210 E. 86th St. Corp. v. Combustion Engineering

Citation821 F. Supp. 125
Decision Date31 March 1993
Docket NumberNo. 87 Civ. 6497 (VLB),87 Civ. 6498 (VLB).,87 Civ. 6497 (VLB)
Parties210 EAST 86TH STREET CORP., Plaintiff, v. COMBUSTION ENGINEERING, INC., et al., Defendants. PARK COMCAR ASSOCIATES, et al., Plaintiffs, v. COMBUSTION ENGINEERING, INC., et al., Defendants.
CourtU.S. District Court — Southern District of New York

David B. Turret, Julien & Schlesinger, New York City, for plaintiffs.

LeBoeuf, Lamb, Leiby & MacRae, New York City, for Lac d'Amiante du Quebec, Ltee; Thomas Fenerty, of counsel.

Picillo, Bromberg & Caruso, Fairfield, NJ, for Basic Inc. and Combustion Engineering, Inc.; Arthur D. Bromberg, of counsel.

Skadden, Arps, Slate, Meagher & Flom, New York City, for Flintkote Co.; Gary E. Crawford and Bert L. Wolff, of counsel.

Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, for Asbestospray Corp., Asbestos Products Mfg. Corp. and Spraycraft Corp.; E. Paul Dougherty and Robert Joyce, of counsel.

Winick & Rich, Hackensack, NJ, for Asbestos Corp., Ltd.; Abraham Y. Skoff, of counsel.

James W. Harbison, Morgan, Lewis & Bockius, New York City, for defendants.

Calinoff & Katz, New York City, for Proko Industries, Inc.; Arnold Katz and Leejanice Tobak, of counsel.

Danaher, Tedford, Lagnese & Neal, P.C., New York City, for U.S. Mineral Products Co.; Paul Slater, of counsel.

Dechert Price & Rhoads, New York City, for ACandS, Inc.; Jeffrey S. Lyons, of counsel.

Gollatz, Griffin, Ewing & McCarthy, Philadelphia, PA, for ACandS, Inc.; Michael V. Gilberti, of counsel.

Haythe & Curley, New York City, for T & N plc. and J.W. Roberts Ltd.; Charles E. Dorkey, III and Todd L. Schleifstein, of counsel.

Holtzmann, Wise & Shepard, New York City, for Georgia-Pacific Corp.; David R. Foley and David J. Freeman, of counsel.




These cases, involving suits against a large number of firms allegedly involved directly or indirectly in various stages of asbestos mining, manufacturing or distribution, are before me on a Report and Recommendation of United States Magistrate Judge Kathleen A. Roberts dated December 9, 1992 recommending the grant of summary judgment to the moving defendants. The products of the defendants in these cases have not been specifically traced to plaintiffs' premises.

For the reasons set forth by the Magistrate Judge and the further reasons which follow, I approve and adopt her Report and Recommendation, overrule plaintiffs' objections to it, and grant summary judgment dismissing the complaint as to the moving defendants.1 The full caption of these cases is set forth as Appendix A to this memorandum order.

Plaintiffs are directed to show cause within 30 days of the date of this memorandum order why this case should not be dismissed as to the remaining defendants.


Plaintiffs have failed to show that any specific moving defendants were responsible for asbestos reaching their premises. Instead, they argue that such specific identification is difficult or impossible, and that the possibility that these defendants were responsible, together with their participation in varying aspects of asbestos mining, manufacturing, or distribution, is sufficient to support this lawsuit. In support of this contention, plaintiffs urge various approaches to determining so-called "alternative liability," based on market share, participation in illegal activities, concerted action, conspiracy, and/or contributory causation of harm. These contentions are discussed in detail in Magistrate Judge Roberts' Report and Recommendation at 40-55. I need not repeat her analysis; I incorporate her Report and Recommendation and make it part of this memorandum order.


Plaintiffs' objections to Judge Roberts' Report and Recommendation rely in part on Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069 (1989), cert. denied 493 U.S. 944, 110 S.Ct. 350, 107 L.Ed.2d 338 (1989). In that case the New York Court of Appeals indicated that while "it may be fair to employ alternative liability in cases involving only a small number of potential wrongdoers, that fairness disappears with the decreasing probability that any one of the defendants actually caused the injury."2 Given the number of entities involved in one or another aspect of the asbestos industry, all of whom might be liable according to plaintiffs' theory, Hymowitz would support adoption of Judge Roberts' recommendation to dismiss the case.

