Supreme Court of New York, Appellate Division, Second Department, May 26, 2021
The plaintiff, Victoria Pistone, and her husband, suing derivatively, brought this asbestos action against American Biltrite, Inc. and Mannington Mills, Inc., among other defendants. The defendants moved separately for summary judgment based on a lack of causation. Judge George R. Peck granted summary judgment. The plaintiffs appealed.
The plaintiff alleged that exposure to asbestos caused her to develop peritoneal mesothelioma. She claimed she was exposed to the defendants’ flooring products from approximately 1973 to 1981 while accompanying her father to work. In addition, the plaintiff alleges take-home exposure to asbestos when her father returned home from work.
The Appellate Division, Second Department reversed Judge Peck’s decision. The court noted that an expert opinion on causation in a toxic tort case must set forth: (1) a plaintiff’s exposure to a toxin; (2) that the toxin is capable of causing the particular injuries the plaintiff suffered (“general causation”); and (3) that the plaintiff was exposed to sufficient levels of the toxin to cause the injuries (“specific causation”) (Sean R. v. BMW of N. Am., LLC, 26 NY3d 801, 809; see Cornell v. 360 W. 51st St. Realty, LLC, 22 NY3d 762, 784; Parker v. Mobil Oil Corp., 7 NY3d 434, 448).
The defendants offered affidavits from experts claiming that chrysotile asbestos generally, and that specifically found in the flooring products, could not cause peritoneal mesothelioma. They further opined that the plaintiff’s exposure to asbestos was below a safe threshold.
In response, the plaintiffs submitted their own expert affidavits raising issues of fact as to general and specific causation.
The court determined that the experts’ conflicting interpretations of the underlying studies and medical literature presented a credibility issue, which could not be resolved without jury consideration. Accordingly, the court reversed the decision granting summary judgment to the defendants.