Lotrean v. 3M Co.

2024 NY Slip Op 31484(U)

• Court: New York Supreme Court, New York County
• Decided: April 26, 2024
• Docket: Index No. 652259/2022
• Status: Unpublished

Opinion

Lotrean v 3M Co. 2024 NY Slip Op 31484(U) April 26, 2024 Supreme Court, New York County Docket Number: Index No. 153361/2020 Judge: Nancy M. Bannon Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 153361/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 04/26/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. NANCY M. BANNON PART 61 Justice ---------------------------------------------------------------------------------X INDEX NO. 153361/2020 MARINEL LOTREAN and MARIE LOTREAN, MOTION DATE 12/13/2023 Plaintiffs, 022 023 024 -v- MOTION SEQ. NO. 025 026 027

3M COMPANY F/K/A MINNESOTA MINING AND MANUFACTURING, a Delaware Corporation with its principal place of business in the State of Minnesota, ALBERT KEMPERLE, INC., a New York Corporation with its principal place of business in the State of New York, ATLANTIC RICHFIELD COMPANY, a Delaware Corporation with its principal place of business in the State of Texas, CHEVRON U.S.A. INC, a Penflvania Corporation with its principal place of business in the State of California, CHEVRON PHILLIPS CHEMICAL COMPANY LP, a Delaware Corporation with its principal place of business in the State of Texas, E.I. DU PONT DE NEMOURS AND COMPANY, a Delaware Corporation with its principal place of business in the State of Delaware, EXXON MOBIL CORPORATION, a New Jersey Corporation with its principal place of business in the State of Texas, H. EDELSTEIN AUTOMOTIVE SUPPLY INC., a New York Corporation with its principal place of business in the State of New York, PPG INDUSTRIES, INC., a Pennsylvania Corporation with its DECISION + ORDER ON principal place of business in the State of Pennsylvania, MOTION RUST-OLEUM CORPORATION, SUED INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO RUST-OLEUM CORPORATION, a Delaware Corporation with its principal place of business in the State of Illinois, SAFETY-KLEEN SYSTEMS, INC., a Delaware Corporation with its principal place of business in the State of Massachusetts, SHELL OIL COMPANY, a Delaware Corporation with its principal place of business in the State of Texas, ZEP INC., SUED INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO ACUITY SPECIALTY PRODUCTS, A DIVISION OF ACUITY BRANDS, INC., SUCCESSOR-IN-INTEREST TO LIGHTING EQUIPMENT AND CHEMICAL DIVISIONS OF NATIONAL SERVICES INDUSTRIES, INC., D/B/A ZEP MANUFACTURING F/K/A NATIONAL LINEN SERVICE CORPORATION, a Delaware Corporation with its principal place of business in the State of Georgia,

Defendants. ---------------------------------------------------------------------------------X

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The following e-filed documents, listed by NYSCEF document number (Motion 022) 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 648, 654 were read on this motion to/for JUDGMENT - SUMMARY .

The following e-filed documents, listed by NYSCEF document number (Motion 023) 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449, 450, 512, 513, 514, 515, 516, 517, 518, 519, 520, 521, 522, 523, 524, 525, 526, 527, 528, 529, 530, 531, 532, 533, 534, 535, 568, 569, 570, 571, 572, 649, 655 were read on this motion to/for JUDGMENT - SUMMARY .

The following e-filed documents, listed by NYSCEF document number (Motion 024) 451, 452, 453, 454, 455, 456, 457, 458, 536, 537, 538, 539, 540, 541, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 554, 555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 565, 566, 567, 573, 574, 575, 576, 577, 578, 579, 580, 581, 582, 650, 656 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .

The following e-filed documents, listed by NYSCEF document number (Motion 025) 459, 460, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 508, 509, 510, 511, 583, 584, 585, 586, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 597, 598, 599, 600, 601, 602, 603, 604, 644, 645, 646, 647, 651, 657 were read on this motion to/for JUDGMENT - SUMMARY .

The following e-filed documents, listed by NYSCEF document number (Motion 026) 492, 493, 494, 495, 496, 497, 498, 499, 500, 501, 502, 503, 504, 505, 506, 507, 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 639, 640, 642, 652, 658 were read on this motion to/for JUDGMENT - SUMMARY .

The following e-filed documents, listed by NYSCEF document number (Motion 027) 473, 474, 475, 476, 477, 478, 479, 480, 481, 482, 483, 484, 485, 486, 487, 488, 489, 490, 491, 609, 610, 611, 612, 613, 614, 615, 616, 617, 618, 619, 620, 621, 622, 623, 624, 625, 626, 627, 641, 643, 653, 659 were read on this motion to/for JUDGMENT - SUMMARY .

INTRODUCTION

Motion sequence nos. 022, 023, 024, 025, 026 and 027 are consolidated for disposition.

Plaintiff Marinel Lotrean (plaintiff) and his wife Marie Lotrean (Marie), derivatively,

(together, plaintiffs) bring this action for negligence and products liability against defendants for

designing, manufacturing, or selling auto body products that allegedly contained benzene or for

supplying solvents containing benzene that were used in the manufacture of those products.

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In motion sequence no. 022, defendant Exxon Mobil Corporation (ExxonMobil) move,

pursuant to CPLR 3212, for summary judgment dismissing the complaint.

In motion sequence no. 023, defendant Atlantic Richfield Company (Arco) moves,

pursuant to 3212, for summary judgment dismissing the complaint and cross-claims against it.

In motion sequence no. 024, defendant Zep Inc. (Zep), sued individually and as

successor-in-interest to Acuity Specialty Products, a division of Acuity Brands, Inc., successor-

in-interest to Lighting Equipment and Chemical Divisions of National Services Industries, Inc.,

D/B/A Zep Manufacturing F/K/A National Linen Service Corporation, moves, pursuant to CPLR

3212, for summary judgment dismissing the complaint.

In motion sequence no. 025, defendant Rust-Oleum Corporation (Rust-Oleum), sued

individually and as successor-in-interest to Rust-Oleum Corporation, moves, pursuant to CPLR

3212, for summary judgment dismissing the complaint and the cross-claims against it.

In motion sequence no. 026, defendant E.I. DuPont de Nemours and Company (DuPont)

moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and the cross-

claims against it.

In motion sequence no. 027, defendant Shell Oil Company (Shell) moves, pursuant to

CPLR 3212, for summary judgment dismissing the complaint and the cross-claims against it.

BACKGROUND

Plaintiff was born in 1972 (NYSCEF Doc No. 409, Chester-Schindler affirmation, exhibit

1, plaintiff deposition tr at 16). Plaintiff’s father, Jon Lotrean (Jon), was employed at Camera

Auto Body (Camera), an auto body shop with two locations in Queens, New York, from

February 1979 through October 1993 (NYSCEF Doc No. 410, Chester-Schindler affirmation,

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exhibit 2, Jon deposition tr at 14-17). Plaintiff accompanied his father to Camera’s second

location approximately 12 times between 1979 and 1982, and beginning in 1982, plaintiff began

performing tasks, such as sweeping and cleaning, for pay (NYSCEF Doc No. 409 at 96-98).

When plaintiff was 10 years old, Jon taught him how to repair dents in motor vehicles (id. at 99-

100). By age 12, plaintiff was “laying down primer, doing dent repairs … [and had] even started

putting color down” (id. at 100). Plaintiff described himself as a “combo man” splitting his time

equally between body work and painting (id. at 120 and 123). Throughout junior high and high

school, plaintiff worked at Camera’s main location from 4 p.m. to 7 p.m. three to five days a

week, all day Saturdays, full-time during Thanksgiving and Christmas vacations, and 40 to 80

hours a week every summer except in 1984 (id. at 106, 108-110, 168 and 285-286). Plaintiff

also worked at Camera through college, though it was “hard to estimate” how frequently he was

there (id. at 291). From 1992 to January 1995, plaintiff worked at Cooper Collision, his father’s

auto body shop in Queens (id. at 90-91).

Plaintiff alleges that he used products manufactured by defendants 3M Company f/k/a

Minnesota Mining and Manufacturing (3M), PPG Industries, Inc. (PPG), DuPont, Rust-Oleum,

Safety-Kleen Systems, Inc. (Safety-Kleen) and Zep at Camera. Defendants Chevron U.S.A. Inc.,

Chevron Phillips Chemical Company LP, Arco, ExxonMobil and Shell allegedly supplied

solvents that were incorporated into those products. Camera purchased the finished products

from defendants Albert Kemperle, Inc. (AKI) and H. Edelstein Automotive Supply Inc. (HEAS)

(NYSCEF Doc No. 409 at 588; NYSCEF Doc No. 411, Chester-Schindler affirmation, exhibit 3,

aff of Albert Kemperle [Kemperle] ¶ 4; NYSCEF Doc No. 468, Sena affirmation, exhibit H,

Barry Edelstein [Edelstein] deposition tr at 10). Camera also ordered Zep products directly from

Zep (NYSCEF Doc No. 410 at 189; NYSCEF Doc No. 411, ¶ 4).

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While residing in the Netherlands in 2009, Marie observed petechiae, or red spots, on

plaintiff’s legs (NYSCEF Doc No. 466, Sena affirmation, exhibit E, Marie deposition tr at 33).

Plaintiff’s physicians informed him that he had a low blood platelet level (NYSCEF Doc No. 409

at 137). Blood tests and a bone marrow biopsy performed at that time were negative for

leukemia, HIV, lupus and cancer (id. at 140; NYSCEF Doc No. 466 at 33). Plaintiff’s platelet

count remained below normal levels (NYSCEF Doc No. 409 at 137; NYSCEF Doc No. 466 at

38). On May 10, 2017, plaintiff was diagnosed with myelodysplastic syndrome (MDS)

(NYSCEF Doc No. 1, ¶ 24).

Plaintiffs concede that raw or pure benzene was not an ingredient in the products at issue

(NYSCEF Doc No. 626, plaintiffs’ response to Shell statement of material facts, ¶ 6; NYSCEF

Doc No. 639, plaintiffs’ response to DuPont statement of material facts, ¶ 5). Instead, plaintiffs

allege that solvents derived from petroleum and contaminated with benzene were incorporated

into the auto body products plaintiff used at Camera.

Camera Auto Body

Camera’s main location was comprised of four buildings (NYSCEF Doc No. 409 at 61).

A brick building where painting took place was 75-feet wide, had 20-foot-high ceilings, and

could accommodate two vehicles, workbenches and air compressors (id. at 61-62 and 68).

Plaintiff could not recall if a fan blew air outside, but two bay doors led out to Metropolitan

Avenue (id. at 77-78). Painters washed their hands with thinner in an adjacent area (id. at 63-

64). A corrugated tin structure for paint and body work measured five car lengths long, two car

lengths high, and had an eight- to 10-foot ceiling (id. at 64, 68 and 72). In 1986 or 1987, Camera

erected a wall to create a paint booth (id. at 73) and installed a machine for mixing DuPont paint

(id. at 117). There was no HVAC system, though a fan blew air out onto the street, and there

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were two rollup doors (id. at 74). Another space in this area could accommodate one vehicle and

was accessible from a garage door (id. at 64-65). The last building, which was used for

bodywork, could accommodate up to six vehicles; a bay door led onto the street and a second

door led to an adjacent used car lot (id. at 65-66 and 80). This building was not equipped with

professional ventilation, though fans were set up for cooling in the summer (id. at 80).

