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PLAINTIFF DID NOT PRESENT EXPERT OPINION TO SUPPORT THE ALLEGATION HE INHALED SUFFICIENT AMOUNTS OF ASBESTOS TO HAVE CAUSED HIS CANCER; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this asbestos-exposure case did not raise a question of fact about whether his exposure to asbestos was sufficient to have caused his cancer. Plaintiff alleged he was exposed to asbestos when he installed defendant ABI’s vinyl floor tiles. Defendant presented evidence from simulation studies and plaintiff offered no expert evidence in opposition:

In Nemeth v Brenntag N. Am. (___ NY3d ___, 2022 NY Slip Op 02769 [2022]), the Court of Appeals, while recognizing its conclusion in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]) that precise qualification of exposure to a toxin is not always required, stated that causation nonetheless requires plaintiff to provide proof of “sufficient exposure to a substance to cause the claimed adverse health effect” … . …

Plaintiff challenges the opinion proffered by ABI’s expert, who relied upon calculations arising from experiments funded by defendants, in determining that decedent was exposed, if at all, to asbestos in amounts similar to those in ambient air, an exposure insufficient to cause cancer. While the reliability of those calculations could pose an issue of credibility, the fact that they were performed by a paid expert does not automatically invalidate their conclusions. Plaintiff offered no expert to counter ABI’s calculation of decedent’s cumulative lifetime exposure, and thus no question of fact was raised as to its validity … . Killian v A.C. & S., Inc., 2022 NY Slip Op 04610, First Dept 7-19-22

Practice Point: Here defendant presented evidence of simulation studies to show that plaintiff’s exposure to asbestos was not sufficient to have caused his cancer and plaintiff presented no expert evidence in opposition. Defendant’s motion for summary judgment should have been granted.

 

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