On August, 2, 2017, Nassau County Supreme Court Justice Julianne Capetola granted various defendants’ motion to renew and re-argue the court’s prior denial of the defendants’ combined Frye/summary judgment motions as to the issue of causation. Upon renewal, the court granted summary judgment to the defendants.
By way of background, plaintiffs Giulio Novello and Rosaria Novello brought suit in the Nassau County Supreme Court seeking damages for personal injuries against various automotive-related defendants. The plaintiffs contended that Novello’s lung cancer diagnosis was causally related to his occupational exposure to asbestos from brake work as an automotive technician. The plaintiffs sought to support the causal theory with expert reports from Drs. James Strauchen and Mark Ginsberg.
The defendants filed a Frye motion seeking to preclude the plaintiffs‘ expert witness causation opinions and, upon preclusion, for summary judgment. In their underlying motion, the defendants cited to, among other cases, Parker v. Motor Oil Corporation, 7 N.Y.3d 434 (2006). In Parker, the New York Court of Appeals determined that, in toxic tort cases, an expert opinion as to the element of causation must set forth (1) a plaintiff’s exposure to a toxin, (2) that the toxin is capable of causing the particular injuries suffered and (3) plaintiff was exposed to sufficient levels of the toxin to cause such injuries. In Novello, the defendants argued that, under Parker and other similar New York case-law, the plaintiffs’ experts’ opinions were insufficient to satisfy this standard.
The court denied the motion, and determined that the paramount consideration is the fact that the plaintiffs’ experts’ opinions have the “potential to establish causation,” which is a question of fact for the jury.
Notably, on the same day that Justice Capetola issued the decision, the New York Appellate Division, First Department, issued a decision in Matter of New York City Asbestos Litig., 148 A.D.3d 223 (1st Dep’t 2017) (Juni Decision). In Juni, the Appellate Division upheld the trial court’s decision to vacate a verdict wherein plaintiff’s experts failed to satisfy the standards of Parker. Among other issues, the experts in Juni failed to identify some quantification or means of assessing the amount, duration, and frequency of exposure in determining whether exposure to certain friction products was sufficient to be a contributing cause of the disease. Id.
The defendants in Novello filed a motion to re-argue and renew their prior motions. Argument was heard on June 1, 2017. Upon re-argument, citing the Juni Decision, the court granted the motion to reargue and renew, and upon further reconsideration, Justice Capetola determined the plaintiffs’ experts failed to satisfy these causation standards. Accordingly, summary judgment was granted in favor of the defendants.