Plaintiff Dario Battistoni worked as a butcher at a delicatessen in Queens, New York, from 1979 to 1980, and later worked as a butcher and banquet chef in kitchens at the Century Plaza Hotel in Los Angeles, California from 1980 to 1999. The plaintiff claims that at those jobs he worked with commercial kitchen equipment, including products made by defendant ITW Food Equipment Group LLC that exposed him asbestos and caused his mesothelioma. ITW moved for summary judgment, contending that its products could not have been a substantial contributing factor to the causation of plaintiff’s mesothelioma relying, in part, on Parker v. Mobil Corp., 7 NY3d 434 (2006).
ITW’s motion attacked the plaintiff’s assertion that each asbestos-containing product that he encountered during his lifetime, including ITW products, substantially contributed to the development of his asbestos-related disease. ITW further challenged the plaintiff’s reliance on the expert report of Dr. David Y. Zhang, a pathologist and occupational medicine specialist, who opined that plaintiff’s “mesothelioma is related to asbestos exposure and the cumulative exposure of [sic] each asbestos-containing product significantly contributed to the development of his malignant mesothelioma.” ITW argued that Dr. Zhang’s opinions should be rejected because they lack a proper foundation. In support of this argument, the defendant relied on the affidavit of Dr. Michael Graham, who contends that Dr. Zhang’s opinions are not premised on a generally accepted medical theory used to determine the causation of mesothelioma in the occupational and environmental medical community. ITW averred that Dr. Zhang’s report failed to quantify plaintiff’s alleged exposure to asbestos from commercial kitchen equipment, does not examine the frequency or regularity of the plaintiff’s alleged exposure, and does not do any type of qualitative assessment of plaintiff’s exposure or comparison of plaintiffs work to published studies of similar work. Finally, ITW averred that Dr. Zhang did not cite to a single work-practice or epidemiological study concerning work in commercial kitchens or work by butchers or chefs. Instead, ITW contended that Dr. Zhang relied solely on his own “general, subjective and conclusory assertions,” and on a theory that has been soundly discredited by courts, that “any exposure” to asbestos is a substantial contributing factor to the development of mesothelioma. Because Dr. Zhang employed no reliable scientific methodology in arriving at his causation opinion, in direct contravention of Parker, ITW submitted that his opinion lacked a proper scientific foundation and was inadmissible. Without Dr. Zhang’s causation testimony, the defendant asserted that the plaintiff could not maintain a cause of action against ITW, thus making judgment in its favor a fait accompli.
The plaintiff opposed the motion arguing that ITW ignored Dr. Zhang’s supplemental report, which considered relevant scientific literature and that the plaintiff testified as to the frequency and regularity of his exposure to visible asbestos dust through repair to various asbestos-containing products of ITW and that Dr. Zhang’s supplemental report and Dr. Neil Schachter’s report established that the exposures contributed to his cumulative dose of asbestos and caused his illness. Therefore, the plaintiff suggested, an issue of fact clearly existed as to whether plaintiff was exposed to asbestos from ITW products. Finally, the plaintiff challenged ITW’s assertion that it relied upon an “any exposure” theory. The plaintiff challenged ITW’s arguments concerning Parker, submitting that the presence of visible asbestos dust is sufficient evidence for an expert to opine that the product was a substantial factor in causing the disease and that the proper authority on the issue is Lustenring v. ACandS, Inc., 13 AD3d 69, 2004 and its long list of progeny, including post-Parker Appellate Division decisions re-applying the Lustenring standard. Lastly, the plaintiff argued that Dr. Graham’s contentions amount to nothing more than an improper attempt to impose a quantification requirement where none exists under Parker.
The court denied ITW’s motion because ITW failed to demonstrate that its products could not have contributed to the causation of plaintiff’s injury. The court noted that while ITW asserted that the plaintiff has failed to demonstrate that his exposures to its products were substantial, it is not the plaintiff’s burden on summary judgment to do so. Even if ITW had met its burden, the court held that issues of fact existed for trial. First, as to the dispute between Dr. Graham and Dr. Zhang, the court noted that it is the jury who must evaluate the plaintiff’s testimony of exposure to dust from the defendant’s product, with the aid of expert testimony, and decide whether the exposure was a substantial factor in causing his mesothelioma, not the court.
More importantly, the Court ruled that contrary to ITW’s argument, the plaintiff’s expert opinions do not fail to satisfy the requirements of Parker. The court stated that ITW misinterpreted Parker, “which noted that a plaintiff need not quantify exposure levels precisely or use a dose-response relationship.” The court noted that Parker relied on Westberry v Gislaved Gummi AB, 178 F3d 257, 4th Cir. 1999, a case which allowed expert testimony demonstrating that a plaintiff contracted sinus disease from airborne talc based on a qualitative, not quantitative, analysis. The court went on to quote Parker’s holding that “it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community.” The court held that the “long-settled appellate precedent both prior to and since Parker” has affirmed this view. The court rejected ITW’s contention that the plaintiff is required to express his alleged exposures with quantitative certainty and “[t]o take Parker to such an extreme would forestall recovery in nearly all asbestos cases.”