New York County Clerk’s Index No. 190421/11

New York Supreme CourtAPPELLATE DIVISION — FIRST DEPARTMENT

IN RE: NEW YORK CITY

ASBESTOS LITIGATION

ALICE KESTENBAUM,

as Executrix of the Estate of FRANK KESTENBAUM,

Plaintiff-Respondent,against

DUREZ CORP., et al.,Defendants,

and

UNION CARBIDE CORPORATION,

Defendant-Appellant.

>> >>

To Be Argued By:Scott A. Chesin

BRIEF FOR DEFENDANT-APPELLANT

UNION CARBIDE CORPORATION

Scott A. Chesin

Michael Rayfield

MAYER BROWN LLP

1675 Broadway

New York, New York 10019

212-506-2500

schesin@mayerbrown.com

mrayfield@mayerbrown.com

Jonathan Kromberg

DARGER ERRANTE YAVITZ

& BLAU LLP

116 East 27th Street, 12th Floor

New York, New York 10016

212-452-5300

jkromberg@deybllp.com

Printed on Recycled Paper

Attorneys for Defendant-Appellant Union Carbide Corporation

TABLE OF CONTENTS

Page

INTRODUCTION ..................................................................................................... 1

QUESTION INVOLVED .......................................................................................... 3

STATEMENT OF THE FACTS AND THE CASE .................................................. 3

SUMMARY OF ARGUMENT ................................................................................. 7

STANDARD OF REVIEW ....................................................................................... 9

ARGUMENT ........................................................................................................... 10

I. To Survive Summary Judgment, Plaintiff Must Adduce Evidence Of

“Probable” Exposure To Asbestos From A Product Attributable To

UCC ..................................................................................................... 10

II. The Record Would Not Permit A Jury To Conclude That It Is

“Probable” That Mr. Kestenbaum Was Exposed To Asbestos From A

Product Attributable To UCC ............................................................. 11

A. Mr. Kestenbaum’s Testimony Cannot Establish That

The Plastic Sheets Contained Asbestos .................................... 12

B. The Evidence Cited By The Trial Court Cannot Establish That

The Plastic Sheets Contained Asbestos .................................... 12

1. Mr. Martino’s Testimony ............................................... 13

2. Ms. Carrington’s Testimony ........................................... 16

CONCLUSION ........................................................................................................ 18

TABLE OF AUTHORITIES

Page(s)

-ii-

CASES

Abulhasan v. Uniroyal-Goodrich Tire Co.,

14 A.D.3d 900 (3d Dep’t 2005) .......................................................................... 10

Curran v. Esposito,

308 A.D.2d 428 (2d Dep’t 2003) ........................................................................ 14

Diel v. Flintkote Co.,

204 A.D.2d 53 (1st Dep’t 1994) ............................................................. 10-11, 13

Duane Reade, Inc. v. Cardtronics, LP,

54 A.D.3d 137 (1st Dep’t 2008) ........................................................................... 9

Healey v. Firestone Tire & Rubber Co.,

87 N.Y.2d 596 (1996) ................................................................... 9, 10, 11, 13, 14

Hirsch v. S. Berger Import & Mfg. Corp.,

67 A.D.2d 30 (1st Dep’t 1979) ........................................................................... 10

O’Connor-Miele v. Barhite & Holzinger, Inc.,

234 A.D.2d 106 (1st Dep’t 1996) ....................................................................... 10

Peridicaro v. A.O. Smith Water Products,

52 A.D.3d 300 (1st Dep’t 2008) ................................................................... 14, 15

Pirrelli v. Long Island R.R.,

226 A.D.2d 166 (1st Dep’t 1996) ......................................................................... 9

Rinaldi & Sons, Inc. v. Wells Fargo Alarm Serv., Inc.,

39 N.Y.2d 191 (1976) ......................................................................................... 13

Rothouse v. Ass’n of Lake Mohegan Park Prop. Owners, Inc.,

15 A.D.2d 739 (1st Dep’t 1962) ........................................................................... 9

Schiraldi v. U.S. Mineral Prods.,

194 A.D.2d 482 (1st Dep’t 1993) ....................................................................... 11

Stukas v. Streiter,

83 A.D.3d 18 (2d Dep’t 2011) .............................................................................. 9

TABLE OF AUTHORITIES

(continued)

