On July 19, 2022 the Supreme Court of New York, Appellate Division, First Department issued four separate decisions regarding the medical causation standard of proof in toxic tort cases. All four followed the Court Of Appeals April 2022 decision in Nemeth v. Brenntag N. Am., 2022 NY Slip Op 02769.
In Olson v. Brenntag N. Am., 2022 NY Slip Op 04611(App. Div. 1st Dept.), the Court unanimously reversed and set aside a $120 million talc verdict and entered judgment in favor of Johnson & Johnson. The Court found that at trial, plaintiffs “failed, as a matter of law, to carry their burden ‘to establish sufficient exposure to a substance to cause the claimed adverse health effect’ ” and that plaintiffs' medical expert failed to “set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to cause mesothelioma”. Olson, slip op at *1 citing Nemeth, slip op at *1. Citing Nemeth, the Court further reasoned "we have 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. Accordingly, the Court held “that the medical expert's testimony that mesothelioma could have resulted from 'a significant exposure above normal background levels" was insufficient.' Id.
In Dyer v Amchem Prods. Inc., 2022 NY Slip Op 04609 (App. Div. 1st Dept.), the Court unanimously not only reversed the trial court’s denial of summary judgment to defendant but also granted summary judgment to the defendant in an asbestos case holding that plaintiff must present expert testimony providing a scientific expression of the level of exposure to toxins sufficient to cause the disease. Dyer, slip op at *2. Merely quantifying the magnitudes of asbestos fibers released into the environment is insufficient. Broad pronouncements by plaintiff’s expert without “any reliable correlation between the presence of asbestos fiber concentrations found in the studies and how much inhaled asbestos would have caused lung cancer generally and the decedent's lung cancer in particular” is inadequate. Id. at *4. Because plaintiff’s proofs did not meet the requisite standard, summary judgment in favor of the defendant was warranted. Effectively, proofs must be sufficient to show “how much higher than the ambient levels the toxin concentration needs to be to trigger disease.” Id. The Dyer decision also recognized that "comparisons should be specific enough to show plaintiff's exposure level to those of other subjects" Id.
In Pomponi v. A.O. Smith Water Prods. Co., 2022 NY Slip Op 04612 (App. Div. 1st Dept.), the Court unanimously reversed the trial court and granted summary judgment to the defendant in an asbestos matter. The Court held that “a showing that the decedent "work[ed] in dust laden with asbestos generated from products containing asbestos" accompanied by "expert testimony that dust raised from manipulating asbestos products 'necessarily' contains enough asbestos to cause mesothelioma is not enough”. Pomponi, slip op at *1-2 citing Nemeth, slip op at *2 n 3. Although plaintiffs' medical expert cited to simulation studies measuring an average level of airborne asbestos he did not “provide any correlation between the asbestos fiber levels to which plaintiff may have been exposed and the amount of inhaled asbestos that would have caused decedent's lung cancer”. Id. Therefore, summary judgment was warranted in the matter.
In Killian v. A.C. & S., Inc., 2022 NY Slip Op 04610 (App. Div. 1st Dept.), the Court reversed the trial court in another asbestos matter and granted summary judgment to a defendant. With respect to defense expert studies, the Court reasoned that “while the reliability of those calculations could pose an issue of credibility, the fact that they were performed by a paid expert does not automatically invalidate their conclusions.” Killian, slip op at *1. Since plaintiff offered no expert to counter the defense expert studies as to the calculation of decedent's cumulative lifetime exposure, there was no question of fact raised as to the validity of the defense expert study. The decedent's testimony simply was not sufficient to raise an issue of fact of whether he was exposed to sufficient quantities of respirable asbestos to cause disease.
These decisions are binding on the trial court and set clear requirements on proofs necessary to establish medical causation. And although in the three asbestos cases the defendant had conducted studies on the alleged asbestos product, that does not arguably deprive defendants who have not conducted studies on their own products from arguing the applicability of the above case law. HKMP will keep you posted and as always, we welcome your thoughts and hope you enjoy this issue of HKMP’s Case Alerts.
