May 30, 2018
In In Re: New York County Asbestos Litigation, Alvin Smith and Caroline Smith v. Advance Auto Part Inc., et al., the Supreme Court of the State of New York, New York County denied defendant’s motion for summary judgment despite a product engineer’s conclusion that none of the defendant’s products that plaintiff identified contained asbestos.
Pertinent to this motion, the plaintiff, Alvin Smith, alleged that he was exposed to asbestos while skinning, stripping, and pulling asbestos-containing wire and cable at various locations throughout his career as an electrician. Defendant Belden sought summary judgment on the ground that plaintiff failed to produce evidence that he was exposed to or worked with/near asbestos-containing products made by Belden. Mr. Smith argued that Belden failed to meet its burden of showing that its product could not have contributed to the causation of his injury.
To support its motion, Belden submitted an affidavit from a Belden product engineer who had worked in that capacity since 1989 and was well-versed in the characteristics and construction components of Belden wire and cable products produced since 1904. After reviewing the plaintiff’s deposition testimony about his experience with Belden’s products, the product engineer concluded that none of the Belden products that plaintiff identified and/or described contained asbestos. Specifically, the engineer noted that the plaintiff’s description of Belden speaker wire and bell wire that he worked with fit the description of non-asbestos containing Belden products.
Nevertheless, the court denied the motion and held that the plaintiffs had raised triable issues of fact as to whether the Belden wires plaintiff allegedly worked with contained asbestos. The court found that plaintiff’s presentation of Belden’s promotional literature “reflects its historic usage of asbestos-containing wires during the time period Mr. Smith alleges exposure, made in the same size that Mr. Smith identified in his depositions. “ This, the court concluded, was enough evidence to deny Belden’s motion for summary judgment despite the affidavit of a Belden product engineer.
In weighing the product engineer affidavit, the court reasoned that “Belden provided no documentary evidence to support [the product engineer’s] conclusions. The record in support of Belden’s motion relies solely on Mr. Smith’s deposition testimony and [the engineer]’s unsupported affidavit.” The court relied generally on a principle recited in Meyer v. A.O. Smith Water Prods., Co. that “without more” the weight of conflicting assertions are to be decided by a jury and not on a motion for summary judgment. 2013 Slip Op 30899(U) (Sup. Ct.) citing Asabor v. Archdiocese of NY, 102 AD3d 524, 961 NYS 2d 17 (1st Dept. 2013).
Defendants should be wary in the future of offering a “bare” affidavit of a product expert in order to support its motion for summary judgement. It seems that had the defendant-movant provided some supportive documentary evidence, such as company product offerings and specifications to cross-reference with the product engineer’s conclusions, then the court would have more strongly considered granting the motion for summary judgement. Certainly it would be difficult for a plaintiff to argue with a straight face that the mere “offering” of asbestos-containing products during the time period outweighs the plaintiff’s own testimony regarding the specific products from which he alleges asbestos exposure. Absent such documentary corroboration, the NYCAL court here determined
that the conclusions of a knowledgeable product engineer “without more” are not
enough to merit granting summary judgment.