DuPont

Camera purchased 55-gallon barrels of thinner manufactured by DuPont from AKI1

(NYSCEF Doc No. 409 at 47; NYSCEF Doc No. 411, ¶ 6). Employees used thinner to clean

their hands, to clean auto parts and to “thin[ ] out” primer or paint (NYSCEF Doc No. 409 at 36-

38, 47-48 and 171).

Camera purchased Prep-Sol, a less expensive thinner or degreaser manufactured by

DuPont, from AKI (NYSCEF Doc No. 412, Chester-Schindler affirmation, exhibit 3, Kemperle

deposition tr at 41; NYSCEF Doc No. 410 at 36-38 and 159). Plaintiff testified that he would

soak a rag with Prep-Sol to clean vehicles before applying primer and paint, to remove grease,

and to remove paint from his face and hands (NYSCEF Doc No. 409 at 334-337). He also used

a “solvent” that was not labeled Prep-Sol in the same manner half the time (id. at 527-528).

Camera purchased DuPont paint, including an acrylic “Lucite” paint, and gray- and

black-colored primers from AKI (NYSCEF Doc No. 410 at 39-40; NYSCEF Doc No. 412 at 26;

NYSCEF Doc No. 411, ¶ 5). Although plaintiff could not recall a specific brand of DuPont paint

(NYSCEF Doc No. 409 at 116), Jon stated they used DuPont lacquer and enamel paints

(NYSCEF Doc No. 410 at 54-55 and 88-89). Plaintiff explained that it took two minutes to mix

1 Edelstein identified Fein Paint as HEAS’s primary supplier for thinner; Fein Paint is no longer in business (NYSCEF Doc No. 468 at 18). HEAS also purchased supplies from PPG in 1987 (id.). When asked if HEAS placed its own logo on the thinners it sold, Edelstein replied, “[i]f it was sold by me, it was my brand. If Fein Paint made it, it had their own thinner on it” (id. at 19). 153361/2020 LOTREAN, MARINEL vs. 3M COMPANY F/K/A MINNESOTA Page 6 of 45 Motion No. 022 023 024 025 026 027

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thinner and primer in a spray gun and two minutes to apply a single coat of primer, which he

could repeat two to three times per vehicle (id. at 120-121). After mixing paint with thinner, it

would take three minutes to apply a single coat of colored paint, which could be repeated three to

five times per vehicle, before adding a clear coat on top (id. at 121-122). Plaintiff cleaned the

spray guns with thinner by running it through a Safety-Kleen machine or by soaking the parts in

thinner and spraying thinner through the nozzle (id. at 478-480 and 509).

“Thin” masks, “3M-type” N95 masks and dual cartridge-style respirators were available

at Camera (id. at 110-111, 113-114 and 223). Plaintiff testified that he was not given a fit test for

the N95-type mask or the cartridge-style respirator, was never instructed on how to use the

cartridge-style respirator and was never told to replace the filters (id. 116 and 241). Plaintiff

wore respiratory protection when painting, sanding and grinding, though the length of time he

wore such protection varied each day2 (id. at 223-225). He would not wear a mask when

walking through an area where painting was taking place (id. at 226-227). He used the N95-type

mask while painting and applying primer in the paint booth, though he would not wear a mask at

all for smaller jobs (id. at 243-244 and 246). Plaintiff testified that he “felt dizzy” wearing the

respirator when painting (id. at 115). He would “suit up” for a full paint job, but not when

painting for smaller panels (id. at 111-112).

DuPont’s corporate representative, Carl Brent Douglas, Ph.D (Dr. Douglas),3 testified

that the Performance Coatings section of DuPont’s Fabrics & Finishes Department manufactured

paints, thinners and Prep-Sols for the auto body industry (NYSCEF Doc No. 394, Riccardulli

2 Plaintiff believed DuPont manufactured three products used to repair dents in motor vehicles – “Dynalite,” a green fiberglass filler, and orange putty (NYSCEF Doc No. 409 at 51-53). According to Kemperle, Dynatron Bondo Co., now owned by 3M, manufactured Dynalite (NYSCEF Doc No. 411, ¶ 8). 3 DuPont sold its Performance Coating Section to the Carlyle Group in 2013, which renamed it Axalta Coating Systems (NYSCEF Doc No. 394 at 17). Axalta Coating Systems employs Dr. Douglas. 153361/2020 LOTREAN, MARINEL vs. 3M COMPANY F/K/A MINNESOTA Page 7 of 45 Motion No. 022 023 024 025 026 027

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affirmation, exhibit F, Dr. Douglas deposition tr at 14-16 and 152). DuPont manufactured and

sold different lines of auto body paints between 1982 and 1993, including “Centari” enamel paint

and Lucite acrylic lacquer paint marketed to motor vehicle refinishers like Camera (id. at 45-47).

From the testimony of plaintiff, Jon and Kemperle, Dr. Douglas believed that Lucite, and

possibly Centari, paints and 100-S and 131-S acrylic lacquer primers were used at Camera (id. at

48-51 and 59). Based on their proximity to New York, Dr. Douglas assumed that DuPont’s

plants in Flint, Michigan, Toledo, Ohio, and Front Royal, Virginia manufactured Lucite paints, a

plant in Parlin, New Jersey manufactured acrylic thinner, and the Front Royal plant

manufactured primers for the New York market (id. at 67, 69-71 and 73). Thinners and reducers,

both of which were mixtures of solvents, were manufactured in those same plants (id. at 78-79

and 182-183).

DuPont manufactured Prep-Sol 2 Cleanup Solvent 3929S and Prep-Sol Solvent 31919S

between 1982 and 1993 (id. at 174). Based on their testimony, Dr. Douglas believed plaintiff

and Jon used Prep-Sol Solvent 31919S (id. at 176). Dr. Douglas believed DuPont manufactured

Prep-Sol at its Parlin, Toledo and Front Royal plants for the New York market (id. at 77).

Dr. Douglas testified that a hydrocarbon is an organic compound that may be refined

from crude oil, a process that involves heating crude oil until it fractures or cracks into different

substances (id. at 39-40). Benzene is a substance produced during the refining process (id. at

41). Dr. Douglas stated that xylene, which is a “parent solvent,” is not derived from benzene,

though it is made from processing crude oil (id. at 43). Xylene is its own unique material, but it

may carry a trace amount of benzene from the refining process (id.). DuPont’s auto body paint

products contained different hydrocarbon-based solvents, and xylene is in many of DuPont’s

auto body paints and binders (id. at 37, 44, 88-89, 98-99 and 144).

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DuPont’s raw material specification sheets to its suppliers set a 0.1 percent maximum for

benzene (id. at 159-160). Dr. Douglas testified that in February 1973, DuPont tested batches of

the hydrocarbon-based solvents toluene (H-49), mineral spirits (H-583 and H-287), xylol/xylene

(H-583) and Solvesso 150 (H-601) it purchased for their benzene content4 (id. and 163). In

1978, DuPont conducted three spray-out tests of its Lucite paint and took both liquid and

airborne samples to test for benzene (id. at 171-172). Dr. Douglas was unaware of similar tests

performed with Centari paint (id. at 172). DuPont conducted additional testing in 1983 to

measure the solvents it purchased for their benzene content (id. at 158). DuPont did not test

Prep-Sol to determine if benzene was a contaminant (id. at 180). DuPont was unable to locate

any certificates of analysis on tests conducted between 1982 and 1993 (id. at 184).

DuPont’s purchasing department kept lists of approved suppliers to ensure that there was

enough supply of a particular solvent or its equivalent (id. at 132-133 and 191). Selecting a

supplier from which to purchase a solvent depended upon availability and pricing (id. at 134).

DuPont listed its approved suppliers and distributors, or companies that resold materials, on raw

material specification sheets (id. at 145-146 and 166-167). As an example, the specification

sheet for Aromatic Controlled VM&P Naphtha-E.O.R. (H-425) from 1981 identified Shell

Chemical Company, Petrochemicals Division, as a supplier (id. at 152-153).

Dr. Douglas explained there was no way DuPont could trace which supplier’s solvents

made their way into its products because DuPont no longer had business records from 1982 to

1993 (id. at 146 and 192-194), and several plants were no longer in operation (id. at 72). The

records would have included delivery lot numbers for raw materials and a specific batch number

for the finished product (id. at 146). Dr. Douglas could not state which entity supplied the

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solvents incorporated into Lucite paints between 1982 and 1993 (id. at 145). Dr. Douglas also

testified that neither ExxonMobil nor Arco designed or manufactured DuPont’s products (id. at

192-193).

Rust-Oleum

Rust-Oleum manufactured “Stop Rust Automobile Primer” (Stop Rust), an aerosol spray

used to prevent rust on bare metal on the underbody of a vehicle (NYSCEF Doc No. 409 at 294-

295 and 306). Although the number of times plaintiff used the product varied daily, he estimated

he used the product one to three or four times each day and “quite a bit, especially in the earlier

days” on older vehicles (id. at 300). Plaintiff testified that he would spray one or two coats to the

underside of a vehicle while lying on the ground (id. at 294-296, 302 and 308-309). Each coat

took two to three minutes to apply (id. at 309), and the product could drip if it pooled in one spot

(id. at 297-298 and 308). Plaintiff stated that he would become light-headed after using the

product, though it quickly wore off (id. at 316). Plaintiff wore protective equipment on his face

only half the time when using the Rust-Oleum product (id. at 303).

Kemperle testified that he did not know if Camera purchased any Rust-Oleum products

(NYSCEF Doc No. 412 at 42). Edelstein stated that HEAS never stocked paint products from

Rust-Oleum and did not sell Rust-Oleum products to Camera (NYCEF Doc No. 468 at 14).

Rust-Oleum’s director of product stewardship, Megan Gaughan (Gaughan), testified that

she was unaware of the exact date Rust-Oleum first began manufacturing Stop Rust, but she

believed production began in the 1970s (NYSCEF Doc No. 396, Riccardulli affirmation, exhibit

H, Gaughan deposition tr at 33, 54 and 56). Rust-Oleum manufactured Stop Rust in Evanston,

Illinois until 1988, when production moved to Pleasant Prairie, Wisconsin (id. at 126). Gaughan

described Rust-Oleum’s products as mixtures based on formulas devised in the research and

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development department (id. at 39). ExxonMobil, Arco and Shell did not assist in the design or

manufacture of Rust-Oleum’s products (id. at 128-130).

Gaughan testified that Rust-Oleum cannot locate any purchase records for the solvents

used to manufacture Stop Rust from 1978 to 1993 because of the passage of time (id. at 85-86)

and cannot identify the suppliers or the exact solvents that were purchased during that period (id.

at 91 and 127). Gaughan stated that Rust-Oleum gave its suppliers specifications for the raw

materials it purchased, though the company no longer had records from 1978 and 1993 (id. at 79

and 105). Gaughan was unaware if Rust-Oleum received certificates of analysis for the raw

materials it purchased in that period (id. at 105-106). Rust-Oleum relied on material safety data

sheets, or MSDS, from its suppliers to verify the composition of the materials it purchased, and

therefore, “[Rust-Oleum] would not test our final products to determine if there was something

present that wasn’t disclosed by the raw material supplier” (id. at 63). Gaughan stated that

“[t]here would be no reason to test a product to ensure that the formula matches what was

manufactured per the instructions” (id. at 61), since Rust-Oleum’s products were only mixtures

(id. at 133). Gaughan testified that Rust-Oleum has been a member of the American Coatings

Association, formerly known as National Paint & Coatings Association, since at least the late

1970s, and in that time, “there was an industry-wide effort not to exceed 0.1 percent benzene in

our paint products” (id. at 94-96). This number matched the standard limiting benzene exposure

to less than 0.1 percent set by the Occupational Safety and Health Administration (OSHA) (id. at

136). Gaughan testified that Rust-Oleum’s suppliers were “required to disclose any carcinogen,

and benzene in particular above 0.1 percent” (id. 131), and “if [benzene] was present at all [in

Stop Rust], it was present at less than 0.1 percent” (id. at 132).

