Supreme Court of New York, New York County, May 11, 2021
The plaintiff alleged that the decedent, Alvin Smith, was exposed to asbestos from skinning, stripping, and pulling asbestos-containing wire and cable manufactured by the defendant, Ericsson, Inc.’s predecessors, Anaconda Wire & Cable Company and Continental Wire & Cable Company, at various locations throughout his career. Mr. Smith testified during his deposition that he was exposed to asbestos dust during his work with these products. Ericsson moved for summary judgment arguing that the plaintiff failed to establish causation.
On its motion, Ericsson argued that it did not cause or substantially contribute to Mr. Smith’s mesothelioma, because its expert, William Longo, Ph.D., was able to determine Mr. Smith’s level of exposure to asbestos from the work he identified with wire and cable, and found that such exposure was below detection limits of the National Institute of Occupational Safety & Health. As such, Dr. Longo concluded that Continental Wire “would not have any significant occupational exposure to airborne asbestos fibers.”
In opposition, the plaintiff argued that Mr. Smith extensively identified, worked with, and was exposed to asbestos-containing wire and cable manufactured by Anaconda and Continental at numerous worksites, and submitted catalogs, marketing material, and specification sheets from Anaconda that listed asbestos as a component in its cables. Additionally, the plaintiff submitted a causation report from Dr. Albert Miller, who opined that Mr. Smith’s “cumulative exposure to asbestos from his work with ‘a wide range of asbestos-containing equipment including…cables’ was a substantial contributing factor in the development” of his mesothelioma.
The court held that the fact that Ericsson’s and the plaintiff’s experts disagree was a credibility issue that could not be resolved at the summary judgment stage. Citing to former NYCAL Administrative Judge, Manuel Mendez’s decision in the Marzigliano matter, the court held that Mr. Smith’s testimony regarding the wire and cable that he used, coupled with the plaintiff’s expert report, created facts and conditions from which Ericsson’s liability may be reasonably inferred, and raised issues of fact for the jury. As such, Ericsson’s motion was denied.