New York’s Highest Court Set to Hear First Asbestos Causation Challenge New York Court of Appeals, October 16, 2018

NEW YORK — The New York Court of Appeals has set oral argument for October 16th, 2018 in Matter of NYC Asbestos Litig. (Juni v A.O. Smith). Since 2006, the Court of Appeals has weighed in three times[i] on the applicable causation standards in toxic tort cases, but Juni is the first asbestos related appeal to reach the high court. In this article, we provide a primer on the case and share a few thoughts about what to look for when the parties present their respective positions to the panel. The oral argument will be viewable live via webcast here, and the archived video and transcript of the proceedings should be available here a few days later.

Mr. and Mrs. Juni filed a New York City Asbestos Litigation action in 2012 asserting that Mr. Juni’s pleural mesothelioma was attributable to his exposures to various manufacturers’ products. Mr. Juni was first exposed to asbestos at several Orange & Rockland powerhouses while working during college as a driver in 1961, 1962, and 1963. While he was unable to provide any product identification at those work sites, he did describe significant thermal insulation exposures from a powerhouse that was in the process of being decommissioned. From 1964 to 1966, Mr. Juni worked as a third- and then second-class automotive and heavy equipment mechanic for Orange & Rockland. During this time, Mr. Juni did not personally perform any brake or clutch jobs, and was unable to quantify the frequency of brake work he observed being performed by others. In 1966, Mr. Juni transferred to the Spring Valley garage at Orange & Rockland, where he worked until his retirement in 2009. However, Mr. Juni did not allege any exposure after the fall of 1988, when Orange and Rockland issued respirators to its mechanics. Shortly after arriving at the Spring Valley garage, Mr. Juni was promoted to first-class mechanic, a role in which he spent only twenty-five percent of his time performing vehicle repair work. Mr. Juni was promoted to the title of working foreman in 1970, a position which was limited to assisting other mechanics.

The Juni case was assigned a trial date in the spring of 2014 before New York County Supreme Court Justice Barbara Jaffe, with only a handful of defendants remaining. However, shortly after opening statements, Mrs. Juni, then acting both as administratrix and in her personal capacity as Mr. Juni’s wife, settled with all of the remaining defendants except for Ford Motor Company. At trial, Mrs. Juni called Drs. Stephen Markowitz and Jaqueline Moline as her causation experts.

In support of his general causation opinions, Dr. Markowitz relied on short-term industrial hygiene studies, which did not demonstrate time weighted vehicle mechanic exposures above existing OSHA permissible exposure levels. He further relied on epidemiology studies in the factory manufacturing setting and unspecified case reports. Upon cross-examination, Dr. Markowitz conceded that the available epidemiological studies addressing asbestos exposure in vehicle mechanics “do not show much evidence in support of a relationship between mesothelioma and exposure to friction products.”

Dr. Moline was called as plaintiff’s specific causation expert, where she conceded that she did not know the frequency with which Mr. Juni was exposed to asbestos from a Ford product. Indeed, while Orange and Rockland’s vehicle fleet included a considerable number of Ford vehicles, crucially, the record at trial was silent as to the frequency with which Mr. Juni encountered asbestos containing brakes, clutches, and gaskets manufactured by Ford. Instead, Dr. Moline averred, without support in the record, that exposures from such products occurred “regularly.”[ii]

Following a 20 day trail, the jury returned a plaintiff’s verdict, finding Ford 49% liable and attributing the remainder of the liability to Orange and Rockland, which was not named in the suit. Thereafter, Ford moved for judgement as a matter of law or a new trial, and in the alternative for a remittitur of the jury’s award of $8 Million for past pain and suffering and $3 Million for Mrs. Juni’s loss of consortium. On April 13, 2015, Justice Jaffe handed down a forty page decision setting aside the verdict and awarding Ford judgement as a matter of law on the ground that the opinions of Drs. Markowitz and Moline were legally insufficient.[iii]

With respect to Dr. Markowitz, Justice Jaffe framed the issue of general causation as not being limited to whether chrysotile asbestos causes mesothelioma, but rather whether exposure to chrysotile asbestos as contained in friction products can cause mesothelioma. Justice Jaffe had reasoned that such an analysis was appropriate in light of various concessions by plaintiff’s experts in relation to the manufacturing process and the thermal conversion of brake ware debris, which is rendered inert from the intense heat generated by the braking process. Justice Jaffe further rejected Dr. Markowitz’s reliance on epidemiological studies related to factory manufacturing exposures as inapposite, as he conceded that the exposures in such occupational environments were considerably higher than those generally experienced by garage mechanics. Lastly, Justice Jaffe observed that even though profession-specific epidemiological evidence is not strictly required to establish general causation, Dr. Markowitz’s concession that 21 of 22 epidemiological studies conducted of those who work with friction products yielded no evidence of an increased risk of developing an mesothelioma could not be ignored.

Turning to Dr. Moline’s specific causation opinions, Justice Jaffe held that Dr. Moline’s concessions with respect to her lack of knowledge concerning the frequency of Mr. Juni’s exposures, her lack of expertise with respect to the composition of brake ware debris, and her failure to “even minimally quantify” Mr. Juni’s exposures with respect to amount, frequency, or duration were disqualifying. Justice Jaffe further held that Dr. Moline’s failure to compare Mr. Juni’s exposures to those in the reported studies meant that she had failed to offer a “scientific expression” of Mr. Juni’s exposure as required under New York law.