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Zep - -

Zep manufactured Zep Protective Lubricating Spray (Zep PLS), an aerosol spray

lubricant used to loosen rusty nuts and bolts (NYSCEF Doc No. 409 at 377 and 384-385;

NYSCEF Doc No. 410 at 173). Plaintiff first began using Zep PLS when he was 11 or 12

(NYSCEF Doc No. 409 at 403). He often used Zep PLS indoors while lying under a vehicle and

spraying the product at rusty bolts at a distance of half an arm length (id. at 392 and 399). It took

10 to 15 seconds to spray a single coat, and occasionally, he had to apply two coats (id. at 402).

Each bumper had up to eight bolts, and a car hood had four bolts (id.). No one at Camera wore

gloves, a mask, or a respirator when using Zep PLS (id. at 407; NYSCEF Doc No. 410 at 185-

186), and plaintiff testified that he did not wash his hands after using Zep PLS because “the

product dried relatively quickly” (NYSCEF Doc No. 409 at 429).

Suhail Kamal Massad, Ph.D (Dr. Massad), a former vice president in Zep’s research and

development division, identified Zep PLS as a product Zep recommended for use in auto body

shops (NYSCEF Doc No. 395, Riccardulli affirmation, exhibit G, Dr. Massad deposition tr at 34

and 55). Dr. Massad was not sure of the date Zep PLS was first sold (id. at 111). An aerosol

chemist at Zep developed Zep PLS and chose what raw materials to incorporate (id. at 59-60).

Dr. Massad was unable to locate an active formula for Zep PLS before the formula used for

production in 1988 (id. at 79). Zep manufactured Zep PLS at its Atlanta, Georgia facility (id. at

58). ExxonMobil did not design or manufacture Zep PLS (id. at 155).

Dr. Massad testified that Zep maintained a list of approved suppliers for raw materials,

but he could not state which supplier supplied what raw material or when at any time between

1979 and 1993 (id. at 70-72). Dr. Massad stated that Zep did not have sales or production

records for Zep PLS dating back to 1979 (id. at 105-107). The production records would have

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shown the total amount of each raw material incorporated into each batch of Zep PLS the plant

produced (id. at 107).

Zep PLS was designed to include hydrocarbon solvents and oils as ingredients (NYSCEF

Doc No. 458, Snyder affirmation, exhibit V, Dr. Massad aff, ¶ 11). One such ingredient was

Aromatic 100 (NYSCEF Doc No. 395 at 139). Dr. Massad testified that he had located a

specification sheet dated May 4, 1993 from ExxonMobil for Aromatic 100, also known as Hi-Sol

10 or M036,5 in the raw material file Zep maintained for that solvent (id. at 139 and 153). Dr.

Massad could not state with certainty when Zep purchased M036 from ExxonMobil or if M036

from ExxonMobil was ever used in Zep PLS prior to May 1993, since Zep had other approved

suppliers from which to purchase that specific solvent (id. at 139, 152 and 155).

Dr. Massad testified that Zep did not test its products for all hazards and that it relied on

the material safety data sheets from its suppliers to determine a product’s potential hazards (id. at

92-93 and 98). Dr. Massad confirmed that raw benzene was not an ingredient in Zep PLS (id. at

141). Zep did not test Zep PLS to determine if could release hazardous levels of benzene when it

was used as intended by a customer (id. at 121). Dr. Massad explained that Zep’s material safety

data sheets complied with OSHA and California’s Proposition 65 regulations6 (id. at 128).

Product labels for Zep PLS from 1988, 1989 and 1990 did not list benzene as a hazardous

ingredient except labels produced for the California market identified benzene as a Proposition

65 chemical, although they did not state if benzene could cause cancer (id. at 123-127).

5 Zep assigned product code M036 to Aromatic 100. 6 “Proposition 65” is also known as the Safe Drinking Water and Toxic Enforcement Act of 1986 (Cal Health & Safety Code § 25249.5 et seq.). 153361/2020 LOTREAN, MARINEL vs. 3M COMPANY F/K/A MINNESOTA Page 13 of 45 Motion No. 022 023 024 025 026 027

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Arco - --

Plaintiff testified that he was not familiar with Arco, was not aware if Arco manufactured

or supplied products to Camera and did not know if Arco supplied solvents or ingredients used in

products sold to Camera (NYSCEF Doc No. 409 at 338 and 547).

Arco’s corporate representative, Ingrid Calle (Calle), testified that two divisions at Arco,

the Arco Chemical Division and the Lyondell Division, manufactured petrochemical products by

cracking crude oil and separating it into benzene, xylene and toluene, and sold those raw

materials to companies that incorporated them into products (NYSCEF Doc No. 442, Anyaele

affirmation, exhibit 6, Calle deposition tr at 17-19 and 60). Customers gave Arco specifications

for the final chemical analysis of the raw material, and Arco tested its products to ensure that

they met those specifications (id. at 61 and 65). Sales records organized by customer showed

that Arco or Lyondell Petrochemical Company supplied paraxylene and nitration-grade toluene

to DuPont (id. at 35-37, 43-44 and 46) and SMA/styrene maleic anhydride resin and AOK Dry to

Zep in 1980 (id. at 58). An undated record showed sales of toluene to Rust-Oleum, though Calle

believed the document originated prior to 1978 (id. at 54-56 and 91). The National Institute for

Occupational National Safety and Health (NIOSH) issued a regulatory document on benzene in

1976 and OSHA issued an emergency temporary standard for benzene in 1977 (id. at 64 and 84).

Calle testified that Arco’s then-manager of health and safety endeavored to ensure that Arco

voluntarily complied with the “1 PPM” regulatory standard (id. at 80-81). Arco sold its Lyondell

Division on July 1, 1988 (id. at 38). At the time of Calle’s deposition in 2023, Arco had not

manufactured any products for 20 years and had not manufactured any of the products at issue

for 35 years (id. at 14).

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ExxonMobil

Plaintiff had no personal knowledge or specific recollection of using an ExxonMobil

product at Camera and could not recall seeing an ExxonMobil logo on any product (NYSCEF

Doc No. 409 at 152-153). However, he believed that ExxonMobil may have supplied petroleum

products that made their way into the products he used at Camera (id.).

Caterina Tran (Tran), a hydrocarbon fluids core process improvement engineer, testified

that ExxonMobil manufactures a hydrocarbon fluids line of products derived from crude oil that

includes Varsols, Exxsols, Isopars and Solvessos, the last of which is a heavy aromatic fluid

(NYSCEF Doc No. 420, Chester-Schindler affirmation, exhibit 13, Tran deposition tr at 18, 22,

29-30 and 33). Solvessos include Aromatic 100, also known as A-100 or Solvesso 100, and

Aromatic 150 (id. at 84 and 91). ExxonMobil also manufactures an aromatics line of products

including toluene, known as Exxsol hexane, and xylene (id. at 82-83). ExxonMobil’s processes

for manufacturing hydrocarbon products at present are similar to those used in 1979 (id. at 36).

Tran could not state where ExxonMobil manufactured or refined Varsol, Exxsol, Isopar,

Solvesso, and toluene or Exxsol hexane between 1979 and 1993 (id. at 81 and 86-87). Tran

testified that ExxonMobil manufactured products according to its internal specifications and to

sales specifications (id. at 41). Sales specifications are documents given to customers explaining

“what limits we are trying to achieve, what properties those are, and then what test method was

used to measure those properties” in its products (id. at 118).

Tran testified that she did not know how often ExxonMobil tested its products between

1979 and 1993 (id. at 109-110). Tran could not state whether the product from any specific tank

that ExxonMobil tested was sold to DuPont (id. at 121). Tran had no knowledge whether

ExxonMobil researched the industries that used its hydrocarbon solvents (id. at 129). Tran

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testified that, at present, her group will try to understand the application or end use of an

ExxonMobil product, but Tran was unaware of what marketing efforts ExxonMobil had engaged

in between 1979 and 1993 (id. at 132-134). Tran was also unaware of any specific actions

ExxonMobil had undertaken to promote its solvents to customers, like DuPont (id. at 135).

Shell - --

Plaintiff never saw the Shell logo on any product he used at Camera (NYSCEF Doc No.

409 at 528). However, plaintiffs have alleged that Shell supplied solvents to the manufacturers

of the products used at Camera (id.).

Shari London (London) is a senior representative in its post-closing rights and obligations

department at Shell USA, Inc., formerly known as Shell Oil Company (NYSCEF Doc No. 479,

Flora affirmation, exhibit E, London deposition tr at 11 and 48-49). Shell sold hydrocarbon

solvents between 1978 and 1993 (id. at 64-65). Shell’s customers, not Shell, chose which Shell

product met their needs (id. at 182). Shell manufactured its products to its internal specifications

and to its customers’ specifications (id. at 110).

London testified that the product and safety compliance group, which was part of the

Health, Safety, and Environment Group (HSE) at Shell, creates material safety data sheets for

their solvents; other units at Shell review the sheets before they are issued (id. at 105). London

testified that she had never seen a state-specific material safety data sheet, as each sheet

incorporates the information required by several states (id. at 135-136). Safety data sheets are

mailed to customers like DuPont and Rust-Oleum (id. at 201 and 203-206). London stated that

Shell was unable to locate any certificates of analysis verifying the compositions of the products

at issue in this action (id. at 109-110).

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London confirmed that Shell sold solvents to DuPont and Rust-Oleum. A spreadsheet

from the Chemical Sales Organization, Houston Based Divisions, from December 1978 showed

that Shell shipped the following products to DuPont in Flint, Michigan: DMK or acetone; IPA99

or isopropyl alcohol; NBUOH or normal-butyl alcohol; mineral spirits 145EC; VMPNAP or

VM&P naphtha EC; CYC-53 or Cyclo-Sol 53; Tolusl 10; CYC-31 or Cyclo-Sol 31; and SCC

VMP or Shell Chemical Company or Shell Canada Chemicals VM&P naphtha (id. at 179-181).

Shell sold toluene and xylene to Rust-Oleum in 1985, 1986, 1987 and 1991 (id. at 185 and 191),

though London testified that Shell had no knowledge if the toluene or xylene it sold was

incorporated into a specific Rust-Oleum product (id. at 194-195). London expressed that

“DuPont at one time informed Shell that they desired to have solvent products in their supply

with less than 0.1 percent benzene” (id. at 182). London stated that she had never seen any

correspondence from Rust-Oleum indicating that Shell should manufacture a specific chemical

to conform to a particular Rust-Oleum standard (id. at 183). London testified that Shell

published internal standards on benzene exposure and worker health and safety (id. at 168).