Plaintiffs also rely on In re Agent Orange Product Liability Litigation, 597 F.Supp. 740, 823 (E.D.N.Y.1984) which concerned the herbicide Agent Orange, but which mentioned asbestos cases as potentially suitable for allocation of percentages of harm caused by industry members. As pointed out by Judge Roberts in her Report and Recommendation at 40-43, market share liability has been rejected in all asbestos cases to date for numerous practical reasons, including the fact that asbestos is not a unitary product with identical content, as is DES or Agent Orange.

Even more important may be that those in the manufacturing and distribution phases of the pharmaceutical and insecticide industries can be held to knowledge of the precautions required in connection with their products. Through its regulatory requirements, Congress has made it clear to manufacturers and distributors in such industries that they are responsible for careful treatment of their wares. See United States v. Generix Drug Corp., 460 U.S. 453, 103 S.Ct. 1298, 75 L.Ed.2d 198 (1983). Where controlled items are involved, adverse inferences supporting liability can be drawn from irresponsible behavior. Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943). Where, as here, however, there is no showing that those sought to be held liable had reason to regard the product involved as a staple with particular hazards, such inferences are inappropriate. United States v. Falcone, 109 F.2d 579 (2d Cir.), aff'd 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940).

Plaintiffs have not argued that during the periods when it was placed in their buildings, asbestos was generally known to be a hazardous item. There is no indication that asbestos was generally recognized by defendants here or by the public at the time involved as an item which carried risks calling for further inquiry or special caution.


Plaintiffs claim, however, that some members of the asbestos industry knew of risks connected with asbestos and acted to suppress information with respect to that knowledge during a period from the 1930s into the 1950s. They base that claim largely on B. Castleman, Asbestos: Medical and Legal Aspects 681-88 and documentary appendix at 263-270. In Solow v. W.R. Grace & Co., Index No. 2453/88, Sup.Ct.N.Y.Co., 7/1/89, 1090 NY Misc LEXIS, Justice Harold Baer, Jr.3 recognized that conspiratorial efforts to suppress knowledge of risks concerning a product could be actionable, but dismissed the complaint because of absence of specific allegations that the named defendant in that case was involved in the alleged conspiracy.

The New York Court of Appeals has endorsed a market share approach as to one defendant in a DES case involving failure to test a product; the court's rationale was that overlooking the failure to test a powerful pharmaceutical product would encourage other companies to act imprudently or improperly. Bichler v. Eli Lilly & Co., 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182 (1982).

Dissemination of asbestos at a time when industry members should have realized that asbestos posed hazards is specifically claimed by plaintiffs in this case only in regard to U.S. Gypsum, based on exhibits cited in plaintiff's objections at 7, footnote 7. Those exhibits, derived from Castleman's study, do not appear to mention Gypsum by name, although entities mentioned in them may have been affiliated with Gypsum in ways not traceable from the materials cited by plaintiffs in their objections to Judge Roberts' recommendations.

Cognizable under Solow and Bichler would be a claim for damages traceable to deliberate concealment by a defendant member of an industry; also cognizable would be a claim against an industry member that downstream injury, directly administered by another party, was triggered by concealment by the industry member of serious risks concerning a product, contributing to harm to the plaintiffs. See also Nicolet v. Nutt, 525 A.2d 146 (Del.1987). In an industry in which it is foreseeable that one actor can and will rely on what has been learned by others about hazards,4 deafening silence where an alarum would be required or expected can be highly misleading.5 But on the present motion for summary judgment, no specific evidence has been shown sufficient to create a genuine issue of material fact with respect to liability on the part of the particular defendants sued. It was the duty of plaintiffs to make such a showing or to indicate specifically what further discovery might enable them to make it, if they were to survive defendants' motions. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).


As outlined in Judge Roberts' careful analysis in her Report and Recommendation, authority does not favor permitting lawsuits to proceed against parties without traceable responsibility where there is no evidence of specific deliberate wrongdoing on their part, and where the product involved was not generally known as hazardous at the time of their possible involvement. Courts, however, can and do confront new dilemmas with innovative remedies where the need for those remedies flows from, rather than contradicts, prior principle. In concluding that this is not a case calling for extension of legal liability to the outer limits — an extension which would be necessary to sustain plaintiffs' position — I am mindful that this leaves building owners without recourse to the asbestos industry for harm caused by the product where the source of...

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