Causation Science Really Does Matter In NY Toxic Tort Litigation
In what may arguably be the most terse “landmark decision” to be published by the New York Court of Appeals (68 words/two sentences), New York’s highest court affirmed a trial court order setting aside an $11m jury verdict holding Ford Motor Company liable for a former auto mechanic’s mesothelioma, alleged to have been caused by 25 years of exposure to asbestos while servicing Ford vehicles.
The tweet-length decision in Juni v. A.O. Smith Water Products, was a re-affirmation by the New York Court of Appeals of its reasoning in two prior key decisions, Parker v. Mobil Oil, 7 NY3d 434  and Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762  that it is not enough for a plaintiff to merely allege, with the support of an expert, that he was exposed to a toxic substance, and that this exposure resulted in the illness alleged. To prevail, the plaintiff must raise a triable issue of fact as to his exposure to a specific toxin, quantify the level of exposure to some degree, and posit that such level of exposure was sufficient to produce the alleged injuries. In Juni, viewing the evidence in the light most favorable to plaintiffs, the court determined that the evidence was insufficient as a matter of law to establish that Ford Motor Company’s conduct was a proximate cause of the decedent’s injuries.
At trial, plaintiff’s expert’s opinion testimony was found to fly in the face of the Parker standard, which requires that a toxic tort plaintiff provide some specific evidence concerning the amount, duration and frequency of exposure. The trial judge, Justice Barbara Jaffe, correctly held that Parker and Cornell required plaintiff to offer more than merely as “association” between asbestos exposure and decedent’s illness. Legal causation requires, not just an association, but rather “whether a particular defendant may be held liable” for causing a person’s mesothelioma. In issuing her ruling, Justice Jaffee demonstrated a measure of judicial independence that appeared to be at odds with much of NYCAL’s lackadaisical scrutiny of expert testimony. The majority of NYCAL jurists do not dispute plaintiff’s theory that a “single fiber” of asbestos causes disease cumulatively and,therefore, becomes a substantial factor in causing illness. Although“single-fiber” advocacy has been increasingly rejected by appellate courts outside New York, the traditional acceptance of this theory of liability in NYCAL accounts, in part, for the over-sized settlements made by corporate defendants only marginally connected to a plaintiff’s asbestos exposure.
The most important take-away from Juni is that the decision will likely have a greater impact in New York toxic tort litigation that does not involve asbestos than it will in downstate asbestos jurisprudence. The Juni ruling emerged from deep within the primordial machinery of the New York County Asbestos Litigation (or “NYCAL”).
Although Juni will no doubt become the rallying cry of the NYCAL defense bar in 2019, and may even result in the odd asbestos case getting dismissed now and then, no one in NYCAL truly believes that a mere Court of Appeals decision will cause the gears of the plaintiff asbestos juggernaut to grind to a halt, let alone slow. NYCAL Justice Joan Madden has already signalled that Juni will be constructed narrowly in the days ahead. In her recent decision in Robaey v. Air and Liquid Systems, et al (NYCAL index No. 190276/13), Justice Madden ruled that Juni was not applicable to a different kind of asbestos exposure case, such as one involving testimony that there was “visible dust” with respect to exposure to asbestos in automotive gaskets. In Robaey, she reasoned that, unlike dust generated from working with gaskets, 99% of the dust generated from working with automobile brakes did not contain asbestos. Therefore, she ruled, Juni was not directly applicable in a gasket case. She also noted that plaintiff’s expert in Juni equivocated on the witness stand in discussing proximate cause.
Therefore, it is likely that plaintiff’s counsel in NYCAL will continue to ask the questions that are often found sufficient in NYCAL trial courts to get a meso case in front of a jury.
Q. Was there dust? A. Yes.
Q. Did you inhale that dust? A. Yes.
Justice Rivera, in his dissenting opinion in Juni, blasted the Majority’s opinion in a strongly worded dissent that will likely become the “text book” for the NYCAL plaintiff bar going forward in seeking to uphold NYCAL juries’ plaintiff verdicts. Justice Rivera could not support the Majority’s opinion because he was unable to conclude that the jury’s verdict was “utterly irrational”. Considering what he viewed as damning internal Ford documents obtained in discovery, and introduced at trial, it is unlikely that any lack of scientific rigor or uncertaintly on the part of plaintiff’s experts in Juni would have changed his mind.
Although Frye, the standard that governs the admissibility of expert testimony in New York, may not be as nimble a standard as Daubert, the New York Court of Appeals had issued, before Juni, three major decisions that provide a road map for defense practitioners seeking to lay the evidentiary foundation of a Frye challenge to adversary experts’ scientific opinions and methodologies. This triumvirate consists of Parker v. Mobil Oil, 7 N.Y. 3d 434 (2006); Cornell v. 360 W. 51st St. Realty, 22 N.Y. 3d 762 (2014); and Sean R. v. BMW of N. Am., 26 N.Y. 3d 801 (2016). Both the high court’s decisions and the lower court holdings that lay the groundwork for the high court’s decisions are required reading for the toxic tort practitioner. Given its brevity, Juni does not break any new ground, but it is an important decision not least because it represents a wake-up call to a complacent NYCAL judiciary.
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