Shell also changed the formulations of its products to reduce their benzene content based on

requests by regulatory agencies and Shell’s customers (id. at 197-198).

PROCEDURAL HISTORY

Plaintiffs commenced this action on May 26, 2020 by filing a summons and complaint

pleading four causes of action for: (1) negligence/gross negligence grounded on manufacturing

defect, design defect, and failure-to-warn theories; (2) breach of warranty; (3) strict products

liability based on defendants’ failure to warn about the dangerous propensities of benzene in

their products; and (4) loss of consortium (NYSCEF Doc No. 1). Plaintiff alleges that the auto

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body products he used at Camera contained benzene, and that his cumulative exposure to these

benzene-containing products through ingestion, inhalation, and dermal contact directly and

proximately caused his MDS. In a decision and order dated April 8, 2021, this court dismissed

the second cause of action for breach of warranty, denied dismissal of plaintiffs’ request for

punitive damages, and directed all movants to answer the complaint within 20 days (NYSCEF

Doc No. 121-124). Plaintiffs have since discontinued their claims against Safety-Kleen and

Chevron Phillips Chemical Company LP (NYSCEF Doc Nos. 225 and 367).

ExxonMobil, Arco and Shell (collectively, the Supplier Defendants) and DuPont, Rust-

Oleum and Zep (collectively, the Manufacturer Defendants) now move separately for summary

judgment. Plaintiffs oppose the motions.

DISCUSSION

A party moving for summary judgment under CPLR 3212 “must make a prima facie

showing of entitlement to judgment as a matter of law, tendering sufficient evidence to

demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320,

324 [1986]). The “facts must be viewed ‘in the light most favorable to the non-moving party’”

(Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [citation omitted]). If the moving

party meets its prima facie burden, the opposing party must “produce evidentiary proof in

admissible form sufficient to establish the existence of material issues of fact which require a

trial of the action” (Bazdaric v Almah Partners LLC, — NY3d —, —, 2024 NY Slip Op 00847,

*3 [Feb. 20, 2024] [internal quotation marks and citation omitted]). Conversely, if the moving

party fails to meet is prima facie burden, the motion must be denied, regardless of the sufficiency

of the opposing party’s papers (Vega, 18 NY3d at 503).

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I. The Supplier Defendants’ Motions (Motion Sequence Nos. 022, 023 and 027)

ExxonMobil, Arco and Shell argue that plaintiff cannot demonstrate he was exposed to

an ExxonMobil, Arco or Shell product and that they are entitled to summary judgment on that

ground.

“In a products liability action, identification of the exact defendant whose product injured

the plaintiff is generally required” (Hymowitz v Eli Lilly & Co., 73 NY2d 487, 504 [1989], cert

denied 493 US 944 [1989]). The plaintiff may establish the identity of the manufacturer or seller

through circumstantial evidence; such evidence “must establish that it is reasonably probable, not

merely possible or evenly balanced, that the defendant was the source of the offending product”

(Healey v Firestone Tire & Rubber Co., 87 NY2d 596, 601-602 [1996]). “Speculative or

conjectural evidence of the manufacturer’s identity is not enough” (id. at 602). Thus, a party

outside the manufacturing, selling or distribution chain cannot be held liable on a strict products

liability claim (Reed v Watts Water Tech., Inc., 212 AD3d 740, 741 [2d Dept 2023]). “On a

motion for summary judgment, a defendant who asserts that it did not manufacture the allegedly

defective product has the initial burden of establishing, as a matter of law, that it did not do so”

(Abulhasan v Uniroyal-Goodrich Tire Co., 14 AD3d 900, 901 [3d Dept 2005]). The defendant

cannot rely on gaps in the plaintiff’s proof to meet its prima facie burden (Universal Resources

Holdings, Inc. v North Penn Pipe & Supply, Inc., 129 AD3d 1671, 1671 [4th Dept 2015]).

Applying these precepts, the Supplier Defendants have shown that plaintiffs cannot

establish an essential element of their prima facie case (see Verdon v Port Auth. of N.Y. & N.J.,

111 AD3d 580, 582 [1st Dept 2013] [moving parties demonstrated that the plaintiff’s

circumstantial evidence was insufficient to establish that it was reasonably probable one of them

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had supplied the lumber used to construct the guardrail that broke]; D’Amico v Manufacturers

Hanover Trust Co., 173 AD2d 263, 266 [1st Dept 1991] [reasoning that there was “no

testimonial or documentary proof whatsoever that might permit a reasoned inference that

Cheseboro, rather than Tilley, was the manufacturer of the ladder, nor do we see how any might

be adduced”]; Gilfaldi v Dumont Co., 172 AD2d 1025, 1025 [4th Dept 1991] [granting summary

judgment where the “plaintiffs did not identify which entities manufactured the chemicals

incorporated into the foam insulation installed in plaintiffs’ building”]; but see O’Connor v

Aerco Intl., Inc., 152 AD3d 841, 842-843 [3d Dept 2017]). The Manufacturing Defendants’

witnesses each testified that their companies maintained lists of approved suppliers for the raw

materials in their products, and without any purchase or production records, they were unable to

state with certainty which supplier furnished any particular solvent or when and which supplier’s

solvents were incorporated into their products or when.

Plaintiffs, in opposition, contend that they have shown it is reasonably probable the

Manufacturing Defendants sourced the solvents in their products from the Supplier Defendants.

Through reverse-engineering, plaintiffs claim to have tied the Supplier Defendants’ solvents to

the specific solvents in the formulas for the finished products. To the extent available, plaintiffs

have also produced sales and shipping records showing that the Supplier Defendants sold those

solvents to the Manufacturing Defendants between 1979 and 1993, the period during which

plaintiff claims he was exposed to benzene at Camera. Plaintiffs have identified the following as

ingredients in five DuPont products:

Product Solvent Prep-Sol II Varsol-18 or mineral spirits/MS-145(EC) (H-457) Aromatic 150 (H-601) VM&P naphtha (H-425) Toluene/Tolusol-10 or Tolusol-12 (H-49) Centari Enamel Reducer Aromatic 150 (H-601)

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Toluene or Tolusol-10 or Tolusol-12 (H-49) VM&P naphtha (H-425) Centari Acrylic Enamel Paint Aromatic 150 (H-601) Xylene (H-583) A-100 or Cyclo-Sol 53 (H-596) VM&P naphtha (H-425) Toluene or Tolusol-10 or Tolusol-12 (H-49) Acrylic Lucite Paint Xylene (H-583) Acrylic Lacquer Thinner Xylene (H-583) Toluene or Tolusol-10 or Tolusol-12 (H-49) VM&P naphtha (H-425)

ExxonMobil shipped Varsol-18 (H-457), Aromatic 150 (H-601), toluene (H-49), xylene (H-583)

and A-100 (H-596) to DuPont plants in Parlin, Toledo, Flint, and/or Front Royal between 1984

and 1993 (NYSCEF Doc No. 415, Chester-Schindler affirmation, exhibit 7). Arco shipped

toluene and xylene to DuPont plants in Parlin and Front Royal in 1981, 1982, and 1983

(NYSCEF Doc No. 520, Chester-Schindler affirmation, exhibit 7). Shell shipped mineral

spirits/MS-145(EC) (H-457), VM&P naphtha (H-425), toluene/Tolusol-10 or Tolusol-12 (H-49),

and Cyclo-Sol 53 (H-596) to DuPont plants in Parlin, Toledo, Flint, and/or Front Royal between

1978 and 19937 (NYSCEF Doc No. 626, plaintiffs’ response to Shell’s statement of material

facts at 13-18 [tables]).

Xylene and toluene are ingredients in Rust-Oleum’s Stop Rust Light Brown Auto Body

Primer (NYSCEF Doc No. 616, Chester-Schindler affirmation, exhibit 6). Arco shipped toluene

and xylene to Rust-Oleum’s plant in Evanston, Illinois on unknown dates (NYSCEF Doc No.

520). Shell sold toluene and xylene to Rust-Oleum in 1985, 1986, 1987 and 1991 (NYSCEF

Doc No. 617 at 169 and attachments).

7 Plaintiffs allege that exhibit 17 marked at the deposition of Shell’s corporate representative contains Shell’s sales records (NYSCEF Doc No. 609, plaintiffs mem of law at 7 n 56). That exhibit, however, consists of a letter dated March 4, 1986, from Shell to a Docket Officer at OSHA (NYSCEF Doc No. 617, Chester-Schindler affirmation, exhibit 7, London deposition tr at 169 and attachment). 153361/2020 LOTREAN, MARINEL vs. 3M COMPANY F/K/A MINNESOTA Page 21 of 45 Motion No. 022 023 024 025 026 027

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As for Zep, its corporate representative testified that Zep PLS contained Aromatic 100,

and plaintiffs submit that ExxonMobil sold that solvent to Zep between 1978 and 1993.

In viewing these facts in the light most favorable to plaintiffs, as this court must (Urias v

Daniel P. Buttafuoco & Assoc., PLLC, — NY3d —, —, 2024 NY Slip Op 01497, *11 [March

19, 2024]), plaintiffs have failed to raise a triable issue of fact. The standard set forth in Healey

is reasonable probability (87 NY2d at 601), and plaintiffs’ proof fails to rise to this level (Bess v

Praxair, Inc., 139 Fed Appx 369, 370 [2d Cir 2005], cert denied 549 US 843 [2006]). First, it is

entirely speculative to conclude that the Supplier Defendants’ solvents were actually

incorporated into the Manufacturing Defendants’ products based solely on the fact that the

Supplier Defendants shipped solvents to them (see Sosa v Joyce Beverages, 159 AD2d 335, 337

[1st Dept 1990] [invoice and receipt for delivery of empty glass bottles from a bottle supplier to

a beverage producer 22 days before an accident insufficient circumstantial evidence to establish

that the bottle supplier manufactured the bottle that exploded where the beverage producer also

received shipments of bottles from other suppliers 18 and 20 days before the accident]). The

Manufacturing Defendants’ witnesses each testified that their respective companies kept lists of

raw materials suppliers, and none of them could identify which suppliers’ solvents were used in

manufacturing their products or when.

Second, the evidence establishes that multiple suppliers sold the same solvent and that the

same solvent appeared in other products that were not used by plaintiff. Based on the records,

each Supplier Defendant sold toluene to DuPont, but not every shipment was delivered to the

four DuPont plants that could have manufactured products for the New York market nor did each

Supplier Defendant sell toluene to DuPont every year plaintiff claims to have been exposed to

DuPont’s benzene-contaminated products. As another example, xylene is a frequent component

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in many DuPont paints, and DuPont manufactured other lines of paint, such as “Imron” paint

marketed to the heavy-duty truck industry (NYSCEF Doc No. 394 at 44-47). It is possible that

all shipments of xylene supplied by one of the Supplier Defendants could have made their way

into a DuPont product other than Centari or Lucite paint. The absence of records from the

production and manufacture of the finished auto body products sold to Camera invites the jury to

speculate which of the Supplier Defendants’ solvents were actually incorporated into those

finished products.

