New York Appellate Court Determines Causation Evidence Was Insufficient to Support Verdict in Mesothelioma Matter Supreme Court of New York, Appellate Division, First Department, February 27, 2017
In a significant decision concerning the causation standards in asbestos matters, on February 28, 2017, the Appellate Division, First Department in a 3-1 decision, affirmed the trial court’s decision to vacate an $11 million jury verdict against an automotive manufacturer.
By way of background, in Juni v. Ford Motor Company, Index Number 190315/12, plaintiff alleged that his mesothelioma diagnosis was caused by exposure to asbestos while working with various automotive parts (i.e., brakes, clutches and gaskets). Those products were alleged to contain chrysotile asbestos. After the jury returned a verdict for the plaintiff, the trial court granted a motion to set aside the verdict on the grounds that the plaintiff’s causation experts failed to meet the causation standards in toxic tort cases as set forth in two recent decisions from the New York Court of Appeals.
The appeal focused on whether the causation standards set forth in Parker v. Mobil Corp., 7 N..Y.3d 434 (2006) and Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762 (2014) applied to asbestos matters. The court determined that the standards of Parker and Cornell applied to asbestos matters, stating: “There is no valid distinction to be made between the difficulty of establishing exposure to, say, benzene in gasoline and exposure to asbestos. In each type of matter, a foundation must be made to support an expert’s conclusion regarding causation.” Id.
The court further stated that “the fact that asbestos, or chrysotile, has been linked to mesothelioma, is not enough for a determination of liability against a particular defendant; a causation expert must still establish that the plaintiff was exposed to sufficient levels of the toxin from the defendant’s products to have caused his disease. [citation omitted]. Even if it is not possible to quantify a plaintiff’s exposure, causation from exposure to toxins in a defendant’s product must be established through some scientific method, such as mathematical modeling.” Id.
The court analyzed the plaintiff’s evidence in this regard and found that the experts’ causation opinions were “groundless and unsupported.” Id. For example, one expert, Dr. Moline, admitted that “there were no measurements of what Mr. Juni was exposed to.” The court further noted that same expert’s opinion that visible dust was sufficient to establish a causal relationship was undermined by studies that show “that more than 99% of the debris from brake wear is not comprised of asbestos fibers.” The opinions of the other expert, Dr. Markowitz, were insufficient because he acknowledged, for example, “that 21 of 22 epidemiological studies that addressed asbestos exposure to mechanics working on friction products found no increased risk of mesothelioma.” Id.
The court finally affirmed the trial court’s determination that the plaintiff’s “cumulative exposure theory” was insufficient to support a verdict. Here, the court stated that “[n]either of plaintiff’s experts stated a basis for their assertion that even a single exposure to asbestos can be treated as contributing to causing an asbestos-related disease. Moreover, reliance on the theory of cumulative exposure, at least in the manner proposed by plaintiffs, is irreconcilable with the rule requiring at least some quantification or means of assessing the amount, duration, and frequency of exposure to determine whether exposure was sufficient to be found a contributing cause of the disease.” Id.