Toxic Torts – New York Appellate Digest

THE OVER $3,000,000 VERDICT IN THIS TOXIC TORT CASE REVERSED; THE PROOF THAT DEFENDANT’S TALCUM POWDER, WHICH ALLEGEDLY CONTAINED ASBESTOS, CAUSED PLAINTIFF’S DECEDENT’S LUNG CANCER WAS DEEMED INSUFFICIENT; THE STANDARD FOR PROOF OF CAUSATION IN TOXIC TORT CASES DISCUSSED IN DEPTH (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Garcia, over an extensive dissenting opinion, determined the proof of plaintiff’s decedent’s exposure to asbestos in defendant’s talcum powder was not sufficient to demonstrate the powder caused decedent’s mesothelioma (lung cancer). The opinion reviews the toxic-tort caselaw with respect to the sufficiency of proof of causation. That discussion is too comprehensive to fairly summarize here:

Although we have recognized that in any given case it may be “difficult, if not impossible, to quantify a plaintiff’s past exposure” to a toxin … , our standard itself is not “impossible” for plaintiffs to meet … . We must, as always, strike a balance between the need to exclude “unreliable or speculative information” as to causation with our obligation to ensure that we have not set “an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court” … . The requirement that plaintiff establish, using expert testimony based on generally accepted methodologies, sufficient exposure to a toxin to cause the claimed illness strikes the appropriate balance … . The fault here is not in our standard, but in plaintiff’s proof. Nemeth v Brenntag N. Am.. 2022 NY Slip Op 02769, CtApp 4-26, 2022

Practice Point: This Court of Appeals opinion reviews and analyzes the causation proof-requirements for toxic tort cases. Here the proof that asbestos in talcum powder caused plaintiff’s decedent’s lung cancer was deemed insufficient.

April 26, 2022/by Bruce Freeman

PLAINTIFFS’ CAUSES OF ACTION ALLEGING EXPOSURE TO TOXIC FUMES ARE TIME-BARRED PURSUANT TO CPLR 214-C (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the causes of action alleging exposure to toxic fumes and hazardous substances were time-barred:

… [T]he … causes of action [alleging] the purported exposure to toxic fumes and hazardous substances (exposure claims) because they are untimely under the applicable three-year statute of limitations (see CPLR 214-c [2]). … [T]hat statute of limitations began to run from the date of discovery of plaintiff’s injury. Discovery occurs “when the injured party discovers the primary condition on which the claim is based” and not “when the connection between . . . symptoms and the injured’s exposure to a toxic substance is recognized” … . By submitting, inter alia, plaintiff’s deposition testimony and a workers’ compensation claim filed by him in 2011, defendants established that the exposure claims accrued in 2003 when he “made repeated visits to [his] treating providers for symptoms described in [his] bill of particulars as caused by the [chemical] exposure” … , and well over three years prior to the commencement of this action in 2014. To the extent that plaintiff relies on the one-year statute of limitations provided by CPLR 214-c (4), plaintiff cannot avail himself of that limitations period because, inter alia, plaintiff explicitly linked his exposure-related symptoms to exposure at Niagara Lubricant in his workers’ compensation claim, i.e., over one year prior to the commencement of this action … . Cotter v Lasco, Inc., 2021 NY Slip Op 04293, Fourth Dept 7-9-21

July 9, 2021/by Bruce Freeman

Evidence, Negligence, Toxic Torts

PLAINTIFF’S EXPERT RAISED ISSUES OF FACT ABOUT WHETHER EXPOSURE TO ASBESTOS CAUSED THE INJURY TO PLAINTIFF; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert raised questions of fact about whether exposure to asbestos injured plaintiff:

“In toxic tort cases, an expert opinion on causation must set forth (1) a plaintiff’s exposure to a toxin, (2) that the toxin is capable of causing the particular injuries plaintiff suffered ](general causation) and (3) that the plaintiff was exposed to sufficient levels of the toxin to cause such injuries (specific causation)” … . “[T]here must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of the agent that are known to cause the kind of harm that the plaintiff claims to have suffered” … . “[I]t 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” … .