Contrary to plaintiffs’ contention, DuPont’s raw material specification sheets do not

identify the Supplier Defendants as standard suppliers. Each sheet lists multiple suppliers for the

same raw material, and the number of companies on the list changed each year. As an example,

Aromatic 150 (H-601) is a component in Centari Enamel Reducer and Centari Acrylic Enamel

Paint. A specification sheet for Aromatic 150 (H-601) issued in June 1984 identifies Exxon

U.S.A., Ashland Chemical Co., Union Oil Company of Calif., Chem Central-Detroit (Exxon

U.S.A.), Getty Refining, Johan Halterman, B.P., Esso, Shell, and Esso Belgium as approved

suppliers for that solvent (NYSCEF Doc No. 418, Chester-Schindler affirmation, exhibit 10). A

specification sheet for that same solvent from October 1993 lists Exxon Chemical, Exxon

Belgium, Shell, Deutsche Hydrocarbure, and BP as approved suppliers (id.).

Plaintiffs have also submitted multiple specification sheets issued by DuPont between

1988 and 1992 for VM&P naphtha (H-425), an ingredient in Prep-Sol II, Centari Enamel Reduce

and Centari Acrylic Enamel Paint. Each sheet lists Shell as a supplier, but Ashland Chemical,

Texaco Chemical Co., and Unocal Chemicals Corp./Union Oil of California appear as suppliers

on nearly every sheet, as well (NYSCEF Doc No. 619, Chester-Schindler affirmation, exhibit 9).

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A specification sheet from February 9, 1988, names eight suppliers and also includes a notation

that “THERE ARE MORE SUPPLIERS THAN CAN BE REPORTED” (id.).

Toluene (H-49) is an ingredient in Prep-Sol II, Centari Enamel Reducer, Centari Acrylic

Enamel Paint, and Acrylic Lacquer Thinner. A raw material specification sheet for toluene (H-

49) from August 1983 lists Exxon, Arco, and Shell as suppliers, but Charter International Oil

Co., Union Oil Company of Calif., Ashland Chemical Co., Big Benn Chemicals & Solvents,

Inc., Sun Oil Co., Skelly Oil Co., Tenneco and Texaco appear, as well (NYSCEF Doc No. 433,

Riccardulli reply affirmation, exhibit Q at 2). Last, DuPont’s specification sheet from 1982 for

Varsol-18 or mineral spirits/MS-145(EC) (H-457), a component in Prep-Sol II, identifies Exxon

and Shell as just two of the 10 approved suppliers for that solvent (NYSCEF Doc No. 432,

Riccardulli reply affirmation, exhibit P at 2).

Rust-Oleum’s witness, likewise, testified that Rust-Oleum purchased ingredients for its

product from different suppliers. Although Rust-Oleum had no records from 1979 to 1993,

plaintiffs’ expert industrial hygienist, Enrique Medina (Medina), identified Citgo, Unocal,

Ashland and Shell as suppliers of raw materials for Rust-Oleum’s “Stop Rust Sprays” between

1996 and 2005 (NYSCEF Doc No. 421, Chester-Schindler affirmation, exhibit 14, Medina

9/14/2023 aff at 15).

Plaintiffs’ proof with respect to Zep is similarly deficient. Plaintiffs submit that it is

reasonably probable ExxonMobil’s Aromatic 100 solvent made its way into Zep PLS based on

Dr. Massad’s testimony. Dr. Massad’s testimony, though, is equivocal. When asked if Zep PLS

contained Aromatic 100, Dr. Massad responded “[y]es” (NYSCEF Doc No. 395 at 139). Dr.

Massad then produced a technical data or specification sheet for M036/Hi-Sol 10/Aromatic 100

dated May 4, 1993, that Zep had received from ExxonMobil (id. at 152). Dr. Massad testified

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that Zep kept separate files for its raw materials (id. at 153), and that he found the specification

sheet in the product file for M036 (id. at 139-140). Dr. Massad could not state when the sheet

was added to Zep’s file or whether ExxonMobil’s solvent was used in Zep PLS prior to May

1993 (id. at 154). Lilly Cadena (Cadena), an ExxonMobil paralegal, avers that she was asked to

conduct a search for sales of “A100” to Zep in Atlanta, Georgia between 1979 and 1993

(NYSCEF Doc No. 429, Riccardulli reply affirmation, exhibit M, Cadena aff ¶¶ 1 and 7). The

search yielded no results (id., ¶ 7). Furthermore, Medina identified Ashland as a supplier of M-

036/Hi-Sol-10/Aromatic 100, as well (NYSCEF Doc No. Doc 526, Chester-Schindler

affirmation, Medina 10/4/2023 aff at 14). Thus, plaintiffs’ circumstantial evidence, at most,

demonstrates that it was merely possible, not reasonably probable, that the Supplier Defendants’

solvents were used in the Manufacturing Defendants’ products plaintiff used at Camera.

Plaintiffs’ reliance on the doctrine of alternative liability is unavailing.8 The doctrine of

alternative liability permits a plaintiff to recover “where the precise identification of a wrongdoer

is impossible” (Hymowitz, 73 NY2d at 505). Under this doctrine, “where two defendants breach

a duty to the plaintiff, but there is uncertainty regarding which one caused the injury, ‘the burden

is upon each such actor to prove that he has not caused the harm’” (id., quoting Restatement

[Second] of Torts, § 433B [3]). “Recovery under an alternative liability theory requires joinder

of all the parties who could have been responsible for a plaintiff’s injuries” (Silver v Sportsstuff,

Inc., 130 AD3d 907, 909 [2d Dept 2015] [internal quotation marks and citation omitted]; accord

New York Tel. Co. v AAER Sprayed Insulations, Inc., 250 AD2d 49, 55 [1st Dept 1998] [the

presence of all possible tortfeasors is a critical element of alternative liability theory]).

8 In response to Arco’s motion, plaintiffs state that they “are not seeking to invoke the theory of pure, market share liability” and are pursuing claims only against “the limited universe of those they could establish sold solvents to DuPont and Rust-Oleum” (NYSCEF Doc No. 512, plaintiffs mem of law at 17). 153361/2020 LOTREAN, MARINEL vs. 3M COMPANY F/K/A MINNESOTA Page 25 of 45 Motion No. 022 023 024 025 026 027

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Here, plaintiffs have failed to join all suppliers who have, or could have, supplied

solvents to the Manufacturing Defendants between 1979 and 1993 as parties (see Catherwood v

American Sterilizer Co., 139 Misc 2d 901, 906 [Sup Ct, Erie County 1988], affd 148 AD2d 985

[4th Dept 1989], lv dismissed 74 NY2d 791 [1989] [granting dismissal where the plaintiff failed

to join all other distributors and manufacturers]; see also Girau v Europower, Inc., 2017 WL

4124340, *5, 2017 US Dist LEXIS 149410, *12 [SD NY, Sept. 14, 2017, No. 10 Civ. 4320

(NSR)] [same]). The record demonstrates that the Manufacturing Defendants maintained lists of

approved suppliers for their raw materials, and as to DuPont, the specification sheets for at least

three solvents in its products identified numerous approved suppliers. Plaintiffs, though, elected

to pursue claims against only three such suppliers. Thus, plaintiffs have not demonstrated how

the doctrine of alternative liability salvages their claims against the Supplier Defendants.

In view of the foregoing, the court need not address the other arguments raised by

Supplier Defendants. The motions brought by ExxonMobil, Arco, and Shell for summary

judgment dismissing the complaint and the cross-claims asserted against them are granted.

II. Zep’s Motion (Motion Sequence No. 024)

A. Whether Zep Answered the Complaint

At the outset, the court declines to deny Zep’s motion for its alleged failure to timely

answer the complaint. Plaintiffs submit that Zep served its answer on July 15, 2021 (NYSCEF

Doc No. 146), more than 20 days after it had been directed to do so under the court’s April 8,

2021, order and without an extension of time under CPLR 3012. As such, plaintiffs assert that

Zep cannot raise the defense that it is an improper party. The argument is unpersuasive. CPLR

2101 (f) provides that “[t]he party on whom a paper is served shall be deemed to have waived

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object to any defect in form unless, within fifteen days after receipt thereof, the party on whom

the paper is served returns the paper to the party serving it with a statement of particular

objections.” Plaintiffs have not shown that they served Zep with a notice rejecting its answer,

and therefore, they have waived any objection to its timeliness (see U.S. Bank N.A. v Lopez, 192

AD3d 849, 850 [2d Dept 2021]).

B. Whether Zep is a Proper Party

Zep contends that it is not a proper party because it is not the successor-in-interest to the

company that manufactured Zep PLS. Zep proffers an affidavit from Shari Lotz (Lotz), Zep’s

Vice President and Chief Human Resources Officer, in support. Lotz avers that Zep

Manufacturing Company, which was an unincorporated division of National Services Industries,

Inc., manufactured Zep PLS prior to August 2001, and that Zep Manufacturing Company’s

assets were transferred to The Zep Group, Inc., which later changed its name to Acuity Specialty

Products Group, Inc. (ASPG) (NYSCEF Doc No. 458, Snyder affirmation, exhibit U, Lotz aff ¶¶

7-8). ASPG reorganized in 2007 to form Zep and Acuity Specialty Products, Inc. (ASP) (id., ¶¶

9 and 11). Lotz further avers that ASPG’s assets were assigned to ASP and that ASPG’s stock

was transferred to Zep, a holding company that did not manufacture, distribute, or sell Zep PLS

(id., ¶¶ 4 and 10).

Generally, a parent corporation is not liable for the tortious acts of a subsidiary in the

absence of the parent’s exercise of complete domination and control (Margolin v Sonesta Intl.

Hotels Corp., 85 AD2d 548, 548 [1st Dept 1981]). Here, Zep has failed to meet its prima facie

burden, as Lotz’s averments concerning Zep’s corporate structure are conclusory and

unsupported by any documentary evidence. Lotz failed to sufficiently set forth a “valid basis”

for the facts set out in her affidavit (Muslar v Hall, 214 AD3d 77, 81 [1st Dept 2023]), stating

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only that she was competent to testify “based on personal knowledge or otherwise known to me

to be true based on documents available to me” (NYSCEF Doc No. 458, Lotz aff ¶ 1). Lotz

failed to identify or attach the records she reviewed and relied upon in making her averments

(see Deutsche Bank Natl. Trust Co. v Kirschenbaum, 187 AD3d 569, 569 [1st Dept 2020];

Shanahan v Aerco Intl., Inc., 172 AD3d 534, 534 [1st Dept 2019]). Tellingly, Zep, in response

to plaintiffs’ challenge to its proof, submitted a 2001 general conveyance, assignment and

assumption agreement, a 2007 contribution agreement, a 2007 distribution agreement and other

documents to bolster Lotz’s averments, but this cannot remedy basic defects with Zep’s prima

facie showing (see Carboni v Alfa Romeo USA, 220 AD3d 591, 591-592 [1st Dept 2023]). Zep’s

motion insofar as it seeks summary judgment on the ground that it is not a proper party is denied.

C. Negligence and Products Liability

“In New York, a product is considered ‘defective,’ and the manufacturer liable, if the

product: (1) ‘contains a manufacturing flaw,’ (2) ‘is defectively designed,’ or (3) ‘is not

accompanied by adequate warnings for the use of the product’” (Matter of Eighth Jud. Dist.

