Wilson v. 3M Company (2013)

Our plain-English summary of Wilson v. 3M Company (New York Supreme Court, December 4, 2013).

Ethel Wilson sued 3M Company, Belden Wire and Cable Co., and other defendants, individually and as executrix of the estate of her husband Carmen Wilson. He worked for over 50 years as an electrician installing fire alarms, switches and other fire safety equipment, and was diagnosed with mesothelioma in February 2011. He died in July 2011 without being deposed. His son Scott, a former co-worker, testified that he saw his father use Belden multi-conductor feeder cables and believed they contained asbestos, based on general knowledge his father passed on. Belden's representative, Mr. Suddeth, said Belden's feeder cables were asbestos-free and that the only asbestos-containing multi-conductor cable it made was heater cordage for small appliances. Belden asked the court to renew its earlier summary judgment motion, which had been denied. The court allowed renewal but again denied summary judgment. It found no documents supporting Suddeth's conclusion and held that the weight to give the two witnesses' testimony was a question for a jury.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court
• Decided: December 4, 2013
• Citation: 2013 NY Slip Op 33686(U)
• Docket: Docket No. 190143/11, Motion Seq. No. 20
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted Belden Wire and Cable's motion to renew but, on renewal, again denied Belden's motion for summary judgment, so the plaintiff's claim against Belden continues.

What the court held. Conflicting testimony about whether the defendant's cable contained asbestos raises a credibility question that a jury must decide, so summary judgment cannot be granted on a motion where the court would have to weigh the testimony.

Issues decided: Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Carmen Wilson: mesothelioma; died

Who	Work	Where	When	Products
Carmen Wilson	electrician installing fire alarms, switches, and other fire safety equipment (construction)	New York	over 50 years	Belden multi-conductor feeder cables

The defendants

• Belden Wire and Cable Co., LLC (manufacturer)
• 3M Company

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Wilson v. 3M Co. (December 4, 2013). The trial court denied summary judgment motions by American Insulated Wire Corporation and Leviton Manufacturing Co., leaving the plaintiffs' claims against both defendants to proceed.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Dollas v. WR Grace & Co. (New York Supreme Court, Appellate Division, 1st Dept., 1996). The Appellate Division reversed the grants of summary judgment to W.R. Grace against plaintiffs Dollas and Gargano, finding a fact question on whether the decedents were exposed to Grace's Monokote.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2013 NY Slip Op 33686(U)

ETHEL WILSON, Individually and as Executrix of the Estate of CARMEN WILSON, Plaintiffs,

v.

3M Company, etal., Defendants.

Docket No. 190143/11, Motion Seq. No. 20.

December 2, 2013.

Filed December 4, 2013.

Supreme Court, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge.

This motion is decided in accordance with the memorandum decision dated 12.2.2013.

Defendant Belden Wire and Cable Co., LLC ("Belden") moves pursuant to CPLR 2221(e)[1] for leave to renew the prior order of this court, dated July 8, 2013, and upon renewal, for an order granting its underlying motion for summary judgment. Belden's motion to renew is granted, and upon such renewal, the court adheres to its decision denying Belden summary judgment.

Plaintiff's decedent Carmen Wilson worked as an electrician for over 50 years installing fire alarms, switches, and other fire safety equipment in public buildings, schools, and homes in and around the New York metropolitan area. He was diagnosed with mesothelioma on or about February 14, 2011. The summons and complaint herein was filed on April 20, 2011. Mr Wilson passed away on July 23, 2011 without having been deposed. Carmen Wilson's son and former co-worker, Scott Wilson, testified on his father's behalf.[2]

Scott Wilson first accompanied his father to work in or about 1964 or 1965 when he was approximately seven or eight years old. He assisted his father on an as-needed basis until the mid 1980's. Relevant to this motion is Scott Wilson's testimony that he observed his father work with Belden multi-conductor feeder cables (Deposition pp. 93-94, 199-201, 203, 430-31): Q. Do you know the brand name, trade name or manufacturer name of any of that wire? . . .

A. We typically when we were doing rough construction or we were doing — again, depending on the type of job, depending on the type of whether it's fire alarm or regular rough electric or whatever it might be, the wire might be a different manufacturer but we used spools of Carol, we used Belden, we used GE wire. . . . * * * *

Q. So, am I correct you can't tell me a specific application or use that you recall your father using a Belden product for. . .?