… [T]he plaintiffs submitted expert affidavits raising triable issues of fact as to both general and specific causation … . The conclusions of the plaintiffs’ experts were sufficiently supported by studies and medical literature, and demonstrated specific causation through a scientific method … . The experts’ conflicting interpretations of the underlying studies and literature presented a credibility battle between the parties’ experts, which is properly left to a jury for its resolution … . Pistone v American Biltrite, Inc., 2021 NY Slip Op 03341, Second Dept 5-26-21

May 26, 2021/by Bruce Freeman

Civil Procedure, Negligence, Toxic Torts

EVIDENCE OF CAUSATION IN THE ASBESTOS EXPOSURE CASE WAS SUFFICIENT, MOTION TO SET ASIDE THE VERDICT PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined the evidence of causation in this asbestos exposure case was sufficient to support the plaintiffs’ verdict and the motion to set aside was properly denied:

Although, to prove specific causation, plaintiff and decedent were required to establish that decedent “was exposed to sufficient levels of the toxin to cause” his alleged injuries, “it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship” … . There simply “must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of [the] agent that are known to cause the kind of harm that the plaintiff claims to have suffered” … . Such evidence may include an expert’s use of estimates generated by mathematical models taking a plaintiff’s work history into account, or the use of “more qualitative means” to determine the level of a plaintiff’s exposure, such as comparing the plaintiff’s exposure level “to the exposure levels of subjects of other studies” … . Matter of Eighth Jud. Dist. Asbestos Litig., 2020 NY Slip Op 05621, Fourth Dept 10-9-20

October 9, 2020/by Bruce Freeman

Insurance Law, Negligence, Toxic Torts

SUPREME COURT SHOULD NOT HAVE HELD AS A MATTER OF LAW THAT THE TRIGGERING EVENT FOR INSURANCE COVERAGE FOR ASBESTOS-INJURY IS THE FIRST EXPOSURE TO ASBESTOS AS OPPOSED TO EXPOSURE TO A CERTAIN LEVEL OF ASBESTOS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court in this asbestos exposure case, held it should not have been determined as a matter of law that insurance coverage is triggered by the first exposure to asbestos, as opposed after exposure to a certain level of asbestos:

The parties do not dispute that the applicable test in determining what event constitutes personal injury sufficient to trigger coverage is injury-in-fact, “which rests on when the injury, sickness, disease or disability actually began” … . Rather, the parties dispute when an asbestos-related injury actually begins: plaintiffs assert that injury-in-fact occurs upon first exposure to asbestos, while defendant denies that assertion and instead maintains that injury-in-fact occurs only when a threshold level of asbestos fiber or particle burden is reached that overtakes the body’s defense mechanisms. The court concluded, as a matter of law, that injury-in-fact occurs upon first exposure to asbestos. … [T]he court erred in that regard, and we therefore modify the judgment by denying the subject motion for partial summary judgment and vacating the declaration with respect to that motion. Carrier Corp. v Allstate Ins. Co., 2020 NY Slip Op 05620, Fourth Dept 10-9-20

October 9, 2020/by Bruce Freeman

Civil Procedure, Municipal Law, Negligence, Toxic Torts

PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE CITY OF NEW YORK SHOULD NOT HAVE BEEN GRANTED IN THIS LEAD-PAINT EXPOSURE CASE; THE PLAINTIFF WAS EXPOSED TO LEAD IN AN APARTMENT OWNED BY THE NEW YORK CITY HOUSING AUTHORITY (NYCHA), AN ENTITY SEPARATE FROM THE CITY; THEREFORE THE UNDERLYING CLAIM WAS PATENTLY MERITLESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for leave to file a late notice of claim in this lead-paint exposure case should not have been granted with respect to the defendant City of New York. Plaintiff alleged exposure to lead in an apartment owned by the New York City Housing Authority (NYCHA) which is a entity separate from the city:

” Ordinarily, the courts will not delve into the merits of an action on an application for leave to serve and file a late notice of claim’ … . However, permission to file a late notice of claim is properly denied where the underlying claim is patently meritless’ …”.