Asbestos Litig., 33 NY3d 488, 493-494 [2019], quoting Liriano v Hobart Corp., 92 NY2d 232,

237 [1998]). Manufacturers and sellers are “under a duty to exercise reasonable care so as to

avoid the occurrence of injuries by any product which can reasonably be expected to be

dangerous if negligently manufactured or sold” (Gebo v Black Clawson Co., 92 NY2d 387, 394

[1998]). In products liability actions, “there is almost no difference between a prima facie case

in negligence and one in strict liability” (Preston v Peter Luger Enters., Inc., 51 AD3d 1322,

1325 [3d Dept 2008]). Thus, a plaintiff injured by an allegedly defective product may pursue

claims under strict products liability (Finerty v Abex Corp., 27 NY3d 236, 241 [2016]) and

ordinary negligence theories (Gebo, 92 NY2d at 394).

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1. Design Defect

The part of Zep’s motion seeking to dismiss so much of the first cause of action alleging

defective design is granted, as plaintiffs do not oppose this branch of the motion (NYSCEF Doc

No. 566, plaintiffs’ response to Zep’s statement of material facts, ¶ 55).

2. Manufacturing Defect

Zep posits that the manufacturing defect claim fails because Zep PLS worked as it was

intended. Dr. Massad avers that Zep PLS was an aerosol penetrating lubricant that was

“designed, to among other thing, assist users in loosening rust-frozen or soil-impacted nuts,

bolts, and screws” (NYSCEF Doc 458, Dr. Massad aff ¶¶ 9-10). Dr. Massad further avers that

Zep PLS was designed to include hydrocarbon solvents and oils, which worked together as a

penetrating lubricant (id., ¶ 12). Plaintiff testified that Zep PLS “work[ed] well,” was “a real

good product,” was a better product than WD-40, and was “an amazing product” (NYSCEF Doc

No. 566, ¶¶ 15-17).

“[I]n strict products liability cases involving manufacturing defects, the harm arises from

the product’s failure to perform in the intended manner due to some flaw in the fabrication

process” (Denny v Ford Motor Co., 87 NY2d 248, 257 n 3 [1995], rearg denied 87 NY2d 969

[1996]). The defendant moving for summary judgment dismissing “a strict products liability

claim based on a manufacturing defect must submit admissible proof establishing, as a matter of

law, that the product was not defective” (McArdle v Navistar Intl. Corp., 293 AD2d 931, 932 [3d

Dept 2002]). If the defendant meets this initial burden, the plaintiff must demonstrate, through

direct evidence, a triable issue of fact whether there was a defect (id.). Where the product is no

longer available, the plaintiff may circumstantially prove its claim for a manufacturing defect by

showing that the product did not perform as intended and by excluding all other causes for the

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product’s failure that are not attributable to the defendant manufacturer (Speller v Sears, Roebuck

& Co., 100 NY2d 38, 41 [2003]).

In viewing the facts in the light most favorable to plaintiffs, Zep has failed to dispel all

questions of material fact (see Auguste v Edlund Co., LLC, 213 AD3d 797, 799-800 [2d Dept

2023]). Zep argues that Zep PLS performed as intended based on plaintiff’s testimony (see

Sugrim v Ryobi Tech., Inc., 73 AD3d 904, 905 [2d Dept 2010] [granting summary judgment

dismissing a manufacturing defect claim based on the plaintiff’s testimony that that product

operated properly]). However, “a defectively manufactured product is flawed because it is mis-

constructed without regard to whether the intended design of the manufacturer was safe or not.

Such defects result from some mishap in the manufacturing process itself, improper

workmanship, or because defective materials were used in construction” (Caprara v Chrysler

Corp., 52 NY2d 114, 128-129 [1981] [Jasen, Jones, Meyer, JJ., dissenting], rearg denied 52

NY2d 1073 [1981). Zep PLS was formulated to include hydrocarbon solvents as ingredients,

and plaintiffs have alleged that those solvents contained benzene. Dr. Massad testified that Zep

never tested Zep PLS for its benzene content. In addition, Zep’s expert toxicologist, Christopher

M. Long, Sc.D, DABT (Long), states that “[b]enzene is a known trace-level impurity of

hydrocarbon solvents including several that were historically used as ingredients in Zep PLS,

such as aliphatic solvents, aromatic hydrocarbon solvents, mineral spirits and naphthenic oil”9

(NYSCEF Doc No. 458, Snyder affirmation, exhibit W, Long aff at 7). Long also states that

9 Long opines that plaintiff’s cumulative exposure to the benzene in Zep PLS is only a “small fraction of his expected lifetime exposure from ambient, background sources of airborne benzene – e.g., about 15% of lifetime benzene exposure calculated using the 2009 nationwide median ambient air benzene level” (NYSCEF Doc No. 458, Long aff at 22). Zep argues that such exposure is insufficient to cause MDS (NYSCEF Doc No. 452, Zep mem of law at 13), but Zep has not expressly moved for summary judgment on the issue of causation. Zep raised the issue of causation only in connection to its argument seeking dismissal of the punitive damages claim. 153361/2020 LOTREAN, MARINEL vs. 3M COMPANY F/K/A MINNESOTA Page 30 of 45 Motion No. 022 023 024 025 026 027

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most solvent manufacturers “had either removed products from the marketplace with benzene

levels of greater than 0.1% (1,000 ppm) or implemented changes to production processes to

reduce levels of benzene impurities” (id. at 7). Long then calculated the estimated benzene

contents in Zep PLS manufactured between January 1984 and December 1992 and the potential

air emission rates from plaintiff’s use of the product (id. at 6-13). Notably, Long relied on the

same DuPont raw material specification sheet as Medina, which set a 0.1% maximum benzene

content for solvent CAS No. 8032-32-4, to calculate the assumed benzene contents of Zep PLS

produced between January 1984 and December 1992 (id. at 8). But, as discussed earlier, Zep

never tested Zep PLS to determine its benzene content. Zep further contends that it was not

required to report trace amounts of benzene on the MSDS for Zep PLS because the benzene

content in the product fell below OSHA’s 0.1 % threshold. Whether Zep was required to list

benzene on an MSDS, however, does not conclusively demonstrate that the materials used to

manufacture Zep PLS were not defective in accordance with the product’s specifications.10

3. Failure-to-Warn

Zep contends that the failure-to-warn claims must be dismissed because plaintiff never

read a warning or material safety data sheet for Zep PLS before he used the product.

“[F]ailure-to-warn claims grounded in strict liability and negligence are functionally

equivalent, as both forms of a failure-to-warn claim depend on the principles of reasonableness

and public policy at the heart of any traditional negligence action “(Matter of New York City

Asbestos Litig., 27 NY3d 765, 787 [2016]). “A manufacturer has a duty to warn against latent

dangers resulting from foreseeable uses of its product of which it knew or should have known …

10 In contrast to the testimony from DuPont’s and Rust-Oleum’s corporate witnesses, there was no testimony adduced as to whether Zep issued material specifications to its suppliers regarding the benzene content of the solvents Zep purchased. 153361/2020 LOTREAN, MARINEL vs. 3M COMPANY F/K/A MINNESOTA Page 31 of 45 Motion No. 022 023 024 025 026 027

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[as well as] a duty to warn of the danger of unintended uses of a product provided these uses are

reasonably foreseeable” (Liriano, 92 NY2d at 237 [citations omitted]). “Failure-to-warn liability

is intensely fact-specific, including but not limited to such issues as feasibility and difficulty of

issuing warnings in the circumstances; obviousness of the risk from actual use of the product;

knowledge of the particular product user; and proximate cause” (id. at 243). The plaintiff bears

the burden of demonstrating that the lack or inadequacy of the warning was a proximate cause of

the accident, otherwise such claim will be dismissed (Sosna v American Home Prods., 298 AD2d

158, 158 [1st Dept 2002]).

Applying these precepts, Zep has demonstrated its entitlement to summary judgment on

the failure-to-warn claims (see Vasquez v Ridge Tool Pattern Co., 205 AD3d 657, 659 [1st Dept

2022] [dismissing failure-to-warn claim where the plaintiff “admitted that he never read the

manual before his accident”]; M.H. v Bed Bath & Beyond, Inc., 156 AD3d 33, 38 [1st Dept

2017] [same]). Plaintiff admitted that he never read the labels on the products he used and had

never heard of a material safety data sheet before his deposition (NYSCEF Doc No. 409 at 118

and 431-434). Jon similarly testified that he did not read the warnings or instructions on the Zep

product he used, could not recall if plaintiff read those warnings or instructions on the Zep can,

and he never discussed any warnings or instructions on the can of Zep with plaintiff (NYSCEF

Doc No. 410 at 187).

4. Punitive Damages

Zep’s motion for summary judgment dismissing plaintiffs’ request for punitive damages

is granted, without opposition. Plaintiffs have stated that they do not oppose this branch of the

motion (NYSCEF Doc No. 536, plaintiffs mem of law at 18 n 104).

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III. Rust-Oleum’s Motion (Motion Sequence No. 025)

A. Whether the Claims are Time-Barred

Rust-Oleum argues that this action is untimely because plaintiff first experienced low

platelet counts in 2009, which Rust-Oleum claims triggered the three-year statute of limitations

in CPLR 214-c to bring any claims.

CPLR 214-c (2) provides for a three-year statute of limitations for causes of action

stemming from the “latent effects of exposure to any substance or combination of substances.”

The cause of action begins to run “from the date of discovery of the injury by the plaintiff or

from the date when through the exercise of reasonable diligence such injury should have been

discovered by the plaintiff, whichever is earlier” (CPLR 214-c [2]). An “injury” for purposes of

CPLR 214-c is an “actual illness, physical condition or other similarly discoverable objective

manifestation of the damage caused by previous exposure to an injurious substance” (Sweeney v

General Print., 210 AD2d 865, 865-866 [3d Dept 1994], lv denied 85 NY2d 808 [1995]). “[A]

plaintiff must be considered to have discovered such an injury when he or she is actually

diagnosed as suffering from a particular disease, even though unaware of its cause” (id. at 866).

“[A] ‘cause of action for damages resulting from exposure to toxic substances accrues when the

plaintiff begins to suffer the manifestations and symptoms of his or her physical condition, i.e.[,]

when the injury is apparent, not when the specific cause of the injury is identified’” (Vincent v

New York City Hous. Auth., 129 AD3d 466, 467 [1st Dept 2015] [citation omitted]; see also

Brightman v Sims, 188 AD3d 558, 559 [1st Dept 2020] [“[a]n injury is discovered ‘when the

injured party discovers the primary condition on which the claim is based’”] [internal quotation

marks and citation omitted]). Other factors to consider include “whether a plaintiff sought

regular medical treatment; whether a plaintiff is limited in physical activity or misses time from

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work; and whether a plaintiff files a worker’s compensation claim” (Matter of New York City

Asbestos Litig., 53 Misc 3d 579, 584-585 [Sup Ct, NY County 2016]).

