In Nemeth v. Brenntag N. Am, et al. the New York Court of Appeals rendered a 5-1 decision on April 26, 2022 in a toxic tort mesothelioma case in which the Court overturned a $16.5 million jury verdict and dismissed the complaint against defendant, Whitaker Clark & Daniels, the only defendant remaining at the time of trial. The Court held that plaintiff’s proof of causation was insufficient as a matter of law, relying upon established case law that a court may set aside a jury verdict that is not supported by legally sufficient evidence where “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational (jurors) to the conclusion reached by the jury on the basis of the evidence presented at trial.” Accordingly, the Court of Appeals set aside the jury verdict and dismissed the complaint. Nemeth, slip op. at *5 citing Cohen v Hallmark Cards, 45 NY2d 493, 499 (1978); CPLR 4404 (a). In particular, the majority found the opinions offered by plaintiff’s experts insufficient to demonstrate legal causation in several respects and criticized the failure to present testimony from an industrial hygienist to establish exposure levels known to cause mesothelioma as well as to estimate plaintiff’s actual exposure level.
As those involved in toxic tort litigation are well aware, plaintiffs typically do not retain industrial hygienists to render opinions as to each defendant’s product and the plaintiff’s exposure to each defendant’s product. This important decision may be used by defendants in Summary Judgment Motions after Notes of Issue are filed, in Motions for a Directed Verdict at the conclusion of plaintiff’s case before the jury, and in Motions for Judgment Notwithstanding the Verdict. The decision may also result in more streamlined toxic tort cases with plaintiffs’ retention of industrial hygienist experts focusing on target defendants as opposed to the present shotgun approach naming a multitude of defendants with little or no nexus to the plaintiff’s exposure(s) and disease.
The Nemeth Court resoundingly reaffirmed the Parker v Mobil Oil Corp., 7 NY3d 434, 448 (2006) decision on causation. Namely, “an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)”. Nemeth, slip op. at *6 citing Parker, 7 NY3d at 448. Although at times the “plaintiff’s exposure to a toxin will be difficult or impossible to quantify by pinpointing an exact numerical value,” “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”. Ibid. citing Parker, 7 NY3d at 447-448. There are “several ways an expert might demonstrate causation, for example by using mathematical modeling”; however, any method used must be “generally accepted as reliable in the scientific community”. Ibid. citing Parker, 7 NY3d at 449. The Court reviewed that case law subsequent to Parker emphasized that although precise quantification of exposure is not always required it “by no means . . . dispensed with a plaintiff’s burden to establish sufficient exposure to a substance to cause the claimed adverse health effect”. Id. at *6-7 citing Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762, 784 (2014), Sean R. v BMW of N. Am., LLC, 26 NY3d 801, 812 (2016); Matter of New York City Asbestos Litig. (Juni), 32 NY3d 1116, 1118 (2018), affg 148 AD3d 233, 236 (1st Dept 2017).
The New York Court of Appeals has “repeatedly rejected as insufficient to prove causation expert testimony that exposure to a toxin is ‘excessive’ or ‘far more’ than others, and such testimony that merely links a toxin to a disease or ‘work[s] backwards from reported symptoms to divine an otherwise unknown concentration’ of a toxin to prove causation”. Id. at *7 citing Parker 7 NY3d at 449, Sean R., 26 NY3d at 810. Consequently, expert testimony is to be excluded “when ‘there is simply too great an analytical gap between the data and the opinion proffered’”. Id. (citations omitted). Clearly and unequivocally a causation expert must establish that plaintiff was exposed to sufficient levels of the toxin from the defendant’s product to have caused disease. An expert’s conclusion that plaintiff’s exposure was “frequent” or “excessive” is not a “scientific expression” of exposure level. Id. at *8-9 citing Matter of New York City Asbestos Litig. (DiScala), 173 AD3d 573 (1st Dept 2019)). Conclusory assertions of causation are insufficient to meet the Parker toxic tort standard on causation.
After reaffirming the New York’s toxic tort causation standard, the Nemeth Court conducted an in-depth analysis regarding plaintiff’s medical internist expert, Dr. Jacqueline Moline, and plaintiff’s geologist expert, Sean Fitzgerald. The Court found that the studies and scientific literature cited to and relied upon by Dr. Moline did not provide the necessary support for her conclusions as to proximate causation since they did not quantify or identify levels of exposure, nor did they provide a foundational basis for her opinion that “exposure to asbestos at a level analogous to decedent’s was shown to be a substantial factor in causing mesothelioma of any kind”. Dr. Moline was also unable to “provide ‘a specific comparison sufficient to show how the plaintiff’s exposure level related to those of the other subjects’”. Id. at *10 citing Parker, 7 NY3d at 449. The Court also cautioned that standards promulgated by regulatory agencies “are inadequate to demonstrate legal causation”. Ibid. citing Parker, 7 NY3d at 450.
The Nemeth Court was also dismissive of plaintiff’s geologist expert’s testimony and his glovebox test which were relied upon by Dr. Moline. Plaintiff’s geologist could not establish the amount of fibers to be inhaled, “nor did his identification of the number of released fibers and description of those fibers as of “an inhalable size” establish causation demonstrating that decedent’s exposure was comparable to similar exposures proven to be causally related to the development of mesothelioma.” Id. at *10-11. Further, the Court opined that “[w]hile a precise numerical value is not required, the geologist’s test failed to provide any scientific expression linking decedent’s actual exposure to asbestos to a level known to cause mesothelioma.” Id. at *11.
The Court “recognized that in any given case it may be “‘difficult, if not impossible, to quantify a plaintiff’s past exposure’ to a toxin” the causation standard itself is not “impossible for plaintiffs to meet” as a balance must be struck “between the need to exclude ‘unreliable or speculative information’ as to causation with our obligation to ensure that we have not set ‘an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court’”. Id. at *11-12 quoting Parker, 7 NY3d at 447. The Court was satisfied that this "requirement that plaintiff establish, using expert testimony based on generally accepted methodologies, sufficient exposure to a toxin to cause the claimed illness" struck the proper balance. Id. citing Cornell, 22 NY3d at 784.
Notably, the Court of Appeals cited plaintiff's failure to present an industrial hygienist who “could also have introduced evidence regarding the inhalation levels known to cause peritoneal mesothelioma” especially since plaintiff’s own expert, Dr. Moline, admitted an industrial hygienist could have estimated decedent’s inhalation levels.
Hardin Kundla McKeon & Poletto will continue to keep you advised of trial court applications of this decision and any appellate progeny. In the interim, if you have any questions regarding the Nemeth decision, any of the cases cited therein, or if HKMP can be of service to you, then please contact us at [email protected] or 973-912-5222.
