Supreme Court of New York, New York County, June 25, 2020
The plaintiff, Carletto Lamenta (the decedent), was diagnosed with lung cancer in October of 2017 and subsequently filed this lawsuit alleging his injuries were a result of his occupational exposure to asbestos. The decedent’s deposition took place over the course of seven days, during which he testified that he was exposed to asbestos in a variety of ways, including from his work with ABI’s Amtico vinyl asbestos floor tiles from the 1970s through the mid-1980s.
ABI filed a motion for summary judgment pursuant to CPLR §3212 to dismiss the plaintiff’s complaint and all cross claims against it. ABI argued the plaintiff failed to proffer any expert opinion or other evidence establishing general or specific causation that Amtico floor tiles caused the decedent’s illness. ABI claimed that summary judgment is warranted under Parker v Mobil Oil Corp., 7 NY3d 434, 824 NYS2d 584, 857 NE2d 1114 (2006) and Cornell v 360 West 51st Street Realty, LLC, 22 NY3d 762, 986 NYS2d 389, 9 NE3d 762 (2014) because the plaintiff failed to establish general and specific causation.
To be successful on a motion for summary judgment, a defendant must make a prima facie showing that its product did not contribute to the causation of plaintiff’s illness (Comeau v. W.R. Grace & Co.- Conn. (Matter of New York City Asbestos Litigation), 216 A.D. 2d 79, 628 N.Y.S. 2d 72 (1st Dept, 1995) citing to Reid v. Georgia-Pacific Corp., 212 A.D. 2d 462, 622 N.Y.S. 2d 946 (1st Dept, 1995), Di Salvo v. A.O. Smith Water Products (In re New York City Asbestos Litigation), 123 A.D. 3d 498, 1 N.Y.S. 3d 20 [1st Dept, 2014] and O’Connor v. Aerco Intl., Inc., 152 A.D. 3d 841, 57 N.Y.S. 2d 766 (3rd Dept, 2017). The court further explained, a defendant cannot obtain summary judgment simply by “pointing to gaps in plaintiffs’ proof” (Ricci v. A.O. Smith Water Products, 143 A.D. 3d 516, 38 N.Y.S. 3d 797 (1st Dept. 2016) and Koulermos v. A.O. Smith Water Products, 137 A.D. 3d 575, 27 N.Y.S. 3d 157 (1st Dept, 2016).
First, in establishing that no general causation exists, ABI argued that unlike amphibole asbestos, no causal relationship exists between encapsulated chrysotile asbestos (like the type found in Amtico floor tiles) and the development of lung cancer.ABI relied on expert reports from John W. Spencer, Marc Plisko and Dr. Stanley Geyer, M.D. that cited recognized studies and reports to establish that there is no general causal relationship between chrysotile asbestos and the decedent’s illness. Based upon ABI’s expert reports, the court found ABI met its burden on general causation.
As for specific causation, an expert opinion must set forth “that the plaintiff was exposed to sufficient levels of the toxin to cause such injuries.” Parker v. Mobil Oil Corp., 7 NY3d 434, supra at 448. The court has held this can be established in a variety of ways including providing estimates “through the use of mathematical modeling by taking a plaintiff’s work history into account to estimate the exposure to a toxin” or “comparison to the exposure levels of subjects of other studies could be helpful, provided that the expert made a specific comparison sufficient to show how the plaintiff’s exposure level related to those of the other subjects.” Id.
Here, ABI’s experts cited to studies and reports, including their own study utilizing ABI’s Amtico vinyl asbestos floor tiles that indicated the decedent’s estimated total cumulative exposure to asbestos from ABI’s Amtico vinyl asbestos floor tiles was indistinguishable from a lifetime of cumulative exposures to ambient asbestos and well below the lifetime cumulative exposure limits as stated by OSHA, the WHO and the EPA. ABI’s experts also concluded that decedent’s other asbestos exposures posed a greater risk to his development of lung cancer.
The plaintiff’s expert reports, on the other hand, offered only conclusory statements that “asbestos exposure is a potent risk factor for the development of lung cancer.” The court found the plaintiff’s expert reports speculative and insufficient to raise an issue of fact on general or specific causation and insufficient to defeat a motion for summary judgment. Therefore, the court granted ABI’s motion for summary judgment.