Under these precepts, Rust-Oleum has failed to demonstrate that the claims are time-

barred. Plaintiff’s primary condition is MDS, which plaintiffs allege is a type of blood cancer

(NYSCEF Doc No. 583, plaintiffs mem of law at 4; NYSCEF Doc No. 409 at 129 [“I came out

of this on the other side, cancer free”]). Plaintiff first discovered that he had low platelet counts

in 2009, though bone marrow biopsies were negative for cancer. It does not appear that plaintiff

missed any time from work, his physical activity was not limited as a result, and his symptoms

did not worsen (compare Ward v Lincoln Elec Co., 116 AD3d 558, 559 [1st Dept 2014] [plaintiff

experienced “persistent, severe, progressively worsening symptoms that limited his physical

activity, for which he sought regular, ongoing medical treatment”]). Plaintiff’s physician in the

Netherlands concluded that “no diagnosis has been made, in the absence of symptoms and a

steady but slight improvement in all numbers” (NYSCEF Doc No. 600, Chester-Schindler

affirmation, exhibit 17). Dr. Harrison’s statement that plaintiff’s “blood count and bone marrow

findings in 2009 probably represented abnormalities that eventually became diagnostic for

MDS” is too equivocal to establish that the statute of limitations began to run in 2009 (NYSCEF

Doc No. 471 at 6). Hence, this early symptom appears to be “too isolated or inconsequential to

trigger the running of the Statute of Limitations under CPLR 214-c (2)” (Cabrera v Picker Intl.,

Inc., 2 AD3d 308, 309 [1st Dept 2003]; but see Burger v Union Carbide Corp., 304 AD2d 700,

701 [2d Dept 2003]). Rust-Oleum’s motion insofar as it seeks dismissal of the complaint as

time-barred is denied.

B. Whether Stop-Rust Was the Cause-In-Fact of Plaintiff’s Injury

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Rust-Oleum contends that plaintiffs cannot establish Stop Rust is the cause-in-fact of

plaintiff’s injury because the opinions of their experts, Medina and Dr. Robert Harrison, M.D.

(Dr. Harrison), a physician specializing in occupational medicine, lack a proper foundation. The

anticipated expert testimony was set forth in plaintiffs’ CPLR 3101 (d) expert disclosures

Medina referred to: material safety data sheets for a separate Rust-Oleum product, Smoke Gray

alkyd resin high gloss enamel; product composition reports from 1986 to 2000 for toluene,

xylene, ethylbenzene, and mineral spirits in Stop Rust sprays that Rust-Oleum exchanged in

Milward v Acuity Specialty Products Group, Inc. (D Mass, No. 1:07-cv-11944-GAO) (the

Milward Action), which involved a different Rust-Oleum product; material safety data sheets

from 1996 to 2005 from Citgo, Unocal, Ashland and Shell for mineral spirits, VM&P naphtha,

toluene, hexane, xylene, Lacolene, ShellSol and Lactol Spirits; and testimony from former Rust-

Oleum employee Robert M. Hall (Hall) in the Milward Action11 (NYSCEF Doc No. 472, Sena

affirmation, exhibit L at 28-29). Rust-Oleum submits that Medina erroneously assumed that the

petroleum hydrocarbons in Stop Rust contained 0.1% benzene based on those documents and on

DuPont’s raw material specifications limiting the benzene content of the petroleum hydrocarbons

it purchased to 0.1% (id. at 41). Medina then used this information to develop a quantitative

assessment of plaintiff’s cumulative benzene exposure in Stop Rust (id. at 43). Dr. Harrison

relied on Medina’s flawed report to conclude that plaintiff’s exposure to benzene was sufficient

to cause his MDS (NYSCEF Doc No. 471, Sena affirmation, exhibit K at 10).

11 The Milward Action involved “aerosol or brush products under the brand name Rust-Oleum that were made as early as the late ‘70s through around 2000” (NYSCEF Doc No. 587, Chester-Schindler affirmation, exhibit 4, Hall deposition tr at 10), and there were multiple products under the “Stops Rust” brand (id. at 32). While Hall discussed the component ingredients in “Stops Rust Quart Brush” (id. at 31), there was no testimony about the composition of Stop Rust Automobile Primer, which is the product at issue in this action.

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In cases where the plaintiff was exposed to a toxic substance, “an opinion on causation

should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular

illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause

the illness (specific causation)” (Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006], rearg

denied 8 NY3d 828 [2007]). The plaintiff bears the burden of “establish[ing] sufficient exposure

to a substance to cause the claimed adverse health effect” (Cornell v 360 W. 51st St. Realty, LLC,

22 NY3d 762, 784 [2014], rearg denied 23 NY3d 996 [2014]). While “precise quantification of

exposure is not always required[,] … [the] [p]laintiff[ ] must, using expert testimony based on

‘generally accepted methodologies,’ still establish sufficient exposure to the toxin even though

‘it is sometimes difficult, if not impossible,’ to do so” (Nemeth v Breentag N. Am., 38 NY3d 336,

343 [2022], quoting Sean R. v BMW of N. Am., LLC, 26 NY3d 801, 812 [2016]). “‘At a

minimum, … there must be evidence from which the factfinder can conclude that the plaintiff

was exposed to levels of that agent that are known to cause the kind of harm that the plaintiff

claims to have suffered’” (Cornell, 22 NY3d at 784 [citation omitted]). To prevail on a motion

for summary judgment in a toxic tort case, the defendant must demonstrate the lack of general or

specific causation (Dyer v Amchem Prods., Inc., 207 AD3d 408, 410 [1st Dept 2022]).

It is well settled that an expert’s opinion must have an evidentiary foundation (Diaz v

New York Downtown Hosp., 99 NY2d 542, 544 [2002]). Here, Rust-Oleum attacks the

sufficiency of plaintiffs’ expert opinions. By doing so, though, Rust-Oleum merely points to

perceived gaps in plaintiffs’ proof, which is insufficient to satisfy its prima facie burden (Dyer,

207 AD3d at 409 [the defendant cannot “simply argue that plaintiff could not affirmatively prove

causation, but rather it had to affirmatively prove, as a matter of law, that there was no

causation”]). Importantly, Rust-Oleum has not proffered an expert opinion stating that plaintiffs’

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claims fail (see Cokeng v Ogden Cap Props., LLC, 104 AD3d 550, 550 [1st Dept 2013] [denying

summary judgment where the defendants “advanced no affidavit from a toxicology or

epidemiology expert, nor did they otherwise eliminate all material issues of fact regarding

general and specific causation”]; Zaslowsky v J.M. Dennis Constr. Co. Corp., 26 AD3d 372, 374

[2d Dept 2006] [granting summary judgment where the defendant produced “expert evidence

based on a scientifically-reliable methodology that there was no causal connection between the

… gas leak and the plaintiff’s injuries]). Instead, Rust-Oleum waited until its reply to tender an

affidavit from certified industrial hygienist Jennifer Sahmel, Ph.D. (Dr. Sahmel), who cites

several studies stating that the benzene content of most petroleum solvents fell well below 0.1%

after 1983 and opines that Medina overestimated plaintiff’s benzene exposure (NYSCEF Doc

No. 647, Dr. Sahmel aff, ¶ 12). Rust-Oleum, however, cannot rely on an expert affidavit

submitted in reply to establish their prima facie case (see Migdol v City of New York, 291 AD2d

201, 201 [1st Dept 2002]). To the extent Rust-Oleum complains that the reports in plaintiffs’

CPLR 3101 (d) exchanges are unsworn, it has not cited a statute or caselaw requiring that such

exchange must include a sworn report.

Rust-Oleum also contends that plaintiffs have not conducted any tests on Stop Rust to

show that the product contained benzene, but “courts must take care not to set the bar at an

insurmountable level, thereby inappropriately depriving toxic tort plaintiffs of their day in court,”

especially where a sample of the toxin has not been preserved (Temples v Tesa Tape, Inc., 2011

WL 13388551, *2, 2011 US Dist LEXIS 175189, *4 [SD NY Mar. 11, 2011, No. C06-15409-

TSZ], citing Parker, 7 NY3d at 447). On this point, assuming Rust-Oleum carried its prima

facie burden, plaintiffs have raised a triable issue of fact that Stop Rust contained small amounts

of benzene. Toluene is a component in Stop Rust, and Shell and Arco supplied Rust-Oleum with

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toluene, as discussed above.12 It appears that as of March 1978, the toluene manufactured by

Arco contained benzene (NYSCEF Doc No. 595, Chester-Schindler affirmation, exhibit 12 at 3).

William G. Eissler (Eissler), Arco’s Manager, Safety and Industrial Hygiene, submitted an

affidavit to OSHA regarding Arco’s ability to comply with OSHA’s Permanent Standard for

Occupational Exposure to Benzene (id. at 1). Eissler wrote that 41% of the 881 crude and liquid

process streams Arco tested in its facilities contained more than 0.1% benzene and 90% of 300

streams tested in four refineries contained more than 0.1% benzene (id. at 4). Additional

sampling revealed that 41%, 50%, 84% and 99% of streams at four chemical facilities contained

more than 0.1% benzene (id. at 5). Medina cites two “published studies documenting benzene

content of petroleum hydrocarbons above 0.1% in the time period of [plaintiff’s] work in the

auto body industry” in his sworn report from October 4, 2023 (NYSCEF Doc No. 588, Chester-

Schindler affirmation, exhibit 5, Medina 10/4/2023 aff at 28). One study titled “Benzene-

contaminated toluene and acute myeloid leukemia: a case series and review of literature” (the

Peckham Study) published in Toxicology and Industry Health, reads, in part, that “[b]enzene, a

well-known cause of myelodysplastic syndrome (MDS) and acute myeloid leukemia (AML)[,]

… is present as a contaminant in many common petrochemicals, including toluene, mineral

spirits, and naphtha” (NYSCEF Doc No. 590, Chester-Schindler affirmation, exhibit 7 at 1). The

authors of the study concluded that “toluene’s propensity to contain benzene as an impurity

suggest benzene as a probable causative factor for their development of [AML]. Although the

benzene concentration in widely used solvent mixtures varies, there is a reason to believe that

even those containing amounts <0.1% have the potential to generate exposures capable of

12 Rust-Oleum disputes whether Arco supplied any solvents to it between 1978 and 1993 based on Calle’s testimony that she believed that the sales records Arco produced predated that period based on their formatting. 153361/2020 LOTREAN, MARINEL vs. 3M COMPANY F/K/A MINNESOTA Page 38 of 45 Motion No. 022 023 024 025 026 027

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causing AML” (id. at 7). A second study titled “Potential Uses of Petrochemical Products Can

Result in Significant Benzene Exposures: MSDSs Must List Benzene as an Ingredient” (the

Kopstein Study) published in the Journal of Occupational and Environmental includes a table

listing the representative benzene content of numerous petrochemicals, such as VM&P naphtha,

hexane, toluene, xylene and mineral spirits, that the study’s author had compiled from various

sources over a period of years (NYSCEF Doc No. 589, Chester-Schindler affirmation, exhibit 6

at 1, 4 and 7). Thus, Medina’s opinion is not entirely without a basis in fact.

Last, the cases cited by Rust-Oleum are inapposite. Hamilton v Beretta U.S.A. Corp. (96

NY2d 222, 240-241 [2001]) concerns whether the theory of market share liability in products

liability actions should be extended beyond litigation involving the drug diethylstilbestrol, or

DES. The issue in both Diel v Flintkote Co. (204 AD2d 53, 53-54 [1st Dept 1994]) and Cawein

v Flintkote Co. (203 AD2d 105, 106 [1st Dept 1994]) was whether the plaintiffs had sufficiently

identified defendant Flintkote Co.’s products such that it could be held liable. By contrast here,

plaintiff testified to having used a Rust-Oleum aerosol product to treat bare metal. Because

Rust-Oleum has failed to “‘unequivocally establish that its product could not have contributed to

the causation of plaintiff’s injury’” (Horvath v Ameron Intl. Corp., — AD3d —, —, 2024 NY

Slip Op 02147, *1 [1st Dept, April 23, 2024], quoting Reid v Georgia-Pacific Corp., 212 AD2d

462, 463 [1st Dept 1995]), its motion for summary judgment on causation is denied.