Page(s)

-iii-

Williams v. AC&S, Inc.,

No. 107181/2001 (N.Y. Sup. Ct. June 24, 2010) ............................................... 15

Zuckerman v. City of New York,

49 N.Y.2d 557 (1980) ..................................................................................... 9, 14

STATUTES

C.P.L.R. § 3212(b) ..................................................................................................... 9

INTRODUCTION

Plaintiff brought this wrongful-death action against defendant Union

Carbide Corporation (“UCC”) for injuries sustained by her deceased husband,

Frank Kestenbaum, from alleged exposure to asbestos. Plaintiff claims that when

Mr. Kestenbaum was working as a salesman at Cadillac Plastic & Chemical Co.

from 1969 to 1972, he was occasionally exposed to asbestos when he cut into

laminated plastic sheets, rods, and tubes allegedly manufactured by UCC from

material called “phenolic resins.” Plaintiff further alleges that Mr. Kestenbaum’s

exposure to asbestos from UCC’s products and those of other companies—whom

Plaintiff has also sued, but which are not the subject of this appeal—caused Mr.

Kestenbaum’s death by pleural mesothelioma.

UCC moved for summary judgment, arguing (among other things) that

regardless of who manufactured the plastic products at issue, no reasonable juror

could find by a preponderance of the evidence that Mr. Kestenbaum was exposed

to asbestos from those products because there was no evidence in the record to

establish that they contained asbestos in the first place. Although the trial court

recognized that Mr. Kestenbaum did not know whether the products he worked

with contained asbestos—indeed, he testified that he worked with plastic sheets

made from other materials—it nonetheless denied UCC’s motion. The court

concluded that two pieces of evidence created a triable issue of fact as to whether

-2-

the plastic sheets Mr. Kestenbaum allegedly used contained asbestos: (1) a

witness’s supposed “testimony that approximately 40 percent of UCC’s phenolic

resins contained asbestos” during the relevant period; and (2) a different witness’s

testimony that “she was not familiar with certain UCC documents” shown to her at

her deposition suggesting that one of UCC’s polystyrene fibrous resins—a

different product from phenolic resins—may have been combined with asbestos on

some unspecified occasions. Based on this evidence, the court concluded that

“there [wa]s enough to question UCC’s position that the resins Mr. Kestenbaum

worked with were universally asbestos-free.”

The trial court erred. By definition, evidence that 40% of UCC’s phenolic

resins contained asbestos, or that the resins were not “universally asbestos-free”

(even if credited), could not satisfy plaintiff’s burden of adducing evidence from

which a reasonable jury could conclude that it was reasonably probable that the

plastic sheets Mr. Kestenbaum allegedly used contained asbestos. And because

there is no evidence that those plastic sheets were made from polystyrene fibrous

resins, the testimony about that product likewise cannot satisfy plaintiff’s burden.

This Court should therefore reverse the trial court’s order and remand with

instructions to grant UCC’s motion for summary judgment.

-3-

QUESTION INVOLVED

In an action seeking damages for alleged injuries from exposure to asbestos, is

summary judgment for the defendant proper where:

(a) the decedent admittedly had no personal knowledge of whether the

plastic sheets he allegedly used contained asbestos; and

(b) the only circumstantial evidence of asbestos exposure was

(i) testimony that the type of component material used to make the

plastic sheets contained asbestos less than half of the time; and

(ii) testimony that a different component material, not used to make

the plastic sheets the decedent allegedly used, was sometimes

combined with asbestos?

Trial Court’s Answer: No.

STATEMENT OF THE FACTS AND THE CASE

According to his deposition testimony, Mr. Kestenbaum worked at Cadillac

Plastic & Chemical Co. from 1969 to 1972. R. 216 at 158.1 He worked primarily

as a salesman, but on a “couple” of occasions he “had to help out and cut some

materials” on the manufacturing floor (R. 186 at 100), including plastic sheets,

rods, and tubes (R. 189 at 110). Mr. Kestenbaum testified that the materials he

worked with were made of “bakelite,” which he stated was a phenolic resin

product. R. 186 at 99-101, R. 189 at 110-11, R. 212 at 144-45, R. 290 at 364-367.

