     07-5185-cv
     Nelson v. Ashland


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
     after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
     this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
     party must cite either the federal appendix or an electronic database (with the notation “summary
     order”). A party citing a summary order must serve a copy of it on any party not represented by
     counsel.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held
 2   at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
 3   New York, on the 27th day of April, two thousand ten.
 4
 5   PRESENT:
 6               JOHN M. WALKER, JR.,
 7               GUIDO CALABRESI,
 8               REENA RAGGI,
 9                                 Circuit Judges. *
10   _________________________________________________
11
12   JOAN NELSON, Individually, and as Representative of the Estate of John D. Nelson,
13             Plaintiff-Appellant,
14
15            -v.-                                            No. 07-5185-cv
16
17   ASHLAND OIL, INC., ASHLAND, INC.,
18               Defendants-Appellees.
19   _________________________________________________
20
21                                   DIANE PAOLICELLI (Nancy A. Perry, on the brief), Levy
22                                   Phillips & Konigsberg, LLP, New York, New York, for
23                                   Plaintiff-Appellant.
24
25                                   THOMAS E. REIDY (Scott R. Jennette, on the brief),
26                                   Ward Norris Heller & Reidy LLP, Rochester, New York,
27                                   for Defendants-Appellees.
28

     *
      The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the
     Supreme Court on August 8, 2009. The Clerk has designated, by random selection, the
     Honorable Reena Raggi to replace her. See Local Rule 0.14(2).


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 1          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court be AFFIRMED.

 3          Plaintiff-Appellant Joan Nelson appeals from a grant of summary judgment in

 4   favor of Defendants-Appellees Ashland Oil, Inc. and Ashland, Inc. (collectively

 5   “Ashland”) by the United States District Court for the Southern District of New York

 6   (Brieant, J.), entered November 6, 2007. Plaintiff argues that she presented sufficient

 7   evidence to raise a genuine issue as to whether her husband, John Nelson (“Nelson”), was

 8   exposed to, and injured by, benzene produced by Defendants. We assume the parties’

 9   familiarity with the underlying facts and procedural history of the case.

10          This Court reviews an order granting summary judgment de novo and focuses on

11   whether the district court properly concluded that there were no genuine issues as to any

12   material fact and that the moving party was entitled to judgment as a matter of law. See

13   Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). In determining

14   whether there are genuine issues of material fact, this Court is “required to resolve all

15   ambiguities and draw all permissible factual inferences in favor of the party against

16   whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)

17   (internal quotation marks omitted).

18          Defendants are entitled to summary judgment in this case because Plaintiff has

19   presented no evidence demonstrating that Defendants produced the benzene to which

20   Nelson was exposed. See Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601

21   (1996) (reiterating “the general rule that one of the necessary elements plaintiff in a strict

22   products liability cause of action must establish by competent proof is that it was the

23   defendant who manufactured and placed in the stream of commerce the injury-causing




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 1   defective product”); see also D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.

 2   1998) (in order to defeat summary judgment the “non-moving party may not rely on mere

 3   conclusory allegations nor speculation”). Plaintiff’s claim that Nelson’s cancer was

 4   caused by exposure to Ashland-produced benzene while working for Kaye-Fries

 5   Chemicals, Inc. from 1961 to 1963 depends on Walter Luther’s observations of used

 6   Ashland benzene drums on the Kaye-Fries premises when Luther started work in 1964.

 7   Luther testified the drums that he observed may have been on the premises for up to two

 8   years prior to his employment at Kaye-Fries, thereby placing the drums at Kaye-Fries at

 9   the time of Nelson’s employment.

10          Nelson testified that he worked with drums of benzene—whose supplier he did

11   not know—with one opening on the top and one opening on the side, specifically

12   recalling that the side opening was used to refill the drums. Luther, however, stated that

13   all of the drums that he observed, which were marked “Ashland,” had openings only on

14   the top and had no openings on the sides. Luther’s testimony was the only evidence

15   presented by Plaintiff that purported to establish that Ashland-produced benzene was

16   present at Kaye-Fries at the time of Nelson’s employment. Neither George Bitler nor

17   Robert Bradshaw, two other witnesses on which Plaintiff relies to establish the presence

18   of Ashland-produced Benzene at Kaye-Fries during the relevant period, was able to state

19   with any degree of certainty that Ashland’s benzene was present at Kaye-Fries from 1961

20   to 1963.

21          Drawing all reasonable inferences in favor of Plaintiff, but noting also the limited

22   nature of Luther’s assertion, which was only that the drums he saw may have been there

23   for up to two years, the differences between the drums described by Nelson and those




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 1   described by Luther deprive the Plaintiff of any evidence that Ashland-produced benzene

 2   was present at the Kaye-Fries plant at the time of Nelson’s employment, and, therefore,

 3   deprives Plaintiff of any evidence that it was Ashland-produced benzene to which Nelson

 4   was exposed. In the absence of other evidence linking Ashland’s benzene to Nelson’s

 5   injuries, the district court properly granted Defendants’ motion for summary judgment.

 6   See Healey, 87 N.Y.2d at 601.

 7          We have carefully considered all of Plaintiff’s other arguments and found them to

 8   be without merit.

 9          For the foregoing reasons, the judgment of the district court is hereby affirmed.

10
11                                                       FOR THE COURT:
12                                                       Catherine O’Hagan Wolfe, Clerk
13
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