IV. DuPont (Motion Sequence No. 026)

DuPont contends that plaintiffs cannot establish either general or specific causation under

Parker. Plaintiffs counter that their experts satisfy Parker and tender two affidavits from

Medina and two affidavits from Dr. Harrison, one of which incorporates Dr. Harrison’s affidavit

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in Cole v Safety-Kleen Systems, Inc., et al., Sup Ct, Onondaga County, index No. 002841/2018,

and Arpino v Ashland LLC, et al., Sup Ct, Onondaga County, index No. 007335/2018 (together,

the Cole/Arpino Actions).

A. General Causation

As explained above, an expert opinion on causation must establish general causation,

meaning the toxin to which the plaintiff was exposed must be capable of causing the plaintiff’s

particular condition (Parker, 7 NY3d at 448). Here, DuPont has established, prima facie, the

absence of general causation (Cornell, 22 NY3d at 781). Board-certified toxicologist Patrick

Kerzic (Kerzic) opines that there is no reliable scientific evidence to show that working with

mineral spirits, naphthas, toluene, xylene and n-hexane are known to cause MDS, even in highly

exposed workers (NYSCEF Doc No. 505, Flora affirmation, exhibit L, Kerzic aff, ¶¶ 2-4).

Kerzic states that the International Agency for Research on Cancer (IARC), which is part of the

World Health Organization, and the National Toxicology Program (NTP) within the U.S.

Department of Health and Human Services, maintain lists of known and suspected human

carcinogens and update those lists periodically (NYSCEF Doc No. 505, ¶¶ 4-5). Kerzic states

that the IARC and the NTP have concluded that mineral spirits, naphthas, toluene, xylene and n-

hexane are not known human carcinogens nor does the NTP list them as reasonably anticipated

to be human carcinogens (id.). Kerzic explains that mineral spirits, naphthas, toluene, xylene

and n-hexane have their own toxicological profile, and while small, trace amounts of benzene

may be present, this does not impact the chemical’s toxicity (id., ¶ 6). Kerzic cites numerous

studies discussing whether mineral spirits, naphthas, toluene, xylene and n-hexane are toxic to

the hematopoietic system, including evaluations by the United States Environmental Protection

Agency (USEPA) on the carcinogenic potential of toluene and xylene, and states that none

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reported damage to the hematologic system or that exposure increased the risk of developing

MDS or cancer (id., ¶¶ 9-14). Thus, DuPont has demonstrated that the solvents in its products to

which plaintiff was allegedly exposed are not capable of causing his particular condition.

DuPont has also shown that Dr. Harrison appears to have improperly relied on benzene

studies to conclude that the solvents in its products can cause MDS. The Court of Appeals has

explained that, where benzene is a component of another substance, such as gasoline, the “[k]ey

… is the relationship, if any, between exposure to gasoline containing benzene as a component

and AML” (Parker, 7 NY3d at 449-450). In Parker, “[p]laintiff’s experts were unable to

identify a single epidemiologic study finding an increased risk of AML as a result of exposure to

gasoline” (id. at 450; see also Burst v Shell Oil Co., 650 Fed Appx 170, 173 [5th Cir 2016]

[granting summary judgment where “Dr. Harrison made no attempt to demonstrate how

benzene-specific studies could reliability support his conclusion that gasoline containing benzene

can cause AML, or to explain or demonstrate how he extrapolated his findings with respect to

gasoline from the benzene studies”]). A brief review of plaintiffs’ CPLR 3101 (d) exchange

reveals that Dr. Harrison listed epidemiological studies on benzene, but not the solvents in

DuPont’s products (NYSCEF Doc No. 503, Flora affirmation, exhibit J at 6-7).

Plaintiffs, however, have raised a triable issue of fact in response. In his affidavit, Dr.

Harrison begins by stating that the USEPA, NIOSH, NTP, OSHA, and the California

Environmental Protection Agency have all classified benzene as a known human carcinogen

(NYSCEF Doc No. 636, Chester-Schindler affirmation, exhibit 7, Dr. Harrison 9/14/2023 aff at

21-22). Dr. Harrison cites numerous epidemiological studies that state exposure to benzene can

significantly increase the risk of developing MDS/AML (id. at 17-20), including a study by the

IARC in 1966 (id. at 20). Dr. Harrison opines that “occupational exposure to benzene, including

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organic solvents containing benzene, is a cause of MDS/AML” (id. at 16). Dr. Harrison further

elaborates on the effects of benzene on blood and bone marrow and the existence of benzene in

solvents refined from petroleum in his 187-page affidavit in the Cole/Arpino Actions (id., ¶¶ 53-

76, 78, 81-82 and 106). Dr. Harrison cites specific studies in which persons exposed to organic

solvents containing benzene, such as toluene, were found to have bone marrow damage or

increased risks of cancer, including MDS (id., ¶¶ 117-119, 187 and 223). Dr. Harrison opines:

“Benzene exposure has been shown to cause AML, MDS and other lymphohematopoietic cancers regardless of whether benzene is emitted from straight benzene, hydrocarbon mixtures or chemicals such as toluene, xylene and hexane contaminated with benzene. Indeed, the large majority of benzene epidemiology studies reporting increased risks of cancer involve subjects exposed from mixtures, and not straight benzene, and who are concurrently exposed to other aromatic hydrocarbons. In fact, there is evidence that concurrent exposure to toluene can enhance benzene’s genotoxicity” (id., ¶ 274).

Medina refers to a 1989 study from the IARC reporting on the myelotoxic effects of

benzene-contaminated toluene or xylene and four other studies, including the Peckham Study and

the Kopstein Study, on benzene as a trace impurity in solvents like toluene (NYSCEF Doc No.

635, Chester-Schindler affirmation, exhibit 6, Medina 11/1/2023 aff at 1-2). Given the competing

expert evidence, DuPont’s motion for summary judgment based on general causation is denied

(see Sason v Dykes Lbr. Co., Inc., 221 AD3d 491, 492 [1st Dept 2023]).

B. Specific Causation

Specific causation requires the plaintiff to “provide a[ ] scientific expression linking …

actual exposure to [a toxin] to a level known to cause [the plaintiff’s condition]” (Sason, 221

AD3d at 492, quoting Nemeth, 38 NY3d at 346). It is not enough for an expert to opine that a

plaintiff was “‘frequently’ exposed to ‘excessive’ amounts of [the toxin]” (Parker, 7 NY3d at

449).

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DuPont argues that Dr. Harrison’s anticipated testimony is too generic to constitute a

scientific expression of plaintiff’s exposure level and does not provide a reliable correlation

between plaintiff’s benzene exposure, as calculated by Medina, and the amount of benzene

necessary to cause MDS. DuPont also contends that Medina’s quantitative assessment is too

generic and is not the product of any generally accepted methodology. DuPont, though, merely

points to perceived gaps in plaintiffs’ proof, which is insufficient to satisfy their prima facie

burden on summary judgment (see Dyer, 207 AD3d at 409).

In any event, plaintiffs have raised a triable issue of fact that “plaintiff was exposed to

levels of [benzene] that are known to cause the kind of harm that the plaintiff claims to have

suffered” (Cornell, 22 NY3d at 784 [internal quotation marks and citation omitted]). Medina

employed a “Site Conceptual Model” and a “Two Zone Model with a Constant Emission Rate”

to calculate plaintiff’s exposure to benzene while working at Camera (NYSCEF Doc No. 496,

Flora affirmation, exhibit C at 31 and 37-38). Medina describes the site conceptual model as “a

standard exposure assessment approach to characterize exposures by developing an exposure

profile based on as detailed a description as possible of jobs, tasks, and workplace conditions to

quantify the potential exposure for each task and time period” and that he considered that

sampling data from published sources as well as DuPont’s Carmine Body Shop study from 1978

in his assessment (NYSCEF Doc No. 635 at 3). Medina avers that he chose the Two Zone

Model to assess plaintiff’s exposure to DuPont’s primers, paints and thinners because this

“model is explicitly designed to calculate near-field concentrations and is most appropriate for

specific tasks performed at close range from the breathing zone where that is the main

contribution to inhalation exposure” (id. at 4). In a supplement to his original report, Dr.

Harrison avers that “MDS is often a precursor to acute myelogenous leukemia (‘AML’) and,

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therefore, studies evaluating the causes of AML are relevant to the causes of MDS” (NYSCEF

Doc No. 637, Chester-Schindler affirmation, exhibit 7, Dr. Harrison 10/9/2023 aff at 2 n). Dr.

Harrison states that “[c]umulative dose benzene exposure is a commonly used metric for

assessing risk of disease,” and that “peak level benzene exposure are predictors of AML, MDS

and leukemia risk” (NYSCEF Doc No. 636, ¶ 276). Dr. Harrison then discusses several studies

correlating specific levels of benzene exposure to MDS or AML and concludes to a reasonable

degree of medical certainty that plaintiff’s cumulative exposure to defendants’ products was

sufficient to cause his MDS (NYSCEF Doc No. 636 at 1). Given the competing expert evidence,

DuPont’s motion for summary judgment based on specific causation is denied.

CONCLUSION

Accordingly, upon the foregoing papers and after oral argument, it is

ORDERED that the motions of defendants Exxon Mobil Corporation (motion sequence

no. 022), Atlantic Richfield Company (motion sequence no. 023), and Shell Oil Company

(motion sequence no. 027) for summary judgment are granted, and the complaint and all cross-

claims are dismissed as against them; and it is further

ORDERED that the said claims and cross-claims as against defendants Exxon Mobil

Corporation, Atlantic Richfield Company, and Shell Oil Company are severed and the balance of

the action shall continue; and it is further

ORDERED that the Clerk of the Court shall enter judgment in favor of defendants Exxon

Mobil Corporation, Atlantic Richfield Company, and Shell Oil Company dismissing the claims

and cross-claims made against them in this action, together with costs and disbursements to be

taxed by the Clerk upon submission of an appropriate bill of costs; and it is further

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ORDERED that the motion of defendant Zep Inc., sued individually and as successor-in-

interest to Acuity Specialty Products, a division of Acuity Brands, Inc., successor-in-interest to

Lighting Equipment and Chemical Divisions of National Services Industries, Inc., D/B/A Zep

Manufacturing F/K/A National Linen Service Corporation, for summary judgment (motion

sequence no. 024) is granted to the extent of dismissing that part of the first cause of action

predicated on a design defect and a failure-to-warn, dismissing the third cause of action in its

entirety, and dismissing plaintiffs’ request for punitive damages, and that part of the first cause

of action predicated on a design defect and a failure-to-warn, the third cause of action, and

plaintiffs’ request for punitive damages are dismissed as against said defendant, and the balance

of the motion is otherwise denied; and it is further

ORDERED that the motion of defendant Rust-Oleum Corporation, sued individually and

as successor-in-interest to Rust-Oleum Corporation, for summary judgment (motion sequence

no. 025) is denied; and it is further

ORDERED that the motion of defendant E.I. DuPont de Nemours and Company for

summary judgment (motion sequence no. 026) is denied; and it is further

ORDERED that the Clerk shall mark the file accordingly.

This constitutes the Decision and Order of the court.

$S

N;Jl~ HON. NANCY M. BANNON 4/26/2024 IG$ DATE CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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