1 “R. __” refers to the record on appeal. When a page of the record includes

four pages of a deposition transcript, the citation “R. __ at __” specifies the page or

pages being referenced.

-4-

At the time Mr. Kestenbaum worked at Cadillac, UCC manufactured and

sold phenolic resins (as well as other plastic component materials) under the trade

name “Bakelite.” UCC’s phenolic resins were component materials sold in liquid

form that other companies used to make laminated plastic products. See R.

386-87. “Bakelite” came to be known throughout the industry as a generic term

for both phenolic component materials and many kinds of finished plastic

products. R. 434-36. But as the trial court noted, “Mr. Kestenbaum testified that

the Bakelite sheets he and his colleagues worked with at Cadillac [were] purchased

directly from UCC”2 and plaintiff alleged “that the process of cutting and drilling

those Bakelite sheets contributed to [Mr. Kestenbaum’s] asbestos exposure.”

R. 7.3

As the trial court also found, however, Mr. Kestenbaum “had no personal

knowledge whether those sheets actually contained asbestos.” R. 7-8; see also R.

213 at 148-49. UCC’s internal sales records do not indicate any sales of asbestos-

containing products to Cadillac during the period when Mr. Kestenbaum worked

2 Mr. Kestenbaum testified that the principal supplier of the laminated plastic

sheets he used at Cadillac was a company called Franklin Fibre. R. 338 at 35. At

one point in his discovery deposition, however, he did state that Cadillac also

purchased sheets from UCC (R. 187 at 102), although he did not identify UCC in

his evidence deposition.

3 As noted, Mr. Kestenbaum testified that he worked with plastic sheets, rods,

and tubes manufactured by UCC. The trial court used the word “sheets” in its

opinion; we largely do the same in this brief, for ease of reference.

-5-

there. R. 384 at 15-16. Nor has plaintiff pointed to any Cadillac purchase records

indicating that it purchased any asbestos-containing products from UCC. Indeed,

Mr. Kestenbaum testified that the plastic products he worked with at Cadillac

“came in canvas, paper, [and] glass” (R. 192 at 122), which are reinforcing

materials distinct from asbestos that can be combined with phenolic resins to make

plastic sheets or other such finished plastic products.

In 2011, Mr. Kestenbaum was diagnosed with pleural mesothelioma. He

and plaintiff sued several defendants, including UCC, seeking damages based on

his alleged asbestos exposure. See R. 59-66. On March 13, 2013, following his

depositions in December 2011 and May 2012 (R. 161-374), Mr. Kestenbaum

passed away. Plaintiff filed a wrongful-death complaint as executor of Mr.

Kestenbaum’s estate in April 2013. R. 375-79.

In July 2013, UCC produced corporate witness Susan Carrington for a

deposition. See R. 380-430. As the trial court noted (R. 8-9), Ms. Carrington

testified that none of UCC’s phenolic resins contained asbestos (R. 386 at 22-23).

Although UCC “made phenolic mold compounds” under the trade name “Bakelite”

that “sometimes contained asbestos as a filler,” UCC “never made [phenolic]

resins . . . that would have contained a filler like asbestos.” R. 394 at 54-55

(emphases added). During the same deposition, plaintiff’s counsel read from a

1960 document purporting to show that one polystyrene fibrous resin—a different

-6-

form of plastic also manufactured by UCC—may at some point have been

combined with asbestos. R. 395-96. Ms. Carrington testified that she could not

tell from that document whether the polystyrene fibrous resin product identified

therein was ever combined with asbestos. R. 396 at 64-65.

After the close of discovery, UCC moved for summary judgment, arguing

that no reasonable juror could conclude by a preponderance of the evidence that

Mr. Kestenbaum was exposed to a product attributable to UCC that contained

asbestos. See R. 14-15; R. 37-54. UCC submitted an affidavit from

polymer-science engineer Dr. John R. Moalli concluding that Mr. Kestenbaum’s

alleged asbestos exposure could not have come from a UCC product because

UCC’s “phenolic resins never contained asbestos.” R. 437.

