Supplemental Depositions from Unrelated Actions Insufficient as Only Evidence of Exposure Supreme Court of New York, April 12, 2019

NEW YORK — The plaintiff John Spicijaric (decedent) was diagnosed with lung cancer in June 2014, and died one week later. Prior to his lung cancer diagnosis, The decedent was also diagnosed with asbestosis. The decedent was deposed in his asbestosis case in 1985, but was never deposed in the present action. The decedent was a member of the Local 12 Asbestos Workers Union, and remained a member through the early 1990s. The defendant Electrolux Home Products (Electrolux) moved for summary judgment, claiming that plaintiff failed to identify its products as a source of the decedent’s asbestos exposure. Additionally, Electrolux argued that supplemental depositions offered by the plaintiff did not properly establish that the decedent was exposed to asbestos from its products sufficient to survive the motion for summary judgment. Electrolux argued that the plaintiff failed to show that Electrolux products were the cause of and/or a contributing factor to the decedent’s asbestos exposure, because the decedent offered no testimony identifying its products as a specific source of such exposure. Furthermore, Electrolux argued that the plaintiff ‘s “supplemental” testimony from unrelated cases could not be used as the sole basis for the court’s summary judgment determination.

The plaintiff argued that it had submitted sufficient evidence to supplement the decedent’s deposition and therefore established that the decedent was exposed to asbestos from Electrolux products. Electrolux argued that the supplemental depositions were not admissible under CPLR 3117(c) because they were taken in prior, unrelated cases, and were not between the same parties as in the plaintiff’s case.

The court held that deposition testimony from unrelated cases may be used to identify a defendant’s product “in use at the relevant work site at the relevant time”, so long as it did not become the sole basis for the court’s summary judgment determination. Here, the supplemental deposition testimony was the only basis for opposing the motion for summary judgment. Thus, the motion for summary judgment was granted.

The case summary is provided with permission of Westlaw here.

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