Supreme Court of New York, Nassau County, April 12, 2021
Plaintiff William Stodoloski worked as an auto mechanic from 1965 to 1969 and from 1971 to 1978. The plaintiff testified that as a mechanic he performed all aspects of car repair including removing and replacing the defendant’s brakes and clutches. He filed an asbestos lawsuit on April 5, 2019 alleging his work as an auto mechanic caused him to suffer from lung cancer. The case was certified ready for trial on January 23, 2020 and a note of issue was filed on February 19, 2020. Shortly thereafter, the defendant filed a motion for summary judgment based on the plaintiff’s failure to prove that the defendant’s products caused the plaintiff’s asbestos-related injury. In the alternative, the defendant sought a Frye hearing to determine whether the plaintiff’s expert’s opinion is generally accepted in the scientific community.
“It is well settled that in a motion for summary judgment the moving party bears the burden of making a prima facie showing that he or she is entitled to summary judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of a material issue of fact (see Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957); Friends of Animals, Inc. v. Associates Fur Mfrs., 46 NY2d 1065 (1979); Zuckerman v. City of New York, 49 NY2d 557 (1980); Alvarez V. Prospect Hospital, 68 NY2d 320 (1986).”
“The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers Winegard v. New York University Medical Center, 64 NY2d 851 (1985). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require atrial of the action. Zuckerman v. City of New York, 49 NY2d 5557 (1980), supra.”
“In a toxic tort matter, to establish causation, a plaintiff must establish that the toxin is capable of causing the illness from which the plaintiff suffers (general causation), and that the plaintiff was exposed to enough of the toxin to cause the illness (specific causation).” Parker v. Mobil Oil Corp. 7 NY3d 434 (2006).
In support of the defendant’s motion, the expert report of Jennifer S. Pierce, MS, Ph.D., was used to show that the plaintiff was exposed to the less dangerous chrysotile composition of asbestos and that any exposure from the defendant’s products would have amounted to less danger to the plaintiff due to any exposure from his work with the defendant’s products being below the cumulative exposure levels that would have been dangerous to him.
In denying the defendant’s motion, the court relied on the fact that the plaintiff testified that he was exposed to “clouds” of airborne particles caused by working with the defendant’s products. The court found that, despite the defendant’s expert opinion, the plaintiff’s testimony raised an issue of fact.
As for a Frye hearing regarding the plaintiff’s expert, Dr. David. Y. Zhang, M.D., the court was not persuaded and found that the expert challenge was better addressed at trial regarding foundation, and during cross examination.