Document zzLdQVe6x1LnXm90jjydGmNEa

FILE NAME: General Electric (GE) DATE: 0000 DOC#: GE099 DOCUMENT DESCRIPTION: Legal - Roth vs. GE, Memo in Opposition to GE1 Motion for Partial Summary Judgment NEW YORK STATE SUPREME COURT COUNTY OF NEW YORK -------------------- X In Re: New York City Asbestos Litigation Index No. X LILA ROTH, Executrix o f the Estate o f JOSEPH ROTH, and LILA ROTH, Individually, Plaintiffs, -against- GENERAL ELECTRIC COMPANY, D efen d an t32* AFFIRMATION AND MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT GENERAL ELECTRIC'S MOTION FOR PARTIAL SUMMARY JUDGMENT X JERRY KRISTAL, an attorney duly adm itted to practice law before the Courts o f the State o f New York, hereby affirm s the truth o f the following under penalties o f peijury: 1 .1 am an attorney at law licensed to practice in the State o f New York. I am associated w ith the law firm o f W eitz & Luxenberg, P.C., counsel for plaintiffs in this action. I am fully fam iliar with the facts and circumstance o f this action. 2. This affirm ation is subm itted in opposition to the m otion for partial summary judgm ent submitted by defendant General Electric Company 0 `GE"). 3. As discussed more fully below, G E's m otion m ust be denied as GE's conduct, in failing to adequately w arn o f the hazards o f asbestos, clearly establishes that it acted with reckless disregard for the safety o f others. L GENERAL ELECTRIC MANUFACTURED AND SOLD MANY DIFFEREN T ASBESTOS -CONTAINING M ATERIALS AND M ANUFACTURED AND SOLD A VARIETY O F EQ U IPM EN T W H ICH REQUIRED TH E USE O F ASBESTOS CONTAINING M ATERIA LS IN AND ON TH EM 4. The General Electric Company ("GE") is a large, diverse company, incorporated in New Y ork in the early 1890's. (M arjorie D rucker, GE designee as the person m ost knowledgeable as to G E's historical knowledge o f the hazards o f asbestos and G E's historical use o f asbestos, Deposition Transcript ["D rucker Tr."] at 297; all cited Drucker Tr. pages attached as Exhibit "A"). Since the 1920's, GE has had plants, for m anufacturing and service, all over the United States. (D rucker Tr. at 298-299). Since at least that tim e, GE has manufactured and sold many different asbestos containing m aterials ("ACMs"). GE also m anufactured and sold a variety o f equipment which required the use o f ACMs in and on them. Additionally, GE m anufactured and sold equipment (specifically, x-ray equipment) that was promoted, as early as 1935, as being necessary for the diagnosis o f pneumoconioses (dust diseases) including, specifically, asbestosis. 5. GE's use o f asbestos, over the decades since the 1920's, in the m anufacture o f ACMs was extensive. The range o f ACMs GE m anufactured and sold included: w ire and cable products, heater cord, insulating tape, gaskets, arc chutes, and asbestos phenolic resins and plastic compounds, including "Genal" and "Textolite". (Drucker Tr. at 299-333,411-415,439443; see also, GE Answers to Interrogatories, first pages o f all "Attachm ent l"s" attached as Exhibit "B") M oreover, the quantity o f raw asbestos used by GE was staggering. For example, one asbestos phenolic resin, Genal, was m anufactured by GE from the 1920's to 1972. (D rucker Tr. at 439-452) W hile the amount o f asbestos used in the m anufacture o f this product over the years had not been increasing, GE, in the m anufacture o f this single product in a single year (1970), used four m illion pounds o f asbestos fiber.(Drucker Tr. at 444-445) 6. The equipment m anufactured and sold by GE that required ACMs, both in and on them, included: land turbines and turbine-generator sets, marine turbines, including propulsion turbines and turbine-generator sets and pum p turbines, railroad cars, je t engines, m otors, generators and transform ers. (Id.) The particular pieces o f equipm ent involved in this case are marine turbines. These turbines contained ACM s in and on them and such use o f ACMs was known by GE since the 1930's. That GE knew its turbines required the use o f large quantities o f ACMs comes as no surprise. 