Justice Jaffe, also explicitly rejected two legal theories propounded by plaintiff’s counsel. First, Justice Jaffe rejected the notion that the mere observation of visible dust is a legally sufficient basis to establish specific causation, as neither Dr. Moline nor Dr. Markowitz knew whether the dust at issue contained enough asbestos to cause mesothelioma. Second, Justice Jaffe dismissed the plaintiff’s reliance on the cumulative theory of exposure as irreconcilable with the well-recognized scientific requirement, acknowledged by Dr. Moline, that the amount, duration, and frequency of exposure be considered in assessing the sufficiency of an exposure in increasing the risk of developing a disease.

Following the trial level decision, plaintiff appealed to the Appellate Division First Department, which issued a decision on February 28th, 2017.[iv] The majority opinion by Justice Saxe reaffirmed that 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 based on a plaintiff’s work history, or comparing the plaintiff’s exposure with that of subjects of reported studies. He further rejected both the cumulative theory of causation and the notion that the mere presence of visible dust should be considered sufficient to prove specific causation.

While Justice Kahn joined the majority opinion, he also wrote separately to highlight the public policy roll, which is exclusive to the Court of Appeals. Justice Feinman, who has since been elevated to the Court of Appeals, issued a vigorous dissent, in which he argued that the majority misapplied the standard of review for legal sufficiency, and misapplied the law concerning general and specific causation in asbestos cases. Justice Feinman, asserted that visible dust “alone” is sufficient to establish that work with the friction products caused Mr. Juni’s mesothelioma.[v] The dissent further argued that if the majority view was implemented “no asbestos litigant will be able to prevail.”[vi]

The critical viewer of the coming oral argument should consider the following questions:

  • Did the trial court’s foundational analysis view the evidence in the light most favorable to the plaintiffs?
  • Should asbestos be treated differently than other toxic substances on public policy grounds?
  • Is the “cumulative theory” of exposure consistent with plaintiff’s burden to establish substantial factor causation with respect to each particular defendant in a multi-defendant case?
  • Do the terms “visible dust” or “regular exposure” constitute a “scientific expressions” of exposure?
  • Will the Court of Appeals reconsider adopting the Daubert standard?

It is a safe bet that no one can predict the outcome of this third, and likely final round of post-trial brinksmanship, however the make-up of the panel will certainly be the subject of much debate. The panel will consist of the honorable Justices Wilson, Fahey, Rivera, DiFiore, Stein, Garcia, and Feinman. Justice Feinman has twice not taken part in decisions to allow amicus filings before the Court of Appeals in the Juni matter and will surely recuse himself in light of his intermediate appellate level dissent. Notably, Justices Rivera, Stein, and Fahey concurred in the in utero gasoline vapor causation decision in Sean R[vii], and Justice Rivera concurred with the Cornell[viii] indoor mold causation decision. The remaining justices on the panel have not had occasion to take part in any major toxic tort causation decisions.

Asbestos Case Tracker will continue to update this space regarding all relevant developments. In the meantime, feel free to download the zipfile with the complete set of briefs, or to provide your comments below and join the conversation.

 

[i] Sean R. v. BMW of N. Am., LLC, 26 N.Y.3d 801 (2016); Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762 (2014); Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006)

[ii] Under well-established New York law subjective descriptions of exposure are insufficient to establish the frequency of exposure. See e.g. Parker v. Mobil Oil Corp., 99 A.D.3d at 447 (rejecting the terms “frequent,” “excessive,” and “extensive” as unscientific expressions of exposure); Cleghorne v. City of New York, 99 A.D.3d 443, 447 (1st Dep’t 2012) (“Plaintiffs’ expert, based only on this affidavit, characterized Cleghorne’s exposure as “high-level.” This was an insufficient basis for his theory, given that “replete” is a meaningless and vague quantifying adjective.”)

[iii] In re New York City Asbestos Litig. (Juni), 48 Misc. 3d 460, 11 N.Y.S.3d 416 (N.Y. Sup. Ct. 2015)

[iv] In re New York City Asbestos Litig. (Juni), 148 A.D.3d 233 (N.Y. App. Div. 2017)

[v] In re New York City Asbestos Litig. (Juni), 148 A.D.3d 233, 248 (N.Y. App. Div. 2017)

[vi] Subsequent appellate decisions by the First Department have however distinguished the Juni decision where the plaintiff’s experts have performed a dose estimate and compared the result to levels published in the epidemiological literature. E.g. New York City Asbestos Litig. (Miller), 2016 WL 1666776, at *5 (Sup. Ct. Apr. 25, 2016) (“[Plaintiff’s Causation Expert] also testified that the dose calculation provided by plaintiff’s [industrial hygine] expert of .024 fibers/cc for plaintiff’s lifetime was a sufficient exposure to cause mesothelioma based on recent publications which show mesothelioma from this type of exposure”) affirmed by In re New York City Asbestos Litig. (Miller), 154 A.D.3d 441, 441 (N.Y. App. Div. 2017), leave to appeal denied sub nom. Miller v. BMW of N. AM., LLC, 30 N.Y.3d 909 (2018)

[vii] Sean R. ex rel. Debra R. v. BMW of N. Am., LLC, 26 N.Y.3d 801 (2016)

[viii] Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762 (2014)

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