New York Appellate Division's Rejection of “Cumulative Exposure” Theory of Causation in Asbestos Litigation
In a welcome development for toxic tort defendants, New York’s Appellate Division, First Department, affirmed a trial court’s order setting aside a plaintiffs’ verdict on the ground that the plaintiff’s expert testimony failed to meet the New York standard under Parker, and so was legally insufficient to establish that the plaintiff’s mesothelioma was caused by asbestos-containing friction products. In In re New York City Asbestos Litigation (Juni), 2017 WL 778358, the First Department (1) rejected the “cumulative exposure” theory of causation in asbestos cases, and (2) distinguished as a matter of fact and law an earlier Appellate Division case, Lustenring v AC&S, Inc., 13 A.D.3d 69 (1st Dep’t 2004), on which plaintiffs had relied in compiling a string of appellate victories, including the recent decisions of Sweberg v ABB, Inc., 143 A.D. 483 (1st Dep’t 2016) and Hackshaw v ABB, Inc., 143 A.D.3d 485 (1st Dep’t 2016). This is the first time a New York appellate court has spoken on this particular issue. Beyond setting the precedent governing causation in the First Department, the case should reverberate state-wide as a persuasive authority in the Second, Third, and Fourth Departments.
A. The Clarified Standard For Admitting Expert Testimony Under Juni.
The Juni appeal was based on the trial court’s decision to set aside a jury verdict reached against defendant Ford Motor Company. The plaintiffs’ decedent, Arthur Juni, was a mechanic who claimed exposure to asbestos from his years of work with automotive friction products, including brakes, clutches, and engine gaskets on Ford vehicles. In support of their claim that such exposure caused his mesothelioma, plaintiffs relied upon the expert testimony of Dr. Steven Markowitz and Dr. Jacqueline Moline to establish general and specific causation. Following the jury’s finding in favor of plaintiffs, Ford sought and obtained an order from the trial court to set aside the jury’s verdict.
The First Department affirmed the trial court’s order, determining that Dr. Markowitz’s testimony that the presence of visible dust, alone, was insufficient to prove general causation, and that Dr. Moline’s theory of “cumulative exposure” fell short of the standard required by the Court of Appeals in Parker v Mobil Oil Corp., 7 NY3d 434 (2006) and Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762 (2014).
The Court held that the evidence failed to prove causation because the experts “testified only in terms of an increased risk and association between asbestos and mesothelioma . . . but failed to either quantify the decedent’s exposure levels or otherwise provide any scientific expression of his exposure level with respect to Ford’s products.” In re New York City Asbestos Litigation (Juni), 2017 WL 778358 at *2. Further, the Court recognized that “[n]either of the plaintiffs’ experts stated a basis for their assertion that even a single exposure to asbestos can be treated as contributing to causing an asbestos-related disease. Moreover, reliance on the theory of cumulative exposure, at least in the manner proposed by plaintiffs, is irreconcilable with the rule requiring at least some quantification or means of assessing the amount, duration, and frequency of exposure to determine whether exposure was sufficient to be found a contributing cause of the disease.” Id. at *4.
Additionally, the Court distinguished an earlier case, Lustenring v AC&S, Inc., 13 A.D.3d 69 (1st Dep’t 2004), in which it had held that “the evidence showed that both the plaintiffs worked all day for long periods in clouds of dust raised specifically by the manipulation and crushing of the defendant’s packing and gaskets, which were made with asbestos,” and that “[v]alid expert testimony indicated that such dust, raised from asbestos products and not just from industrial air in general, necessarily contains enough asbestos to cause mesothelioma.” The Juni Court confined Lustenring to its discrete facts. It explained that “[w]here the courts relied on evidence linking visible dust to the use of the particular defendant’s product, expert testimony established that the extent and the quantity of the dust to which the plaintiffs had been exposed contained enough asbestos to cause the mesothelioma. In none of those cases was the mere presence of visible dust sufficient alone to prove causation.” In re New York City Asbestos Litigation (Juni), 2017 WL 778358 at *3.
This clarification is particularly helpful to friction defendants, given that Lustenring had generated a plaintiff-friendly line of precedent that had been embraced by numerous First Department panels, evidenced in the recent decisions of Sweberg v ABB, Inc., 143 A.D. 483 (1st Dep’t 2016) and Hackshaw v ABB, Inc., 143 A.D.3d 485 (1st Dep’t 2016). Because it dealt specifically with asbestos dust, plaintiffs relied on Lustenring to create a parallel causal standard to that required by Parker and Cornell, which concerned benzene and mold, respectively. By expressly limiting Lustenring to its unique facts and subjecting it to the causal requirements of Parker, the First Department limited the ability of plaintiffs to rely on the mere presence of dust, regardless of the environment and product at issue, to establish causation between asbestos and an asbestos-related condition.