Plaintiff opposed UCC’s motion. R. 485-507. One exhibit she attached was

a March 21, 2008, deposition transcript of former UCC corporate representative

Carlo Martino taken in an unrelated asbestos case. R. 669-99. Mr. Martino

testified in that case that in 1969, “about 40 percent of [UCC]’s production

contained asbestos.” R. 680 at 44.

The trial court denied UCC’s motion for summary judgment. R. 4-13. After

summarizing the evidence and the summary judgment standard (see R. 6-11), the

court concluded:

In light of . . . Ms. Carrington’s testimony regarding UCC’s fibrous

resins and Mr. Martino’s testimony that approximately 40 percent of

-7-

UCC’s phenolic resins contained asbestos in 1969,[4] there is enough

to question UCC’s position that the resins Mr. Kestenbaum worked

with were universally asbestos-free. Accordingly, it is hereby ordered

that Union Carbide’s motion for summary judgment is denied.

R. 11.

This appeal followed. See R. 3.

SUMMARY OF ARGUMENT

The trial court erred in denying UCC’s motion for summary judgment. To

survive summary judgment, plaintiff had to submit evidence from which a

reasonable jury could conclude, by a preponderance of the evidence, that Mr.

Kestenbaum was exposed to asbestos from a product attributable to UCC. She

failed to do so. Mr. Kestenbaum did not know whether the plastic sheets he

allegedly worked with at Cadillac contained asbestos. In fact, he testified that they

were made with other materials. And the two pieces of circumstantial evidence

4 The trial court interpreted the statement Mr. Martino made in his 2008

deposition to mean “that in 1969 40% of UCC’s phenolic resin products contained

asbestos.” R. 10. UCC believes that was an erroneous interpretation. The

question posed to Mr. Martino was: “In 1969, how many products did Union

Carbide manufacture in the phenolic resin part of the business that actually had

asbestos in it?” R. 680 at 44. Mr. Martino’s answer referenced UCC’s

“production” generally, not its phenolic resins in particular. Id. Read in proper

context, Mr. Martino’s testimony indicates that, at one time, 40% of UCC’s

phenolic products, including phenolic molding compounds (a different component

material from phenolic resins), may have contained asbestos. As discussed below,

this Court need not determine whether the trial court’s interpretation was correct;

for purposes of this appeal, we will assume (contrary to fact) that a jury could

conclude that in 1969, 40% of the phenolic resins manufactured by UCC contained

asbestos.

-8-

cited by the trial court, even if credited as true, could not satisfy plaintiff’s burden

of establishing that the sheets contained asbestos. Mr. Martino’s supposed

testimony that there was asbestos in 40% of the phenolic resins UCC made in 1969

surely does not make it more likely than not that the plastic sheets Mr. Kestenbaum

allegedly used contained asbestos. And Ms. Carrington’s testimony about a

polystyrene fibrous resin is irrelevant because there is no evidence that the plastic

sheets Mr. Kestenbaum allegedly used were made from this component material;

Mr. Kestenbaum repeatedly testified that the products were made from phenolic

resins, a different material. And even if the sheets had been made from

polystyrene fibrous resins, evidence that one such resin at some point may have

been combined with asbestos is not enough to make it more likely than not that the

sheets Mr. Kestenbaum used contained asbestos.

In short, the trial court asked the wrong question. The judge concluded that

summary judgment was not warranted because there was a question of fact

whether UCC’s phenolic resins “were universally asbestos-free.” But at trial,

plaintiff must prove more than that some UCC products contained asbestos, or that

it is possible that Mr. Kestenbaum was exposed. She must adduce evidence from

which a jury could conclude that the plastic sheets Mr. Kestenbaum used more

likely than not contained asbestos, such that it is probable he was exposed. No

-9-

rational jury could draw that conclusion even if it accepts the evidence in the

record. Summary judgment is therefore appropriate.