A. I know that it was used. I know he used it for, you know, feeder cables, for wiring strict regular electrical work. But do I know particular types of gauges and so on that he used, no?

Q. So, do I understand you observed him using a Belden product as a feeder cable?

A. Uh-huh. . . .

Q. Do you have any knowledge one way or the other whether the particular application would have called for an asbestos product or not?

A. I have no idea.

Q. Do you have any knowledge one way or the other whether the product that you observed him [] use would have contained asbestos or not?

A. It certainly could.

Q. Do you have any knowledge of whether it did one way or the other?

A. I had no literature that said one way or the other, no.

* * * *

Q. And you said you recalled your father using feeder cable that you understood to be Belden. What you just described, do you have any recollection of seeing him use that specific thing at a particular place and time? A. I do recall using that particular thing at a location when he was putting up an aerial one time, so a feed going in from a pole, from an electrical pole to a meter pan.

* * * *

Q. And in your previous testimony you mentioned Belden feed cable generally and you said that it was three or four conductors.

A. That certainly could be yes. * * * *

Q. . . . Do you have any personal knowledge as to whether the Belden cable that you observed your father work with in the manholes, any job site including the Mercy college, contained asbestos?

A. I believe it to be so, yes.

Q. What is the basis of your belief?

A. Again, just general knowledge that my dad passed on to me.

On its underlying motion for summary judgment, Belden submitted an affidavit from its corporate representative, Mr. William Suddeth,[3] in which he stated that the Belden wires described by Scott Wilson were asbestos-free. In denying Belden's underlying motion, this court noted that "Belden provided no documentation to substantiate Mr. Suddeth's conclusions" and directed that Belden produce Mr. Suddeth for a deposition by plaintiff.[4]

Mr. Suddeth appeared for his deposition on August 28, 2013. He testified to having examined numerous corporate documents, including product catalogs and part number assignment books which specified the numerous custom made products manufactured by Belden not found in its catalogs.[5] On this premise, Mr. Suddeth concluded that the only asbestos-containing multi-conductor feeder cable that Belden manufactured was heater cordage for small appliances like toasters or irons, and that such cords would not have been approved for applications like the one described by Scott Wilson. There is no documentary evidence before the court in support of Mr. Suddeth's conclusion. Thus, the record herein consists primarily of Scott Wilson's deposition testimony that his father was exposed to asbestos from Belden feeder cables and Mr. Suddeth's deposition testimony that such feeder cables would not have contained asbestos. The weight to be given to their respective testimonies cannot be determined by this court as a matter of law, but must instead be determined by a jury at trial. Asabor v Archdiocese of N.Y., 102 AD3d 524, 527 (1st Dept 2013) (it is not the court's function on a motion for summary judgment to access credibility); Alvarez v NY City Hous. Auth., 295 AD2d 225, 226 (1st Dept 2002) ("Any inconsistencies in the several accounts of the incident go to the weight of the evidence, not its competence, and the value to be accorded to the evidence is a matter for resolution by the trier of fact."); Josephson v Crane Club, Inc., 264 AD2d 359, 360 (1st Dept 1999) (deposition testimony submitted in opposition to a summary judgment motion constitutes evidence in admissible form by someone with personal knowledge of the facts); Dollas v W.R. Grace & Co., 225 AD2d 319, 321 (1st Dept 1996) ("The assessment of the value of a witnesses' testimony constitutes an issue for resolution by the trier of fact. . .").

Accordingly, it is hereby

ORDERED that Belden Wire and Cable Co., LLC's motion to renew is granted, and upon renewal, Belden Wire and Cable Co., LLC's motion for summary judgment is denied in its entirety.

This constitutes the decision and order of the court.

[1] A motion for leave to renew pursuant to CPLR 2221(e):

"1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion." [2] Scott Wilson was deposed on January 27, 2012, April 20, 2013, and April 23, 2012. Copies of his deposition transcripts are plaintiffs' exhibits 3 and 4 ("Deposition").

[3] Mr. Suddeth's affidavit, sworn to November 28, 2012, was submitted as exhibit A to Belden's underlying motion. [4] A copy of this court's prior order is submitted on this motion as defendant's exhibit A.

[5] For purposes of his deposition, Mr. Suddeth's review of the part number assignment books was limited to certain work locations and did not cover all of the custom made products manufactured by Belden.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites