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PLAINTIFF’S EXPERT EVIDENCE WAS NOT SUFFICIENT TO DEMONSTRATE PLAINTIFF INHALED ENOUGHT ASBESTOS FIBERS TO CAUSE HIS CANCER; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff did not present sufficient expert evidence that his exposure to asbestos from defendant ABI’s vinyl floor tiles and sheet flooring caused his cancer. Plaintiff was an electrician and he alleged he worked in close proximity to workers installing ABI’s flooring:

[I]n asbestos exposure and other toxic tort cases, “an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)” …  As to specific causation, “there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are known to cause the [relevant] harm” … .

… “[B]ecause there are times that ‘a plaintiff’s exposure to a toxin will be difficult or impossible to quantify by pinpointing an exact numerical value,’ ‘it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community'” … . …

Plaintiff’s opposition failed to raise any issue of fact as to specific causation. A showing that the decedent “work[ed] in dust laden with asbestos generated from products containing asbestos” accompanied by “expert testimony that dust raised from manipulating asbestos products ‘necessarily’ contains enough asbestos to cause mesothelioma” is not enough … . Plaintiff’s medical expert did point to simulation studies measuring an average level of airborne asbestos as high as 0.27 f/cc during the cutting, sanding, and snapping of asbestos-containing floor tile. He did not, however, provide any correlation between the asbestos fiber levels to which plaintiff may have been exposed and the amount of inhaled asbestos that would have caused decedent’s lung cancer … .Pomponi v A.O. Smith Water Prods. Co., 2022 NY Slip Op 04612, First Dept 7-19-22

Practice Point: The general evidentiary requirements for a plaintiff’s prima facie case in an asbestos-exposure care are clearly explained. Plaintiff’s expert evidence was not sufficient to raise a question of fact about whether the exposure caused his cancer.

 

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