Court: Supreme Court of the State of New York, Nassau County
In this asbestos action, plaintiff Donna Daniell alleged asbestos exposure from working near auto mechanics, including her husband, Robert, while they used asbestos-containing products. She also alleged asbestos exposure from laundering her husband’s work clothes. She contends that she developed lung cancer from these exposures. Defendant LuK Clutch Systems LLC moved for summary judgment, arguing that Donna’s exposure to asbestos from LuK clutches would have been minimal and “similar [to] the ambient levels of asbestos in the air.” Notably, Donna has a personal smoking history of up to two packs per day for over forty years.
In New York toxic tort cases, “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). Recently, the Court of Appeals reaffirmed the Parker standard in Nemeth.
LuK submitted expert reports from an industrial hygienist (Frederick W. Boelter) and a physician (Dr. I. Allan Feingold) to meet its burden on summary judgment. Both experts opined that Donna’s smoking history was the most likely cause of her disease. In part, Feingold set forth that “lung cancer risk in increased by asbestos exposure, but only in those individuals who develop pulmonary parenchymal asbestosis or, at the least, have an asbestos fiber lung burden equivalent to asbestos. [Donna’s] chest imaging neither showed asbestos nor other evidence of heavy asbestos exposure such as pleural plaques.”
In addition, Boelter opined that “persons who contract asbestos-related diseases or asbestosis are exposed to high concentrations of asbestos of at least 25 f-yr/cc.” However, the levels of asbestos in the ambient air is 0.01 to 0.0001 f/cc and the nationwide average is 0.003 to 0.004. Boelter performed studies comparable to a description of Robert’s work. Using those studies, Boelter opined that “the amount of asbestos exposure Robert would have experienced would have been minimal, or in the range of what already existed in the air.” As such, “Donna’s exposure while being near Robert while he worked, or while laundering his clothes, would have been similar, or even lower than Robert’s exposure.” Taking these expert reports into consideration, the court found that LuK met its burden of establishing entitlement to summary judgment.
The court also found that the plaintiff did not meet her burden in opposition. The plaintiff submitted the expert reports from an industrial hygienist (Kenneth S. Garza) and a physician (Dr. Mark Ellis Ginsburg). The court first noted that Garza’s report was not case-specific, but instead is a “meditation on all types of products that contain asbestos.” Thereafter, the court set forth that Ginsburg “never offers an opinion as to how much asbestos dust Donna was exposed to.” The court also set forth that Ginsburg’s report “does not even point to LuK clutches in particular.” Therefore, the plaintiff failed to raise an issue of fact as the plaintiff’s expert reports were insufficient under the Parker/Juni/Nemeth standard. Thus, the court granted summary judgment to LuK.
Read the full decision here.