B. Down, But Not Out.
Of course, Lustenring remains good law and NYCAL courts remain content to rely on it as a controlling standard in certain instances. Recently, in In re New York City Asbestos Litigation (Evans), 2017 NY Slip Op 30756(U), Sup. Ct. N.Y. County, Index No. 190109/15 (April 17, 2017), Judge Moulton denied the defendant’s motion in limine, which sought to preclude testimony by the plaintiff’s causation experts. In so doing, the court applied Lustenring as controlling authority in that case and went to great lengths to distinguish Juni. In Evans, the last remaining defendant in made boilers, not automotive friction products, such that an expert could reasonably conclude that the dust to which plaintiff was exposed contained enough asbestos to cause mesothelioma, as in Lustenring. Additionally, the court noted that plaintiff’s expert could be expected to expand on his report at trial, and that even in Juni, the court reserved decision on Ford’s motion to preclude until after the verdict.
In light of Judge Moulton’s decision in Evans, non-friction defendants are likely to continue running into difficulty as long as Lustenring persists as a parallel causal standard to Juni. This is not surprising, given that the First Department panel went to some lengths to distinguish the two cases, potentially narrowing Juni’s utility to products that were not the subject of the Lustenring line of cases. Thus, defendants with products such as boilers, pumps, and valves that were used in industrial settings will likely continue to be held to the Lustenring standard. Similarly, in another recent case, Judge Shulman ruled that Juni did not preclude Dr. Moline from opining on specific and general causation with respect to asbestos in cosmetic talc products. See In re New York City Asbestos Litigation (Robusto), Sup. Ct. N.Y. County, Index No. 190413/2013 (June 19, 2017). For automotive friction defendants and others, however, Juni remains a fruitful option for precluding cumulative exposure testimony.
C. Defendants Relying on Juni Should Be Prepared To Present Their Own Expert Evidence on Causation
Though it strikes at the heart of a plaintiff’s case, the result in Juni is unlikely to be the last word on causation in toxic torts. Rather, it reflects the standard to which expert opinions must rise to in order to be presented to a jury. The trick for toxic tort defendants, then, is how to preclude this testimony by demonstrating that a plaintiff’s theory of causation will fall short of that standard.
Juni is a somewhat uncommon example in that the trial court ruled that the expert testimony was inadmissible to prove causation after the plaintiff’s case had been presented to the jury. In Parker and Cornell, however, the defendants had filed pretrial motions for summary judgment and to preclude the experts’ testimony. The trial courts in those matters considered the admissibility of plaintiffs’ expert testimony only after acknowledging that the defendants met their initial burden at summary judgment. In support of their motions, the defendants offered their own expert evidence to disprove the plaintiffs’ theory of causation. Having established that threshold issue, the courts were compelled to examine the foundation of plaintiffs’ expert evidence offered in opposition. As a result, the defendants managed to resolve those cases as a matter of law.
Any party using Juni to attack expert testimony should bear in mind the lessons of Parker and Cornell and be prepared to meet their burden as if on summary judgment. As the Court of Appeals explained in Cornell, “a Frye ruling on lack of general causation hinges on the scientific literature in the record before the trial court in the particular case. . . . [S]cientific understanding, unlike a trial record, is not by its nature static; the scientific consensus prevailing at the time of the Frye hearing in a particular case may or may not endure.” Cornell, supra, 22 NY3d at 785-86. Thus, a defendant’s motion directed at the plaintiff’s expert evidence may not succeed if it seeks to disprove a plaintiff’s theory of causation as a matter of law by relying solely on the application of Parker. See, e.g., Matter of New York City Asbestos Litigation (Feinberg), 53 Misc. 3d 579, 2016 NY Slip Op 26204 (June 22, 2016, Moulton, J.) (absence of any study connecting talc to mesothelioma was insufficient to preclude plaintiffs’ causation experts from testifying at trial).
Therefore, even when the prevailing law favors a defendant, the defendant should still be prepared with facts of its own to disprove the plaintiff’s theory of causation. When a defendant builds a record in support of its own argument, then Juni can be a powerful tool in winning the battle of the experts well before trial even begins.