New NYCAL Coordinating Judge Grants First Causation-Based Summary Judgement Supreme Court of New York, New York County, January 29, 2019
NEW YORK — New York City Asbestos Litigation Coordinating Judge Manuel J. Mendez has granted a causation based summary Judgment motion to defendant, American Biltrite, Inc. (ABI). With respect to ABI, the plaintiff, Thomas Mantovi, alleged exposure from Amtico from vinyl asbestos floor tile that he encountered as a bystander while performing inspections as an insurance agent from 1967 through 1979. Specifically, he testified that he was exposed to asbestos by breathing in dust during insurance inspections of commercial and residential sites where Amtico asbestos containing vinyl floor tiles were being cut and laid down, with tools such as box cutters and rotary saws.
As a threshold matter, the plaintiff had argued ABI failed to meet its prima facie burden, as it did not submit an affidavit of an individual with personal knowledge. However, Justice Mendez held that a motion for summary judgment can be “decided on the merits when an attorney’s affirmation is used for the submission of documentary evidence in admissible form and annexes proof from an individual with personal knowledge.” The plaintiff further argued that ABI’s experts failed to make a prima facie showing that asbestos in its vinyl floor tiles could not have caused the decedent’s mesothelioma, but Justice Mendez rejected that contention and found that ABI had met its prima facie burden with respect to both general and specific causation.
In support of the general causation portion of its motion, ABI relied on the affidavit and reports of, John W. Spencer, CIH, CSP; Marc Plisko CIH, Dr. Stanley Geyer, M.D., and Dr. David Weill, M.D.. Mr. Spencer and Mr. Plisko’s submitted evidence of a lack of causal relationship between encapsulated chrysotile asbestos and the decedent’s mesothelioma based on a risk and exposure assessment. Justice Mendez specifically credited their reliance on OSHA and the EPA’s position on the difference between friable and non-friable asbestos containing materials, holding that “ABI’s expert reports, which rely on EPA and OSHA reports, and scientific studies to formulate a conclusion are sufficient to meet the prima facie burden for summary judgment on general causation.”
In further support of his general causation ruling, Justice Mendez relied on Dr. David Weill’s discussion of the minimal threshold level below which there is no excess risk of developing mesothelioma, noting that “Dr. Weill refers to studies of ambient exposure levels in cities in the United States of between 0.02 f/cc and 0.008 f/cc as not being associated with disease.” Dr. Weill also supported his opinions concerning the differences in fiber type potency, with charts of “Mesothelioma Deaths by Fiber Types” for the years 1983, 1987, 1996 and 2013, which showed that “chrysotile miners had only 2% deaths from mesothelioma in 1983 and 1987 with no deaths in 1996 and 2013.” Justice Mendez also credited Dr. Weil’s reliance on NIOSH animal studies showing a lack of pathological response from chrysotile exposures.
In opposition to the general causation challenge, the plaintiff relied on the report of Dr. David Y. Zhang, M.D., Ph.D. and M.P.H., a specialist in pathology and occupational therapy. In his report, Dr. Zhang provided the plaintiff’s work history, medical history, radiological findings, histological diagnosis and pathology reports. Dr. Zhang’s report concluded that “…the cumulative exposure to each company’s asbestos containing products significantly contributed to the development of his malignant mesothelioma.” However, Justice Mendez held that Dr. Zhang’s report was insufficient to raise an issue of fact as to general causation because it failed “to make any distinctions between chrysotile fibers and the other asbestos fibers.”
With respect to specific causation, ABI argued that its Amtico floor tiles did not produce breathable dust to a level sufficient to cause decedent’s mesothelioma. Justice Mendez noted that the New York Court of Appeals has enumerated several ways an expert might demonstrate specific causation, including mathematical modeling and comparison to the exposure levels of subjects of other studies. Justice Mendez found that ABI met its prima facie burden on specific causation, in part based on the report by Mr. Spencer and Mr. Plisko, which estimated the plaintiff’s cumulative exposure levels as 0.00079 f/cc-yrs. Their report further noted that such a level was “(1) is indistinguishable from most lifetime cumulative exposures to ambient asbestos, (2) well below a working lifetime at the OSHA and WHO permissible exposure limits, and (3) also well below lifetime cumulative exposure at the USEPA clearance limit following an asbestos abatement action.”
In opposition to the specific causation challenge plaintiff again relied on Dr. Zhang’s report. However, Justice Mendez held that it was insufficient to raise an issue of fact. Justice Mendez explained that “[p]laintiff’s conclusory argument that Dr. Zhang’s trial testimony will rest on an ‘overwhelming scientific consensus,’ is unavailing. Dr. Zhang’s report does not rely on comparison to the exposure levels of subjects of other studies, does not provide comparison of the encapsulated chrysotile fibers in ABI’s Amtico vinyl asbestos floor tiles to other forms of asbestos fibers, or establish that plaintiff was exposed to sufficient levels of asbestos from his second hand exposure to ABI’s product, to raise an issue of fact on specific causation.”