In this case, the plaintiff Melvin Desin, an electrician, alleged that he was exposed to asbestos while working at various job sites in the 1960s and early 1970s, including on seven or eight occasions in the vicinity of painters employed by defendant Zelinsky, a painting contractor. At his deposition, the plaintiff testified that he worked in close proximity to the Zelinsky workers, who patched and sanded walls and joint compound in his presence. However, the plaintiff could not identify the brand name, manufacturer, or supplier of any of the materials the Zelinsky workers used. He also could not recall any particular year when he worked around Zelinsky employees, or a specific instance in which the employees sanded walls.
Zelinsky moved for summary judgment on the basis that the plaintiff failed to produce any admissible evidence that he was exposed to asbestos products that it supplied, distributed, handled, or used. In opposition, the plaintiff submitted a declaration stating that when he worked in the vicinity of Zelinsky’s employees, dust from joint compound would end up on his clothing, face and hair and on the job site floor. He also submitted an expert declaration by William Ewing, an industrial hygienist, which stated that joint compound products during that time period “nearly universally” contained asbestos and that the joint compound to which the plaintiff was exposed “more likely than not” contained asbestos. The trial court sustained defense objections to both the plaintiff’s and Ewing’s declarations and granted summary judgment in Zelinsky’s favor.
The intermediate appellate court affirmed, noting that the plaintiff’s own testimony established that he did not know if he had been exposed to asbestos by working in the vicinity of Zelinsky employees, that he could not identify a particular instance in which he worked around Zelinsky employees, and that he did not know the brand name, supplier, or manufacturer of any materials the workers applied or sanded in his presence. The plaintiff’s discovery responses, identifying certain drywall products, did not establish that those products used by Zelinsky in the 1960s and 1970s actually contained asbestos or that the products were used on the seven to eight occasions that the plaintiff worked alongside Zelinsky employees. Further, Ewing’s expert opinions lacked a proper foundation and could not “fill the gap” in the plaintiff’s evidence. The court held: “[i]n the absence of admissible evidence that Desin was exposed to asbestos-containing products as a result of the activities of Zelinsky employees, we conclude plaintiff failed to carry the burden to show a triable issue of material fact.”