STANDARD OF REVIEW

This Court reviews the trial court’s denial of UCC’s motion for summary

judgment de novo. Duane Reade, Inc. v. Cardtronics, LP, 54 A.D.3d 137, 140 (1st

Dep’t 2008); Rothouse v. Ass’n of Lake Mohegan Park Prop. Owners, Inc., 15

A.D.2d 739, 739 (1st Dep’t 1962). Such a motion must 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.” C.P.L.R. § 3212(b).

The party seeking summary judgment must make a prima facie showing that

it is entitled to judgment as a matter of law. Pirrelli v. Long Island R.R., 226

A.D.2d 166, 166 (1st Dep’t 1996). If such a showing is made, 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.” Stukas v. Streiter, 83 A.D.3d 18, 25 (2d

Dep’t 2011). The opposing party “must produce evidentiary proof in admissible

form sufficient to require a trial of material questions of fact on which [she] rests

[her] claim.” Zuckerman v. City of New York, 49 N.Y.2d 557, 558-59 (1980).

“Speculative or conjectural evidence” is insufficient. Healey v. Firestone Tire &

Rubber Co., 87 N.Y.2d 596, 602 (1996).

-10-

The Court then determines, based “on the version of facts most favorable to

plaintiff,” whether there is a “material question of fact which precludes summary

judgment.” O’Connor-Miele v. Barhite & Holzinger, Inc., 234 A.D.2d 106, 106

(1st Dep’t 1996). “It is incumbent on the Court . . . to search the proof, if any,

proffered by affidavits or otherwise, to ascertain whether it discloses a real issue,

rather than a formal, perfunctory, or shadowy one.” Hirsch v. S. Berger Import

& Mfg. Corp., 67 A.D.2d 30, 34 (1st Dep’t 1979).

ARGUMENT

I. TO SURVIVE SUMMARY JUDGMENT, PLAINTIFF MUST

ADDUCE EVIDENCE OF “PROBABLE” EXPOSURE TO

ASBESTOS FROM A PRODUCT ATTRIBUTABLE TO UCC.

To succeed on a wrongful-death claim based on alleged exposure to

asbestos, a plaintiff must “establish that the decedent was exposed to the

defendant’s product” and “that the decedent’s injury was proximately caused by

the defendant’s asbestos.” Diel v. Flintkote Co., 204 A.D.2d 53, 54 (1st Dep’t

1994). The plaintiff must show that these facts are “reasonably probable, and not

merely possible or evenly balanced.” Healey, 87 N.Y.2d at 601 (emphasis added);

see also Abulhasan v. Uniroyal-Goodrich Tire Co., 14 A.D.3d 900, 901 (3d Dep’t

2005). 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]

-11-

awarded.” Diel, 204 A.D.2d at 54; see also Schiraldi v. U.S. Mineral Prods., 194

A.D.2d 482, 483 (1st Dep’t 1993) (summary judgment proper because of absence

of evidence that plaintiff was exposed to an asbestos-containing product

manufactured by the defendant).

II. THE EVIDENCE WOULD NOT PERMIT A JURY TO CONCLUDE

THAT IT IS “PROBABLE” THAT MR. KESTENBAUM WAS

EXPOSED TO ASBESTOS FROM A PRODUCT ATTRIBUTABLE

TO UCC.

For the purposes of this appeal, we will accept as true Mr. Kestenbaum’s

testimony that some of the plastic sheets he worked with at Cadillac were

purchased from UCC and manufactured from phenolic resins.5 In order to prevail

at trial, then, plaintiff would have to prove to the jury that it was “reasonably

probable”—more likely than not—that the plastic sheets allegedly purchased from

UCC contained asbestos. Healey, 87 N.Y.2d at 601. The evidence in the record

would not allow a reasonable jury to come to that conclusion.

5 Although not material to this appeal, UCC disputes that Mr. Kestenbaum

used finished plastic sheets that Cadillac purchased directly from UCC because

UCC did not sell finished plastic products. It sold phenolic resins, a component

material that third-party manufacturers combined with a reinforcing material—like

canvas, paper, or glass—to manufacture laminated plastic products, such as the

plastic sheets that Mr. Kestenbaum allegedly used. See R. 386-87.

-12-

A. Mr. Kestenbaum’s Testimony Cannot Establish That The Plastic

Sheets Contained Asbestos.