Here, the Supreme Court should have denied the petition on the ground that the claim, insofar as asserted against the City, is patently meritless. “Liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property” … . It is undisputed that the apartment building in which the infant petitioner resided at the time of his injury was owned and operated by NYCHA, an entity which is separate from the City … . Furthermore, there is no basis for finding that the City owed the infant petitioner a duty based upon a special relationship between them … . Matter of K.G. v City of New York, 2020 NY Slip Op 04943, Second Dept 9-16-20

September 16, 2020/by Bruce Freeman

Evidence, Negligence, Toxic Torts

ALTHOUGH THE DAMAGES WERE DEEMED EXCESSIVE, PLAINTIFFS’ MULTI-MILLION DOLLAR VERDICT IN THE ASBESTOS MESOTHELIOMA ACTION WAS SUPPORTED BY THE EXPERT EVIDENCE OF CAUSATION (FIRST DEPT).

The First Department, although finding some of the damage amounts excessive, determined, over a dissent, the plaintiffs’ multi-million-dollar verdict in this asbestos exposure case was supported by the evidence. The case hinged on expert evidence that the extent of the exposure was sufficient to cause the resulting illness. The dissent argued the expert evidence did not meet the criteria imposed by the Court of Appeals:

In this asbestos case, Marlena Robaey [(]plaintiff), who died after the trial of this action, testified that, working with her husband and co-plaintiff, she had been regularly exposed to visible dust from scraping and grinding engine gaskets over a period of years, from cleaning the family garage after each gasket change, and from taking her and her husband’s dusty clothes into their laundry room to clean. [Defendant] Federal-Mogul’s corporate representatives, as well as the various experts called by defendants at trial, testified that the gaskets contained anywhere from 50% to 85% asbestos, and plaintiffs’ experts testified that dust from these products, if visible, necessarily exceeded current permissible levels and contained sufficient levels of asbestos to cause plaintiff’s peritoneal mesothelioma. * * *

… [T]he experts did not merely testify as to only an increased risk. Dr. Schwartz testified that the visible dust from the gaskets at issue, which were conceded by defendants’ expert to contain between 50% and 85% asbestos, 80% being “standard,” necessarily contained several thousand times the “safe” amount of asbestos, and thus was causative of plaintiff’s disease … .

From the dissent:

It should be borne in mind that the decedent’s relevant alleged exposure to asbestos from Fel-Pro products was restricted to helping her husband remove gaskets from his cars “once or twice . . . in a month” over a period of 12 year. It should also be remembered that only about half of the gaskets involved were [defendant’s] products, that not all of the [defendant’s] gaskets contained asbestos, and that any asbestos that the gaskets did contain was of the less hazardous chrysotile variety. Matter of New York City Asbestos Litig. v Air & Liquid Sys. Corp., 2020 NY Slip Op 04437, First Dept 8-5-20

August 6, 2020/by Bruce Freeman

Civil Procedure, Environmental Law, Municipal Law, Negligence, Toxic Torts

MOTIONS FOR LEAVE TO FILE LATE NOTICES OF CLAIM IN THIS “POLLUTION ESCAPING FROM A LANDFILL” CASE SHOULD HAVE BEEN GRANTED; THE STATUTE OF LIMITATIONS HAD BEEN TOLLED BY THE FILING OF A FEDERAL CLASS ACTION SUIT; ALTHOUGH THERE WAS NO ADEQUATE EXCUSE, THE RESPONDENT WAS AWARE OF THE CLAIMS AND COULD NOT DEMONSTRATE PREJUDICE FROM THE DELAY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the motions for leave to file late notices of claim in these actions stemming from pollution escaping from a landfill should have been granted. Although leave to file a late notice of claim can not be granted after the statute of limitations has run, here the statute of limitations was tolled by the filing of a federal class action suit:

Although more than one year and ninety days had elapsed between the November 2016 accrual date alleged in claimants’ proposed notices of claim and their application for leave to serve late notices of claim, we agree with claimants that the filing of the federal class action in March 2017, in which claimants are putative class members, tolled the statute of limitations … . …

… [T]he court abused its discretion in denying their application insofar as it sought leave to serve late notices of claim on respondent … . “In determining whether to grant such [relief], the court must consider, inter alia, whether the claimant[s have] shown a reasonable excuse for the delay, whether the [respondent] had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the [respondent]” … . Although claimants failed to establish a reasonable excuse for the delay, “[t]he failure to offer an excuse for the delay is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondent]” … .