7. GE invented the steam turbine for land-based use in the 1800's and has been in the turbine business for Navy ships since the early 1900's. (David Hobson, GE designated marine turbine representative, Adams D eposition Transcript, 12/17/01, at 27-28, all cited Adams Tr. pages attached as Exhibit "C") Turbines are large pieces o f equipment that utilize superheated steam to provide energy to rotate a shaft w ithin the turbine. The shaft o f the turbine is connected to other pieces o f equipment. The use to which a particular turbine is put depends on the equipment to which it is connected. Ships required a number o f turbines to be installed on them as turbines aboard ships were used for three distinct purposes: ship propulsion, the generation o f electricity and to drive pumps.(Hobson, Adams at 22-23) 8. W hen used for propulsion, the turbine is connected to the propeller o f the ship. Each propulsion "turbine" really consisted o f two turbines (a high pressure turbine and a low pressure turbine). (Hobson, Adams at 43) M oreover, different classes o f ships had varying numbers o f propellers and, therefore, varying numbers o f turbines that were used for propulsion. For example, destroyers had one propeller and therefore, two turbines for propulsion, w hile aircraft carriers had four propellers and, therefore, eight turbines solely for propulsion purposes. (Hobson, Totman Deposition Transcript, 3/25/02,at 57-58, all cited Totman Tr. pages attached as Exhibit "D") 9. W hen used to generate electricity, turbines were connected to generators and sold as "turbine-generator sets". Ships often had m ultiple turbine-generator sets. For example, carriers had between four and sixteen turbine-generators on board. (Id.) 10. GE has historically been a m ajor supplier o f turbines for Navy ships. During the explosion o f shipbuilding in the 1930's and 1940's, GE had a huge percentage o f the Navy m ain propulsion turbine business. (See, GE graph o f percentages o f N avy ships built between 1933 and 1943 that contained GE turbines dem onstrating that 32% o f carriers, over 48% o f destroyers, over 56% o f battleships, over 79% o f escort destroyers and over 82% o f cruisers had GE turbines, attached as Exhibit "E") .GENERAL ELEC TR IC SPEC IFIED TH E USE OF ASBESTOS INSULATION ON ___________________ IT S NAVY TU RBIN ES 11. It w as, and is, no surprise that turbines and turbine-generator sets, driven by superheated steam, required the use o f therm al insulation and that, historically, this insulation contained asbestos. (Hobson, Chang D eposition Transcript, 11/2/01, at 72, 7 6 ,7 9 , all cited Chang Tr. pages attached a^E xhibit "P ^ as to generators, Hobson, Totman at 56.) The use o f asbestos insulation on GE turbines has been described by GE as "common knowledge, "common practice" and "custom". (Hobson, Ingraham D eposition Transcript, 9/5 /02 , at 19-20,31,62, all cited Ingraham Tr. pages attached a^B xhibit "G ^ 12. Perhaps most significantly, such use o f asbestos-containing insulation, including large quantities o f asbestos cloth, asbestos cement and asbestos felt was specified bv GE in its design o f Navy turbines. The specification o f the use o f asbestos was contained in such GE drawings as the "M aster Plan: Lagging" for steam turbines. (See^ p ib iP T ^), GE M aster Plan: Lagging, 1944). This particular drawing alone specifies 90 square feet o f asbestos felt, 170 square feet o f asbestos cloth, 30 square feet o f asbestos "plastic" insulation, 3 lbs. o f asbestos tw ine and 150 lbs. o f asbestos cement. (Id.) GE not only specified the use o f these asbestos m aterials, but also specified such details as the specific thicknesses to be used, the type o f finishes to be used, and the drying tim e for the asbestos cement (Id.). 13. The use o f asbestos insulation and the use o f large amounts were both, therefore, not only entirely foreseeable by GE, but known by GE. (Hobson, Norman D eposition Transcript, 12/1/4/95, at 55-60, all cited Norman Tr. pages attached as(^xhibit `T ^ see also, series o f historical GE turbine plant photographs showing insulation on parts o f the turbines in the factory, attached as Exhibit "J"). A fter all, GE has described its turbines as "big", "large" and "huge" (Hobson, Ingraham at 22) and GE knew that m ost ships had m ultiple turbines. 