The trial court recognized (see R. 7-8) that there is nothing in Mr.

Kestenbaum’s testimony itself that would allow a jury to conclude that while

working for Cadillac, he was exposed to asbestos from a plastic sheet allegedly

purchased from UCC. As the trial court found, Mr. Kestenbaum “had no personal

knowledge whether those sheets actually contained asbestos” (id.), and he readily

admitted that no one other than his attorney told him that they did (R. 213 at

148-49). Indeed, he did know that at the request of Cadillac’s customers, he had

ordered sheets that “came in canvas, paper, [and] glass” (R. 192 at 122-24), which

are reinforcing materials distinct from asbestos. Mr. Kestenbaum’s testimony on

this subject is confirmed by UCC’s internal sales records, which do not indicate

any sales of asbestos-containing products by UCC to Cadillac during the period

Mr. Kestenbaum worked there (see R. 384 at 15-16), and by the absence in the

record of any Cadillac purchase records indicating a purchase of

asbestos-containing products from UCC.

B. The Evidence Cited By The Trial Court Cannot Establish That

The Plastic Sheets Contained Asbestos.

While acknowledging that Mr. Kestenbaum did not know whether he was

exposed to asbestos from a UCC product (see R. 7-8), the trial court nonetheless

concluded that plaintiff could survive summary judgment based on two pieces of

-13-

evidence: (1) “Mr. Martino’s testimony that approximately 40 percent of UCC’s

phenolic resins contained asbestos in 1969”; and (2) “Ms. Carrington’s testimony

regarding UCC’s fibrous resins” (R. 11). Neither of these pieces of evidence, even

if credited as true, would entitle a reasonable juror to conclude that it was more

likely than not that the plastic sheets Mr. Kestenbaum allegedly worked with

contained any asbestos. Again, the trial court itself found only that this evidence

showed that “there [wa]s enough to question” whether UCC’s phenolic resins

“were universally asbestos-free.” Id.

1. Mr. Martino’s Testimony

Even if the trial court’s interpretation of Mr. Martino’s testimony were

correct (but see n.4 supra), it would establish, at most, that 40% of the phenolic

resins made by UCC in 1969 contained asbestos, and thus that there is a less than

50% chance that the finished products Mr. Kestenbaum allegedly used contained

asbestos. By definition, that would not entitle a reasonable jury to conclude that

such a fact was “reasonably probable, and not merely possible or evenly balanced.”

Healey, 87 N.Y.2d at 601; see also Rinaldi & Sons, Inc. v. Wells Fargo Alarm

Serv., Inc., 39 N.Y.2d 191, 196 (1976) (“[A] 50% probability means that no one

result is any more likely than the other, as a matter of logical necessity, and

therefore as a matter of law.”); Diel, 204 A.D.2d at 54 (if the evidence presented at

summary judgment would not permit a reasonable juror to find by a preponderance

-14-

of the evidence “that the decedent was exposed to asbestos from the defendant’s

product, summary judgment should [be] awarded”).6

This Court came to an analogous conclusion in Peridicaro v. A.O. Smith

Water Products, 52 A.D.3d 300 (1st Dep’t 2008). In that case, 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 this Court reversed, 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.” 52 A.D.3d at 300 (emphases added).

Likewise, even construing Mr. Martino’s testimony as the trial court did, it

would clearly “indicate[]” that UCC’s phenolic resins “often contained . . .

6 It should also go without saying that a plaintiff cannot not survive summary

judgment without proffering evidence that would allow the jury to find in her favor

based on reasonable inference rather than speculation. See Healey, 87 N.Y.2d at

602; Zuckerman, 49 N.Y.2d at 559; Curran v. Esposito, 308 A.D.2d 428, 429 (2d

Dep’t 2003) (reversing a denial of summary judgment where the evidence would

permit the jury to “base a finding of proximate cause upon nothing more than

speculation”). The evidence cited by the trial court could not, by definition, lead

to the reasonable inference that the sheets Mr. Kestenbaum used probably

contained asbestos. To draw such a conclusion, the jury would need to engage in

guesswork.

