The plaintiff alleges that the lung cancer was caused by his exposure to asbestos over the course of his career at various locations in New York between 1975 and 1983. Defendant Mannington Mills, Inc. filed a motion for summary judgment on the grounds that the plaintiff had not established general or specific causation of his lung cancer related to the defendant’s products (sheet flooring).
A defendant seeking summary judgment in a products liability case involving asbestos must make a prima facie case that its product could not have contributed to the causation of the plaintiff’s injury (Reid v Georgia-Pacific Corp., 212 AD2d 462 [1st Dept 1995]). An opinion on causation in a toxic tort should set forth: (1) a plaintiff’s exposure to a toxin; (2) that the toxin is capable of causing the particular illness, or “general causation”; and (3) that plaintiff was exposed to sufficient levels of the toxin to cause the illness, or “specific causation” (Parker v Mobil Oil Corp., 7 NY3d 434 [2006]). “It is not enough for a plaintiff in a toxic tort action for damages to show that a certain agent sometimes causes the kind of harm that he or she is complaining of; at a minimum, there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of that agent that are known to cause the kind of harm that the plaintiff claims to have suffered” (internal citations omitted). Specific causation may not be established where a plaintiff’s exposure to a toxin released from a defendant’s product was below the practical threshold for the dose necessary to cause the plaintiff’s disease (internal citations omitted).
The defendant provided expert testimony regarding the plaintiff’s highest possible lifetime exposure to the defendant’s product and that it was only 1/200th of the lifetime dose required to establish a known risk of developing asbestos-related lung cancer.
In response, the plaintiff argued that he was exposed to sufficient levels of asbestos, which is capable of causing lung cancer. The plaintiff produced an expert report establishing that cumulative exposure to asbestos from defendant’s product was a substantial contributing factor in the development of the plaintiff’s lung cancer and death.
Based on the conflicting expert reports, the court determined that there was a “credibility issue that cannot be resolved without jury consideration.” The court found that plaintiff had produced evidence of causation related to this defendant and therefore denied the defendant’s motion for summary judgment.