… [B]ecause respondent knew that its Site was upgraded to a Class 2 site in 2015 and because similarly situated individuals served timely notices of claim on respondent alleging “substantively identical” exposure to the Site’s pollutants and resulting damages … , we conclude that claimants established that respondent received the requisite actual timely knowledge of the claims claimants now assert. We further conclude that claimants met their initial burden of establishing that respondent would not be substantially prejudiced by the delay inasmuch as respondent has been investigating similar claims since early 2017 … and that, in opposition, respondent failed to make a “particularized showing” of substantial prejudice caused by the late notice … . Matter of Bingham v Town of Wheatfield, 2020 NY Slip Op 04241, Fourth Dept 7-24-20

July 24, 2020/by Bruce Freeman

Landlord-Tenant, Municipal Law, Negligence, Toxic Torts

PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT-LANDLORD VIOLATED NYC LOCAL LAW NO. 1 BY FAILING TO TAKE REASONABLE MEASURES TO ADDRESS THE HAZARDOUS LEAD-PAINT CONDITION IN PLAINTIFFS’ APARTMENT; HOWEVER DEFENDANTS RAISED A QUESTION OF FACT WHETHER DEFENDANTS’ NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE CHILD’S INJURIES (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Moulton, determined plaintiffs demonstrated defendants violated Local Law No. 1 of the City of New York in failing to take reasonable measures to address the hazardous lead-based paint condition in plaintiffs’ apartment. However defendants’ medical expert raised a question of fact whether defendants’ negligence was the proximate cause of the plaintiff’s child’ (S.T.’s) injuries:

Under Local Law 1 defendants’ liability is not predicated on their observations of peeling paint or whether they are informed of it. Defendants’ liability does not depend on the mother demonstrating that she credibly complained about each and every instance or location of peeling paint. Even assuming that the mother never complained about the paint condition, defendants are charged with notice of the hazardous lead-based paint condition under Local Law 1 from the time that defendants were aware that S.T. moved into apartment. Moreover, Local Law 1 imposes on landlords “a specific duty to ameliorate hazardous levels of lead-based paint” … . Defendants cannot avoid liability by attempting to shift their statutory obligation to the mother by questioning her memory or her credibility, or for failing to inform them when the paint began to peel. Shifting the burden to the mother is inconsistent with the purpose of Local Law 1 which “is unquestionably intended to protect a definite class of persons [plaintiffs] from a particular hazard they are incapable of avoiding themselves” … . S.T. v 1727-29 LLC, 2020 NY Slip Op 03630, First Deptp 6-25-20

June 25, 2020/by Bruce Freeman

Civil Procedure, Evidence, Negligence, Products Liability, Toxic Torts

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ASBESTOS-INJURY CASE SHOULD NOT HAVE BEEN GRANTED, PROPER BURDEN OF PROOF EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this asbestos -injury case should not have been granted and, alternatively, even if the motion were properly granted, leave to renew should have been granted based on additional evidence:

In connection with a motion for summary judgment in an action based on exposure to asbestos, defendant has the initial burden of showing “unequivocally” that its product could not have contributed to the causation of decedent’s asbestos-related injury … .

Defendant Burnham failed to sustain its initial burden of demonstrating that its products could not have contributed to decedent’s mesothelioma. Decedent’s testimony identified defendant as the manufacturer of greenhouses in which he worked and cited three possible sources of asbestos: transite benches in the greenhouses, window glazing and the greenhouse boiler. Burnham provided no evidence demonstrating that its products could not have been the source of the asbestos that caused decedent’s illness. It only pointed to gaps in plaintiffs’ proof, which was insufficient to meet its burden … . Even if the burden had shifted, plaintiffs’ evidence in opposition raised an issue of fact as to whether Burnham had sold, distributed, and recommended asbestos-containing products such as those used in plaintiffs’ family’s gardening business. While hearsay, that evidence could be considered by the court since it was not the sole basis of the opposition … .

Alternatively, even if the summary judgment motion had been properly granted, the court should have granted leave to renew in the interests of fairness and justice since plaintiffs presented an affidavit of decedent’s estranged brother, which supplied crucial evidence linking decedent’s illness to Burnham’s products. Fischer v American Biltrite, Inc., 2020 NY Slip Op 03277, First Dept 6-11-20

June 11, 2020/by Bruce Freeman