-15-

components other than asbestos.” Id. In fact, it would mean that at least 60% of

the phenolic resins made by UCC in 1969 did not contain asbestos. As in

Perdicaro, plaintiff’s evidence is thus “insufficient to raise a factual issue whether”

Mr. Kestenbaum was exposed to an asbestos-containing product attributable to the

defendant (here, UCC). Id.

Similarly, in Williams v. AC&S, Inc., No. 107181/2001 (N.Y. Sup. Ct.), 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. 6/24/2010

Order, Williams, at 1.7 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, the same trial judge who denied UCC’s motion in this

case 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.” Id. 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.

7 By letter filed concurrently with this brief, UCC has requested judicial

notice of the order in Williams, which is unreported.

-16-

(quoting Healey). In other words, evidence that 25% of the defendant’s material

contained asbestos was insufficient to satisfy plaintiff’s burden of proving that the

particular product to which he allegedly was exposed contained asbestos, even

where a witness testified that it did.

Here too, even if Mr. Martino’s testimony were construed to mean that 40%

of the phenolic resins made by UCC in 1969 contained asbestos, that would not

make it “reasonably probable” that the plastic sheets Mr. Kestenbaum allegedly

worked with contained asbestos. If anything, Williams was a stronger case for the

plaintiff; there, a fact witness who actually worked with the gasket materials

testified (albeit based on hearsay) that they contained asbestos. There is no such

evidence here; as discussed above, Mr. Kestenbaum himself had no personal

knowledge to support his claim, and there are no sales records indicating that UCC

sold asbestos-containing products to Cadillac. If the defendant was entitled to

summary judgment in Williams, UCC is entitled to summary judgment in this case.

2. Ms. Carrington’s Testimony

The trial court also relied on Ms. Carrington’s testimony that she could not

tell, based on the 1960 document shown to her at her deposition, whether anyone

ever combined polystyrene “fibrous resins” with asbestos. R. 396 at 64-65

(emphasis added); see pp. 5-7 supra. That testimony is even less helpful to

plaintiff than Mr. Martino’s; it is wholly irrelevant. Even assuming that any UCC

-17-

polystyrene fibrous resins might have been combined with asbestos in 1960—

almost a full decade before Mr. Kestenbaum’s alleged exposure while working at

Cadillac from 1969 to 1972—there is no evidence that polystyrene fibrous resins

are the same as phenolic resins or that polystyrene fibrous resins were even used to

make laminate products. In fact, polystyrene fibrous resins and phenolic resins are

different materials, and plaintiff does not allege that Mr. Kestenbaum ever used

finished products made from polystyrene fibrous resins. Thus, a jury could not

possibly rely on Ms. Carrington’s testimony (or the 1960 document, which plaintiff

did not even submit to the trial court) to find it more likely than not that the plastic

sheets Mr. Kestenbaum allegedly used contained asbestos.

In any event, even if Mr. Kestenbaum had used products made with

polystyrene fibrous resins, the document presented at Ms. Carrington’s deposition

would not satisfy plaintiff’s burden for the same reason Mr. Martino’s testimony

does not. The document does not say that all fibrous resins contained asbestos; it

says that one such resin may have been combined with asbestos. That evidence

alone would not permit a reasonable jury to conclude that any particular product

made with polystyrene fibrous resins in 1960 contained asbestos, and certainly

would not permit the jury to conclude that it is reasonably probable that the plastic

sheets Mr. Kestenbaum allegedly used at Cadillac nearly a decade later contained

asbestos.

-18-

* * *

The trial court held that UCC was not entitled to summary judgment because

the evidence created a triable issue as to whether UCC’s phenolic resins “were

universally asbestos-free.” But as a matter of law, that is not enough. To avoid

summary judgment, plaintiff bore the burden of adducing evidence from which a

reasonable jury could conclude that it was reasonably probable that the plastic

sheets Mr. Kestenbaum allegedly used contained asbestos. She failed to do so.

CONCLUSION

This Court should reverse and remand with instructions to grant UCC’s

motion for summary judgment.

