Motion,Ex Parte: Patsy Young v. Aventis Inc., Avon Products, Inc., Block Drug Company, Inc. (Sued Individually And As Successor-In-Interest To The Gold Bond Sterilizing Powder Company A/K/A The Gold Bond Company), Block Drug Corporation (Sued Individually And As Successor-In-Interest To The Gold Bond Sterilizing Powder Company A/K/A The Gold Bond Company), Brenntag North America, Inc. (Sued Individually And As Successor-In-Interest To Mineral Pigment Solutions, Inc. And As Successor-In-Interest To Whittaker Clark & Daniels, Inc.), Brenntag Specialties, Inc. F/K/A Mineral Pigment Solutions, Inc. (Sued Individually And As Successor-In-Interest To Whittaker Clark & Daniels, Inc.), Charles B. Chrystal Company, Inc., Chattem, Inc. (Sued Individually And As Successor-In-Interest To Block Drug Corporation, Successor-In-Interest To The Gold Bond Sterilizing Powder Company A/K/A The Gold Bond Company), Colgate-Palmolive Company, Cyprus Amax Minerals Company (Sued Individually, Doing Business As, And As Successor To American Talc Company, Metropolitan Talc Co. Inc. And Charles Mathieu Inc. And Sierra Talc Company And United Talc Company), Cyprus Mines Corporation, Glaxosmithkline Llc (Sued Individually And As Successor-In-Interest To Block Drug Corporation, Successor-In-Interest To The Gold Bond Sterilizing Powder Company A/K/A The Gold Bond Company And As A Successor-In-Interest To Novartis Corporation And NOVARTIS CONSUMER HEALTH INC.), Gsk Consumer Health, Inc. F/K/A Novartis Consumer Health Inc. F/K/A Ciba Self-Medication, Inc., Insight Pharmaceuticals Corporation, A Subsidiary Of Prestige Brands Holdings, Inc., Insight Pharmaceuticals Llc, Macy'S Inc. F/K/A/ Federated Department Stores, Inc. (Sued Individually And As Successor-In-Interest To Twin Fair, Inc.), Novartis Corporation (Sued Individually And As A Successor-In-Interest To Ciba-Geigy Corporation And Its Subsidiaries Ciba Consumer Pharmaceuticals And Ciba Self-Medication, Inc.), Novartis Pharmaceuticals Corporation (Sued Individually And As Successor-In-Interest To Ciba-Geigy Corporation And Its Subsidiary Ciba Consumer Pharmaceuticals), Prestige Brands Holdings, Inc., Prestige Consumer Healthcare Inc. F/K/A Prestige Brands, Inc., Sanofi-Aventis U.S. Llc (Sued Individually And As Successor By Merger To Aventis Pharmaceuticals Inc.), Sanofi Us Services, Inc., Whittaker Clark & Daniels, Inc.

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                                FILED: ERIE COUNTY CLERK 03/03/2023 01:47 PM                                                         INDEX NO. 815818/2020
NYSCEF DOC. NO. 84                                                                          RECEIVED NYSCEF: 03/03/2023




          SUPREME COURT OF THE STATE OF NEW YORK
          COUNTY OF ERIE
                                             :
           PATSY YOUNG,                      :
                                             :
                                 Plaintiff,  :
                                             :                                   Index No. 815818/2020
           - against -                       :
                                             :
           AVENTIS INC., et al.,             :
                                             :
                                 Defendants. :
                                             :


           MEMORANDUM OF LAW OF DEFENDANT CHARLES B. CHRYSTAL COMPANY,
                 INC., IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

                   This product liability action arises out of a claim by Plaintiff, Patsy Young, that she

          developed peritoneal mesothelioma as a result of her alleged exposure to asbestos-containing

          products. Plaintiff named defendant Charles B. Chrystal Company, Inc. (hereinafter “CBC” or

          “Defendant”), as an entity that allegedly manufactured, sold, or distributed asbestos-containing

          products to which she was exposed. CBC seeks summary judgment pursuant to C.P.L.R.§ 3212(b),

          on the grounds that no genuine issue of material fact exists and that Plaintiff has failed to demonstrate

          a prima facie case in product liability against it.

                                     STATEMENT OF FACTS AND PROCEDURAL HISTORY

                   Plaintiff initiated this action against numerous defendants by filing a Verified Complaint in

           the Supreme Court of the State of New York, Erie County, on or about December 10, 2020. In the

           Complaint, Ms. Young asserts causes of action against CBC sounding in negligence, strict products

           liability,   fraudulent    misrepresentation/concealment/conspiracy        to    commit      fraudulent

           misrepresentation and concealment, and punitive damages. Affirmation of Nancy McDonald




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          (hereinafter “McDonald Aff.”), ¶3, Ex. A. On October 18, 2021, CBC filed a Verified Answer.