14. Finally, during installation o f the turbines on board ship, GE field representatives, part o f the GE Installation and Services Engineering Department, w ould be present. (Hobson, Adams at 37-38, see also GE historical photograph o f GE em ployees on board ship during turbine "trials" w ith portion o f insulated turbine visible, attached as Exhibit "K") A t tim es, these GE representatives would inspect the insulation itself and, if not done to his/her satisfaction, "advise and counsel" that it be done properly or re-done. (Hobson, Rudolph Deposition Transcript, 4/27/99 at 124, all cited Rudolph Tr. pages attached as Exhibit "L") 15. Armed w ith clear knowledge that asbestos insulation was specified by it and was required on its turbines and turbine-generator sets, GE obviously foresaw that individuals who installed and/or were present during the installation o f the insulation, in confined quarters on board ships, would be exposed to asbestos. 1II.GENERAL EL EC TR IC TURBINES ALSO CONTAINED ASBESTOS COMPONENTS AND GENERAL ELECTRIC SEPARATELY SOLD THESE ASBESTOS COM PONENTS TH RO U G H IT S "A FTERM A RK ET" BUSINESS AS SPARE AND REPLACEM ENT PARTS 16. Independent o f the fact that GE turbines and turbine-generator sets required the use o f asbestos insulation on them, GE also designed and m anufactured this equipment w ith asbestos components in them and was in the business o f supplying these asbestos components, both as spare parts and as replacem ent parts. 17. GE turbines contained asbestos gaskets and asbestos packing in various locations o f the equipm ent up through the 1980's. (See H obson Adams at 26-27,54-62,78; Hobson Toiman at 20). As "loose" parts supplied along w ith its turbines, GE also supplied the asbestos gaskets that were placed in between the pipe flanges connecting the steam pipes to the turbines, (Id. Hobson Adams at 57). In its turbine replacem ent parts business, GE m aintained a w arehouse at its turbine manufacturing plant in Lynn, M assachusetts or ordered the parts directly from the initial manufacturer for the turbine custom er (Id. Hobson Adams at 60-61; Hobson Totman at 20) IV . GENERAL ELEC TR IC HAD EARLY. EXTENSIVE AND DETAILED KNOW LEDGE O F TH E HAZARDS O F EXPOSURE TO ASBESTOS. INCLUDING. BY TH E LA TE 1940'S. K N O W LED G E TH A T ASBESTOS COULD CAUSE B O TH LUNG AND PLEURAL CANCERS. AND INCLUDING KNOW LEDGE O F TH E HAZARDS TO "END PRODUCT" USERS AND BYSTANDERS" 18. GE's extensive use o f asbestos and extensive m anufacture and sale o f ACMs, including equipment in and on w hich ACMs w ere required, is only surpassed by die early and staggering amount o f knowledge it possessed regarding the hazards o f asbestos exposure, the universe o f those at risk for asbestos diseases and the steps necessary to reduce the risks. 19. GE's knowledge o f the hazards o f asbestos, dating back to the 1930's, was obtained by GE from a variety o f sources. Those source o f inform ation included: a) GE's large staff o f physicians and other medical personnel, industrial hygienists and safety engineers; b) outside consultants, including those specifically hired in the 1930's to address the hazards o f asbestos in GE factories; c) publicly available inform ation, such as textbooks o f which GE was aw are, including the 1938 text "Silicosis and A sbestosis" and the 1949 text "Industrial Toxicology", co-authored by G E's 1930's asbestos consultant and which included a section on asbestos and lung cancer; d) information sent to GE by associations involved w ith industrial health and safety to which GE belonged, including the National Safety Council (NSC), the Industrial Hygiene Foundation (IHF) and the American A ssociation o f Industrial Physicians and Surgeons (AAIPS).