-19-

Dated: New York, New York

January 27, 2014

MAYER BROWN LLP

Scott A. Chesin

Michael Rayfield

1675 Broadway

New York, N.Y. 10019

(212) 506-2500

DARGER ERRANTE YAVITZ

& BLAU LLP

Jonathan Kromberg

116 East 27th Street, 12th Floor

New York, N.Y. 10016

(212) 452-5300

Attorneys for Defendant-Appellant Union

Carbide Corporation

PRINTING SPECIFICATIONS STATEMENT

I, Michael Rayfield, attorney for defendant-appellant Union Carbide

Corporation, hereby certify that this brief is in compliance with § 600.10(d)(1)(v).

The brief was prepared using Microsoft Word 2007. The typeface is Times New

Roman. The main body of the brief is in 14-point type. Footnotes and point

headings are in compliance with § 600.10(a)(3). The brief contains 4184 words as

counted by the Microsoft Word word-processing program.

Dated: New York, New York

January 27, 2014

SUPREME COURT OF TIlE STATE OF NEW YORKCOUNTY OF NEW YORK

IN RE NEW YORK CITYASBESTOS UTIOATION

NYCAL

ALICE KESTENBAUM, as Executrix of the Estate of Index No. 190421/2011FRANK KESTENBAUM,

Dt fREZ CORP., et al..

Appeal from:

County:

Judge:

PlaintilI-against-

Defendants.

Supreme COUrl

New York County

lion. Shcrry Klcin liciticr

PRE-ARGUMENTSTATEMENT

Index No: 190421/20 II (Alice Kestenbaum, as Ett:(:lIfrix l?ltlw Eslalt: l!lFrank Kt:stt:nhaum, Plainti fI)

Datc Notice of Appeal Filed: January 15,2014

[)at~ of Ordcr:

Date of Entry:

For Appellant:

For Respondent:

Related Appeals:

December 24, 2013

January 6, 2014

DARGER ERRANTE YAVITZ & BLAU LLPAttorneys lor Dcfendant Union Carbide CorporationI 16 East 271h Sl. 12th FloorNew York. New York 10016P: 212.452.5300F: 212.452.530 I

Levy Phillips & Konigsberg. L.L.P.800 Third AvenueNew York. New York 10022P: 212.605.6200F: 212.605.6290

None.

I>isposition of the Court Below:Defendant Union Carbide Corporation ("Union Carbidc") moved lor summary judgment,pursuant to N.Y. C.P.L.R. § 3212. in the malleI' of Alice KeslenhallJll. (1.\ E\'ecli/rix of fheE\'!afe (?{ Frank Keslenhaul11 (Index No. 190421/2011). Union Carbide argued that PlaintiffAlice Kestenbaum. as Executrix lor 1he Estate of frank Kestenbaum ("PlaintifT'), lailed 10present evidence, as required under New York law. to mect her burden to raise a genuine issueof material fact that the alleged injury to decedent frank Kestenbaum C·Mr. Kestenbaum")was caused by a Union Carbide product or any product manulactured by another companythat incorporated as an ingredient a material supplied by Union Carbide. In its decisionhowever, despite the fact that Plainti fT did not dispute this, the Court held that ··there is enoughto question UCCs position," such that the Union Carbide's Motion was denied.

Issucs to be Raised on APPC111:Given the absence of any triable issue of disputed material lact in the matter, did the Courterr in denying Union Carbide's Motion for Summary Judgment?

Defendant Union Carbide Corporation answers in the affirmative.

ATTORNEY'S CEI~TIFICATION

Thc undersigned hereby certifies that. to the best of the undersigned's knowledge,information. and belie!: formed alier a reasonublc in(lUiry under the circumstances, thepresentation of the within Pre-Argument Stutement and thc contentions herein is/arc notrrivolousas dcfined by ~2 N.Y.R.R. § 130-I.I(c).

Dated: January 15.2014New York, New York

By:

Respectfully submitted.

Jonat an KrombergKaren ullinaneDARGER ERRANTE YAVITZ & BLAU LLP116 East 27th Street. 121h floorNew York. New York 10016P: 212.452.5300F: 212.452.530 I

(·Olfl1.\'e1./<)r Dejenda11l Cnio11 ('"rhide ('0I1wrafiol1