Motions for Summary Judgment on Causation Issues Denied as Issues of Fact Exist

Supreme Court of New York, New York County

In this asbestos action, the decedent, Donald Avakian, was diagnosed with lung cancer in August 2017 and subsequently passed away in June 2019. The decedent contended that he worked with asbestos-containing products throughout his career, including friction products and floor tiles.

Two defendants moved for summary judgment. They argued that the plaintiff cannot establish general or specific causation against them. Specifically, the floor tile defendant set forth that “plaintiff has not offered any scientific evidence to prove that [their] floor tiles release chrysotile asbestos fibers at a level capable of being a substantial contributing factor to the development of lung cancer in the general population.” They rely on two expert reports in support. First, the floor tile defendant argued that Mr. Spencer, an industrial hygienist, opined that the decedent’s “cumulative exposure would be less than 0.0084 f/cc-yrs, an amount indistinguishable from most ambient measurements and below occupational exposure levels allowed by the OSHA, the WHO and the USEPA.” Further, Dr. Geyer, a pathologist, opined that if any exposure to asbestos occurred from any work the decedent performed with the defendant’s floor tiles, the exposure “would have been insufficient to contribute to the cause of his reported lung cancer.” In opposition, the plaintiff pointed to the dcedent’s deposition testimony and the floor tile defendant’s answers to interrogatories to show that the decedent identified the floor tile defendant’s product as a source of his asbestos exposure.

An automobile defendant also moved for summary judgment, arguing that the plaintiff cannot meet the specific causation standard under Parker. They submitted the expert report of Ms. Robbins, an industrial hygienist, who opined that the decedent’s “part-time occupational vehicle mechanic work would be similar or less than that of vehicle mechanics, for whom exposures are already insignificant and who are not at increased risk of lung cancer.” In addition, Dr. Alexander, an epidemiologist, opined that “there is no scientific basis to conclude that [Decedent’s] motor vehicle work, including his work with brakes and clutches, increased his risk of lung cancer.” Dr. Alexander further stated that “[w]ith regard to chrysotile asbestos fibers, epidemiologic studies have shown that workers heavily exposed to chrysotile asbestos fibers … may be at increased risk of lung cancer, however, excess risk may only occur in the presence of asbestosis.” Dr. Alexander noted that the decedent was never diagnosed with asbestosis. In opposition, the plaintiff submitted the report of Dr. Ginsburg. Dr. Ginsburg opined that “asbestos alone is a recognized substantial contributing cause of primary lung cancer.” He further opined that “[t]here is no safe minimal level of exposure to asbestos with respect to lung cancer,” and that “there is a general consensus among the scientific community, science organizations, and health agencies that exposure to all forms of asbestos including chrysotile, increase the likelihood of developing cancer.”

Essentially, Judge Silvera denied both motions for summary judgment. Justice Silvera cited to Marzigliano for the proposition that “”[p]laintiffs are not required to show the precise causes of damages as a result of [plaintiff’s] exposure to [defendant’s] product, only facts and conditions from which defendant’s liability may be reasonably inferred.” Here, issues of fact exist as the decedent identified the defendants’ products as sources of his asbestos exposure, coupled with the defendant floor tile’s admissions and the automobile defendant’s conflicting expert reports. As such, Judge Silvera denied both motions.

Read the first decision here.

Read the second decision here.