(see Drucker Tr. at 498-499) 20. A t the recent deposition o f GE's designee on the subject o f G E's historical knowledge o f the hazards o f asbestos, GE has adm itted that by the 1930's it knew the following: a) asbestos exposure could cause the disease asbestosis (D rucker Tr. at 664); b) asbestosis could be disabling and could cause death(Drucker Tr. at 571-575); c) symptoms o f asbestosis included dyspnea (shortness o f breath), anorexia, cyanosis (blue coloration due to lack o f oxygen), w eight loss and em aciation (D rucker Tr. 784-792); d) asbestosis, once acquired, was perm anent, untteatable and incurable (Drucker Tr. 817819; e) asbestosis was a "chronic" disease, not an acute disease, requiring a num ber o f years to develop (latency) (Drucker Tr. 464-465,654-655; f) individuals were exposed to asbestos dust, not only from w ork in factories, but from the use o f asbestos-containing products, such as asbestos- containing insulation used on boilers, engines, pipes and other equipm ent (Drucker Tr. 792-793); g) that such asbestos exposures from asbestos- containing insulation occurred in those handling and applying such products in buildings and ships during construction and repair (Drucker Tr. 792-795); h) individuals at risk for pneum oconioses, including silicosis and asbestosis, included those working near others who were creating dust (Drucker Tr. 540-542, re: silica, Tr. 551-552 re: silica, Tr. 556-558 re: lead, Tr. 575-582, particularly 582, re: asbestos); i) the defense mechanisms o f the lungs were unable to cope w ith the fine fibrous insoluble particles o f asbestos (D rucker Tr.638-644); j) the dust that w as m ost dangerous w as so small as to be invisible to the naked eye, unless gathered in a dense cloud (D rucker Tr. 712,811-813); k) the "toxic lim it" for asbestos o f 5 m illion particles per cubic foot o f air was a very sm all concentration, so sm all that the condition may look good to a critical eye, but still present a dangerous exposure, and was invisible to the naked eye (D rucker Tr. 712-715 and 816-817). 19. Critically, by the late 1940's, GE knew asbestos could cause cancer and, specifically, cancers o f the lung and pleura. (D rucker Tr. 827 and 937; see also discussion generally, Drucker Tr. 819-832) 21. N ot only did GE have the knowledge o f the hazards as noted above, but GE also knew how to reduce the hazard. GE knew in the 1930's that some o f the m ethods to suppress asbestos dust and thereby reduce the hazards from asbestos included: a) w etting the m aterial (D rucker Tr. 935,609-611; b) local exhaust ventilation (Drucker Tr. 935,624); c) separating more dusty processes from less dusty or non-dusty processes (obviously, thereby reducing the risk to "bystanders") (D rucker Tr. 935,575-582, particularly 582); d) using positive pressure air helm et respirators which supplied outside air and were different than simple face masks (D rucker Tr. 620-624). 22. Perhaps m ost im portantly in a "failure to warn" case, GE knew, in the 1930's, that in order for a workers to protect them selves from asbestos dust, they needed to know that they were being exposed to som ething that w as hazardous. (Drucker Tr. 935-936). V. GENERAL EL EC TR IC HAD NUM EROUS MEANS OF W ARNING TH O SE EXPOSED TO ASBESTOS DUST FROM ASBESTOS-CONTAINING M ATERIALS IN AND ON GENERAL ELEC TR IC EQUIPM ENT 23. Armed w ith extensive knowledge regarding the hazards o f asbestos and the m eans to reduce the risk, GE also had a num ber o f different means w ith which to effectively communicate an adequate warning. GE knew that it could communicate warnings to those using and w orking around its equipment by placing a warning on the surface o f its equipment itself. For exam ple, GE specifically utilized the surface o f the equipm ent, by placing a "CAUTION" on the nam eplate o f its turbines, a location GE knew would not be covered and w ould perm anently rem ain w ith the equipm ent.(see E xhibit "M ") 24. The nameplate caution utilized by GE cautioned workers to read another means o f communicating a wam ing-the instruction m anual that accompanied the equipm ent. These manuals were another source o f com m unication as they were m aintained on board ships and referred to by those working on and w ith the turbines. Further, GE knew that it could place warnings in the instruction m anuals themselves. For example, GE, in its equipm ent m anuals, at