          McDonald Aff. ¶4, Ex. B.

                Plaintiff served Answers to Interrogatories on or about January 21, 2021. McDonald Aff.

          ¶5, Ex. C. Plaintiff did not identify CBC as a supplier, manufacturer, or seller of any asbestos or

          asbestos-containing product to which she was exposed.

                Plaintiff appeared for a discovery deposition on February 11, 12, and 16, 2021. She

          appeared for a videotaped de bene esse deposition on April 28, 2021. McDonald Aff. ¶6, Ex. D.

          In her testimony, Ms. Young did not identify CBC as a supplier, manufacturer, or seller of any

          asbestos or asbestos-containing product to which she was exposed. Id.

                Plaintiff contends she was exposed to asbestos from her use of various brands of talcum

          powder products. During her depositions, Plaintiff testified that she used or was present when

          others used the following talcum powder products: Johnson & Johnson Baby Powder, Cashmere

          Bouquet powder, Avon’s Skin So Soft, Topaze, Charisma, Wild Country, and Cotillion powders,

          and Gold Bond powder. Plaintiff also testified that she used Johnson’s Baby Powder on her

          children and others’ children for whom she babysat as well as Caldesene powder on her

          grandmother. McDonald Aff. ¶ 6, Exhibit D.




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                                                    ARGUMENT

       SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE THERE IS NO EVIDENCE
          THAT PLAINTIFF WAS EXPOSED TO AN ASBESTOS CONTAINING PRODUCT
             DESIGNED, MANUFACTURED, SUPPLIED, OR DISTRIBUTED BY CBC


                 Under well-established New York law, summary judgment is appropriate where the plaintiff

          fails to establish a connection between the defendant and the injury-causing product. It is axiomatic

          that a plaintiff in a products liability action is required to identify the specific defendant whose

          product caused the alleged injury. See Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 504, 541

          N.Y.S.2d 941, 945, cert. denied, 493 U.S. 944, 110 S.Ct. 350, 107 L.E.2d 338 (1989); Morrisey v.

          Conservative Gas Corp., 136 N.Y.S.2d 844, 285 A.D. 825, aff’d, 1 N.Y.2d 741, 152 N.Y.S.2d 289

          (1955); Healy v. Firestone Tire & Rubber Co., 87 N.Y. 2d 596, 601, 640 N.Y.S.2d 860, 862 (1996).

          To prevail in an action arising from alleged exposure to asbestos, plaintiffs must show actual

          exposure to asbestos fibers from a particular defendant’s product. Cawein v. Flintkote Co., 203

          A.D.2d 105, 106 (1st Dept. 1994). The plaintiff must show he or she was present in the vicinity

          where a defendant’s asbestos-containing product was being used and was exposed to asbestos

          from that product. See Comeau v. W.R. Grace & Co., 216 A.D.2d 79 (1st Dept. 1995); see also

          Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448-449 (2006). The identification of the offending

          product must be made with near certainty, not “mere possibility.” See Healey, supra, 87 N.Y. 2d

          at 601-602 (1996) (explaining that plaintiff must show that it is probable, not merely possible or

          evenly balanced, that defendant made the offending product; speculative proof is not enough).

                 In this case, Plaintiff has failed to present any admissible evidence identifying CBC as a

          source of her alleged exposure to asbestos. Plaintiff did not identify CBC as a source of her

          exposure to asbestos in either her answers to interrogatories or her deposition testimony. No other



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          evidence has been produced that identifies CBC as a source of Plaintiff’s alleged asbestos

          exposure.

                  At the summary judgment stage, a plaintiff may not stand on mere allegations of exposure

          and causation. Rather, she must come forward with some evidence creating a reasonable inference

          that she was exposed to a specific product and that such exposure resulted in her injury or death.

          Cawein, supra, 203 A.D.2d at 106, 610 N.Y.S.2d at 488. Plaintiff has not done so in this case.

          Accordingly, summary judgment is warranted and Charles B. Chrystal Company Inc.’s Motion

          for Summary Judgment should be granted.
                                               CONCLUSION

                  For the foregoing reasons, Defendant Charles B. Chrystal Company, Inc. respectfully

          requests that the Court enter an order granting summary judgment, dismissing the Complaint and

          all cross-claims against it.

                  Dated: March 3, 2023
                         New York, New York

                                                       McELROY, DEUTSCH,               MULVANEY          &
                                                       CARPENTER, LLP

                                                       By: /s/ Nancy McDonald
                                                       Nancy McDonald, Esq.
                                                       Attorneys for Defendant
                                                       Charles B. Chrystal Company, Inc.
                                                       225 Liberty Street, 36th Floor
                                                       New York, New York 10005
                                                       Telephone: (212) 483-9490




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