer made by Borden. Momentive Specialty Chemicals, sued as Borden Chemical, moved for summary judgment, arguing there was no evidence he was exposed to asbestos from a Borden product. The court denied the motion. Momentive's papers were only an attorney's affirmation, and the court found that Mr. Proctor had testified he used a large amount of Duro-Dyne sealer. He said it got on his hands and clothes and the dust floated in the air. That testimony raised a fact issue. The court declined to consider an industrial hygienist's affidavit first submitted in reply, because the plaintiff had no chance to respond. Discovery disputes were referred to the Special Master.

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: March 31, 2014
• Citation: 2014 NY Slip Op 30885(U)
• Docket: No. 190040/13, Motion Seq. 006
• Stage: Summary judgment
• State: New York

Outcome. The court denied Momentive Specialty Chemicals (sued as Borden Chemical) summary judgment, because plaintiff James Proctor's deposition testimony raised a fact issue about exposure to asbestos from Borden's Duro-Dyne duct sealer.

What the court held. A plaintiff's deposition testimony that he used the defendant's asbestos-containing product and was exposed to its dust raises a fact issue defeating summary judgment. A defendant cannot establish its entitlement to judgment through an expert affidavit first submitted in reply.

Issues decided: Expert Testimony, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• James Augustus Proctor: mesothelioma

Who	Work	Where	When	Products
James Augustus Proctor	sheet metal worker installing HVAC duct work (construction)	department store	1964 through the early 1970s	Duro-Dyne duct sealer (Borden)

The defendants

• Momentive Specialty Chemicals, Inc., sued herein as Borden Chemical Inc. (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.

2014 NY Slip Op 30885(U)

JAMES AUGUSTUS PROCTOR and JOY C. PROCTOR, Plaintiffs,

v.

ALCOA, INC., etal, Defendants.

No. 190040/13, Motion Seq. 006.

March 31, 2014.

Supreme Court, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge.

In this asbestos personal injury action, defendant Momentive Specialty Chemicals, Inc., sued herein as Borden Chemical Inc. ("Momentive"), moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims asserted against it on the ground that there is no evidence to show that plaintiff James Augustus Proctor was exposed to asbestos from a Borden product.

Mr. Proctor was diagnosed with mesothelioma in January of 2013. He commenced this action on February 7, 2013[1] and was deposed for five days in March and April of 2013.[2] Relevant to this motion, Mr. Proctor testified that from approximately 1964 through the early 1970s he was a sheet metal worker responsible for the installation of HVAC duct work. With respect to the defendant, plaintiffs alleges that Mr. Proctor was exposed to asbestos from the application of Duro-Dyne, an asbestos-containing duct sealer manufactured by Borden.[3]

Summary judgment is a drastic remedy that should be awarded only if the defendant produces evidence which prima facie resolves all material issues of fact in its favor and which demonstrates its entitlement to judgment as a matter of law. See Vega v Restani Constr. Corp., 18 NY3d 499, 503 (2012); Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Under the circumstances of this case the defendant's motion must be denied. In this regard, the moving papers merely consist of an attorney's affirmation which states in a conclusory manner that Mr. Proctor never testified that he was exposed to asbestos from a Borden product. However, this court's review of Mr. Proctor's deposition transcript reveals that he did in fact testify that he was exposed to a Borden product (Duro-Dyne) which indisputably contained asbestos (Deposition pp. 159, 425, 427):

Q. You mentioned that you had to replace — you were replacing duct work. Correct?

A. Right.

Q. You mentioned DuraDyne?

A. Right.

Q. Do you believe that the process — that process exposed you to asbestos?

A. Right.

Q. From what product?

A. From the DuraDyne product, pipe joint fitting. We would get it on our hands, on our clothes.

* * * *

Q. Is there any way for you to tell me how much Duro Dyne sealer you used at the department store?

A. It's a large amount. I mean, I could say 50 cans, 100 cans, but it was a lot.

* * * *

Q. Do you believe that the Duro Dyne sealer exposed you to asbestos?

A. Yes.

Q. How so?

A. When we put it on the duct work, it would fall on our hands, the dust from brushing it on, it would be floating in the air. Generally, that was it.

Such testimony is sufficient to raise an issue of fact with respect to the defendant's liability. See Josephson v Crane Club, Inc., 264 AD2d 359, 360 (1st Dept 1999) (quoting Butler v Helmsley Spear Inc., 198 AD2d 131, 132) (the deposition testimony of a plaintiff submitted in opposition to a summary judgment motion "constitutes evidence in admissible form by someone with personal knowledge of the facts. . . ."); see also Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 (1st Dept 1995) (to successfully oppose a summary judgment motion in an asbestos personal injury case the plaintiff need only show facts and conditions from which the defendant's liability may be reasonably inferred).

For the first time in reply the defendant submits an affidavit from industrial hygienist Dr. Dennis Paustenbach who essentially opines that Duro-Dyne could not have contributed to Mr. Proctor's injuries.[4] However, it would be improper for this court to consider Dr. Paustenbach's affidavit for the purpose of establishing the defendant's entitlement to summary judgment, see Batista v Santiago, 25 AD3d 326, 326 (1st Dept 2006), especially where, as here, plaintiff has had "neither the obligation nor opportunity to respond. . . ." Azzopardi v American Blower Corp., 192 AD2d 453, 454 (1st Dept 1993).

Plaintiff opposes the motion as premature on the ground that the defendant has not provided basic discovery in this matter. The defendant responds that plaintiff improperly served its discovery requests on the defendant's prior counsel. To the extent these issues have not been resolved the parties are directed to immediately contact the Special Master. Accordingly, it is hereby

ORDERED that Borden Chemical, Inc.'s motion for summary judgment is denied.

This constitutes the decision and order of the court.

[1] His case is included in this court's October 2013 In-Extremis Trial Group.

[2] Portions of Mr. Proctor's deposition transcripts are submitted as plaintiff's exhibit 1 ("Deposition"). [3] See Duro-Dyne's 2004 NYCAL Interrogatory Responses, plaintiff's exhibit 2, attachment 1, p. 34.

[4] Specifically, Dr. Paustenbach states that "any exposure that Mr. Proctor may have had to chrysotile asbestos from a Borden Chemical Product (if any occurred at all) would not have been part of the subset of inhaled fibers that caused his mesothelioma." He continues that "any such exposure would have been negligible (if any occurred at all) and indistinguishable from general background exposures to chrysotile asbestos that are not known to be sufficient to induce mesothelioma. There would be no risk associated with the exposures from Borden Chemical products." Paustenbach Affidavit ¶¶ 39-40.

Sources

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