NYCAL Court Denies Motion in Limine to Preclude Plaintiff’s Causation Experts Supreme Court of New York, New York County, April 14. 2017

The court issued further rulings in a case previously reported in Asbestos Case Tracker on April 12, 2017. This case involved plaintiff Frederick Evans’ alleged exposure to asbestos-containing dust from his work as an HVAC mechanic from 1955-59. Although the defendants submitted a joint omnibus motion in limine, the only defendant remaining at trial was Burnham LLC. Here, the motion in limine to exclude the causation opinions of the plaintiffs’ experts Dr. Carl Brodkin and Dr. John Maddox was denied.

Burnham argued the plaintiffs’ causation experts would offer a scientifically unsupportable causation opinion based upon the “each and every exposure” theory. Burnham cited to case law finding that “[i]t is well-established that 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 the plaintiff was exposed to sufficient levels of the toxin to cause illness (specific causation).” Burnham asserted that even if the plaintiffs’ experts could establish general causation (that asbestos can cause mesothelioma), they cannot establish specific causation – that Mr. Evans was exposed to enough asbestos from his work around Burnham products to have substantially contributed to causing his disease.

The plaintiffs argued that in forming his opinion, Dr. Brodkin performed a dose analysis and relied upon various studies, Mr. Evans’ exposure history, and other items. Regarding Dr. Maddox, the plaintiff pointed the court to federal litigation wherein various courts accepted his testimony as satisfying Daubert. The plaintiffs further cited to other case law holding that precise quantification was not necessary.

In denying the motion, the court stated that Burnham failed to demonstrate that Dr. Brodkin’s opinion was insufficient; Dr. Brodkin quantified the exposure itself, the percentage of time spent with the products, estimated the dose, and identified studies relied upon in doing so. Presumably both Dr. Brodkin and Dr. Maddox would expand on their reports. Precedent did not compel a different result.

While other experts in prior cases were precluded from testifying, the court noted that in those cases, the product at issue was still on the market and capable of being tested. Thus, “it is ‘inappropriate to set an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court.’ The defendant’s emphasis on quantification, and their complaints that the plaintiffs’ experts do not quantify asbestos release by sampling, collecting, and evaluating the air ignores the reality that the asbestos-containing product at issue … is almost always no longer on the market or otherwise available, and therefore, is not capable of being tested.” To read precedent in the way Burnham suggested would forestall recovery in nearly all asbestos cases and would be the death knell to asbestos exposure litigation.

Read the full decision here.

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