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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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WHETHER PLAINTIFF INHALED ENOUGH ASBESTOS TO CAUSE HIS CANCER WAS THE SUBJECT OF COMPETING SIMULATION STUDIES; PLAINTIFF’S EXPERT EVIDENCE WAS NOT SUFFICIENT TO DEFEAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant ABI’s motion for summary judgment in this asbestos-exposure case should have been granted. Plaintiff sold vinyl floor tiles made by ABI. Plaintiff alleged when he cut, manipulated and broke the tiles in demonstrations for customers, he inhaled asbestos fibers which were embedded in the vinyl tiles. The Fist Department found the expert evidence did not demonstrate plaintiff was exposed to sufficient levels of asbestos to cause lung cancer:

ABI had the burden to tender sufficient evidence to demonstrate the absence of any material issues of fact as to causation … . Once this burden was met, it would fall to plaintiff to produce evidentiary proof, in admissible form, establishing that there were disputed material issues of fact … . * * *

The dispute based upon the competing simulation studies about whether the decedent was exposed to asbestos in an amount that exceeded ambient levels typically found in non-occupational settings is not enough to avoid summary judgment. … [S]imply showing that exposures to a toxin were “‘excessive'” or “‘far more'” a certain threshold (ambient) is not enough … . … [P]laintiff had the “‘difficult, if not impossible,'” task of establishing that his decedent had a sufficient exposure to asbestos to have caused his lung cancer … . [Plaintiff’s expert] does not provide any reliable correlation between the presence of asbestos fiber concentrations found in the studies and how much in haled asbestos would have caused lung cancer generally and the decedent’s lung cancer in particular. Dyer v Amchem Prods. Inc., 2022 NY Slip Op 04609, First Dept 7-19-22

Practice Point: This decision includes a useful discussion of the proof requirements in an asbestos-exposure case. The decision characterized the plaintiff’s task of demonstrating sufficient exposure to cause cancer as “difficult, if not impossible.”

 

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PLAINTIFF, A TEXAS RESIDENT WHO WAS A FLIGHT ATTENDANT FOR 30 YEARS WITH MONTHLY STAY-OVERS IN NEW YORK, DEMONSTRATED NEW YORK HAD LONG-ARM JURISDICTION OVER THE NEW JERSEY COMPANY WHICH MANUFACTURED AND DISTRIBUTED TALCUM POWDER PLAINTIFF USED; THE TALCUM POWDER ALLEGEDLY CAUSED PLAINTIFF’S MESOTHELIOMA (FIRST DEPT).

The First Department determined New York had specific long-arm jurisdiction of defendant Shulton, the manufacturer and distributor of talcum powder alleged to have cause plaintiff’s peritoneal mesothelioma. Plaintiff (English) was a flight attendant for 30 years who used the talcum powder when she stayed in New York. Shulton has its principal place of business in New Jersey but has an office in New York and markets the product in New York:

English, a Texas resident, was employed as a flight attendant for 33 years, from 1966 to 1999. During a substantial part of that time, she used Desert Flower on a daily basis after showering. From 1966 to 1984, English was regularly assigned to flights into New York and flew into this state two to four times a month. She usually remained in New York on two- or three-day layovers. When English travelled, she packed Desert Flower in her luggage, so she would have it available for use when she showered. There is no claim that the Desert Flower English used in New York was purchased in New York.

Shulton is incorporated in New Jersey, where it had its principal place of business during the time that English claims to have used Desert Flower. Shulton never manufactured Desert Flower in New York, and in the mid-1970s the manufacture of its talc products shifted from Tennessee to New Jersey. Desert Flower was marketed nationally, including in New York. During the relevant period of time, Shulton maintained a New York office from which it conducted its marketing activities for its Cosmetics and Toiletries Division. The New York office was also headquarters for its International Division. * * * Shulton’s maintenance of its own New York office satisfies the first prong under CPLR 302(a)(1). * * * Desert Flower was marketed and sold nationally, and English used Desert Flower when she travelled to and while she stayed in New York. Shulton’s activities and contacts with New York and the allegedly hazardous talcum powder used by English are sufficient to support an assertion of specific jurisdiction over Shulton…. . English v Avon Prods., Inc., 2022 NY Slip Op 03571, First Dept 6-2-22

Practice Point: Even though plaintiff was a Texas resident and the company she was suing was based in New Jersey, she was able to sue using New York courts. Plaintiff was a flight attendant for 30 years with monthly stay-overs in New York. Defendant had an office in New York and marketed the talcum powder which allegedly cause plaintiff’s mesothelioma nationwide.

 

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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.

 

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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

 

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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

 

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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

 

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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

 

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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

 

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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

 

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