Supreme Court of New York, New York County, January 22, 2021
The decedent, Michael Layton, was diagnosed with lung cancer on July 16, 2017 and passed away on April 17, 2020. The plaintiff alleges the decedent’s lung cancer was caused by his prolonged and substantial exposure to asbestos over the course of his career during which he was involved in the removal and replacement of all types of flooring, including Biltrite’s “Amtico” and Mannington Mills brand floor tiles, at thousands of work sites. Defendants, American Biltrite Inc. and Mannington Mills (collectively “defendants”) filed motions for summary judgment on the grounds that the defendants made a prima facie case demonstrating lack of causation. The plaintiff opposed the motions.
The defendants allege that they did not cause or substantially contribute to the decedent’s lung cancer. Moreover, the defendants argue the plaintiff has failed to establish general or specific causation against the defendants. “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). 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.” Cornell v 360 West 51st Street Realty, LLC, 22 NY3d 762, 784 (2014) quoting Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1107 (8th Cir.1996).
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].” Parker, 7 NY3d at 443. The defendants allege that their floor tiles could not have exposed the decedent to levels of asbestos that could be a substantial contributing factor to the development of lung cancer.
In support of their motion, Biltrite submitted the expert report of John W. Spencer, CIH, CSP and Marc J. Plisko, CIH and Mannington submitted the expert report of Mark Dunham, CIH. Based on the decedent’s testimony, Mr. Spencer, Mr. Plisko and Mr. Durham determined that Decedent’s cumulative exposure from working with Amtico and Mannington floor tiles was well below OSHA and WHO permissible exposure limits.
Additionally, Biltrite also submitted expert reports from Dr. Stanley J. Geyer, a pathologist, who concluded “any work Decedent performed installing Amtico floor tiles created a negligible and insignificant exposure to chrysotile asbestos . . . that would have been insufficient to the cause of his lung cancer. Dr. Geyer noted further that Decedent showed “no evidence of asbestosis and because of [Decedent’s] history of smoking cigarettes, [Dr. Geyer concluded] that tobacco smoke, with no contribution from asbestos exposure, caused [Decedent’s] lung cancer.” Biltrite also submitted an expert report from Dr. James Crapo, a pulmonologist, who concluded that the decedent did not develop asbestosis and that in the absence of asbestosis he “conclude[d] that [Decedent’s] possible work with or exposure to floor tiles sold by American Biltrite would not have contributed to his risk for developing carcinoma of the lung and of the nasopharynx.”
Likewise, in support of their motion, Mannington submitted an expert report of epidemiologist, Dr. Dominik Alexander. Dr. Alexander stated that the decedent was never diagnosed with asbestosis and that based on the dose estimate performed by Mannington’s expert Mr. Durham, the decedent’s lifetime dose of asbestos exposure was below the OSHA permissible limits.
In opposition, the plaintiff submitted the report of Dr. Ginsburg, who concluded, “to a reasonable degree of medical certainty, that while Decedent’s smoking history was a contributing cause to his lung cancer, it is also his opinion that cumulative exposure to asbestos from Defendants’ products were a substantial contributing factor in the development of Decedent’s primary lung cancer and death.” Contrary to the defendants’ assertion that the decedent’s cumulative exposure to asbestos cannot be deemed a substantial contributing factor to his lung cancer, Dr. Ginsburg asserts that “[t]here is no safe minimal level of exposure to asbestos with respect to lung cancer.”
The court found that Dr. Ginsburg’s report established general causation, in that asbestos is capable of causing lung cancer. The court further stated the fact that the plaintiff and the defendants’ experts disagree on the underlying science raises a credibility issue that cannot be resolved without jury consideration. “Conflicting testimony raises credibility issues that cannot be resolved on papers and is a basis to deny summary judgment.” Messina v New York City Transit Authority, 84 AD3d 439 (2011).
Thus, the court agreed that the plaintiff provided evidence of causation, and the conflicting expert testimony warranted the denial of the defendants’ motions for summary judgment.