Insufficient Evidence to Show Chrysotile Flooring Products Caused Plaintiff’s Peritoneal Mesothelioma Supreme Court, State of New York, Nassau County, April 18, 2018
NEW YORK — The court granted summary judgment for two flooring manufacturers in this peritoneal bystander mesothelioma matter. Plaintiff Victoria Pistone alleged that she was exposed to asbestos from vinyl floor covering manufactured by Mannington Mills, and tile manufactured by American Biltrite, while she accompanied her father to work, and in their home from his clothing.
The court cited prior New York law in noting that a plaintiff must use a causation expert to establish that the plaintiff was exposed to sufficient levels of asbestos from the products in question to have caused her disease. The court first determined that the defendants met their burden of demonstrating that their respective products could not have contributed to the causation of the plaintiff’s peritoneal mesothelioma through the affidavits of certified industrial hygienists Mark F. Durham and John W. Spencer, and pulmonologists Allan Feingold and James D. Crapo. Both industrial hygienists opined that the low levels of airborne asbestos that could possibly have emitted from the defendants’ products would have had a negligible contribution to a lifetime exposure of asbestos. Both medical experts opined that chrysotile asbestos was not a cause of peritoneal mesothelioma.
Having accepted that the defendants’ products were not the general or specific cause of the plaintiff’s peritoneal mesothelioma through defendants’ experts’ affidavits, the burden shifted to the plaintiff to establish the existence of material issues of fact. In an attempt to meet this burden, the plaintiff used inadmissible reports from certified industrial hygienist Steven Paskal and Dr. Josephine Moline, and an affirmation by pathologist David Y. Zhang. The court determined that neither Paskal nor Moline presented evidence establishing that the extent and quantity of dust to which the plaintiff was exposed from the defendants’ products was sufficient to cause her disease, or that this dust contained enough asbestos to cause the peritoneal mesothelioma. While Dr. Zhang opined that chrysotile asbestos could be a cause of peritoneal mesothelioma, the court determined that he did not provide adequate scientific support for this conclusion in the reports that he relied upon. In granting summary judgment and dismissing all claims against the defendants, the court stated, “(i)n conclusion, there is no evidence that chrysotile asbestos causes peritoneal mesothelioma nor is there evidence that the plaintiff was exposed to amounts of chrysotile asbestos from Mannington Mills or American Biltrite’s products sufficient to have caused her disease.”