New York’s Court of Appeals Affirms the First Department’s Decision in Juni v. A.O. Smith
Expert’s testimony must be based on scientifically expressible foundations
On November 27, 2018, in the matter of New York City Asbestos Litigation, Mary Juni v. A.O. Smith Water Products Co., et al, the Court of Appeals affirmed the First Department’s decision that the proper standards of causation articulated in Parker v. Mobil Oil Corp., 7 NY3d 434 (2006) are applicable to asbestos cases. In the decision, the Court of Appeals agreed that in asbestos cases, a plaintiff must demonstrate through “some scientific expression” that the “level of exposure to toxins in [a] defendant’s products [would be] sufficient to have caused the disease.” The decision affirmed the First Department’s position that as a matter of law, proof that a toxin possibly caused harm is not enough, and at a minimum, scientific evidence must be presented to show that the level of exposure was actually enough to cause the alleged injury.
Arthur Juni was a mechanic who sued numerous product manufacturers including Ford Motor Company for failing to warn of the hazards of asbestos. The plaintiff alleged that his mesothelioma was caused by the inhalation of asbestos fibers released from friction products (including brakes, clutches, and various gaskets) sold by Ford, amongst others.
During the trial, plaintiff failed to produce an expert that would utilize a “scientific expression” to quantify the amount of asbestos fibers released from the products at issue in order to calculate the level of contribution to Plaintiff’s illness. Rather, plaintiff produced two physician experts (Dr. Steven Markowitz, and Dr. Jacqueline Moline) to advance the theory that any and all levels of exposure to asbestos cumulatively would contribute to the disease. Neither of these experts were able to scientifically quantify the amount of exposure necessary for it to be considered “substantial”. Ford was ultimately found reckless in its conduct and a verdict was rendered against it. After the trial, Ford utilized CPLR 4404(a) to move to strike the expert testimony based on a lack of foundation. Ford reasoned that the absence of a “scientific expression” to quantify the exposure alleged against itself conflicted with the standards required under Parker and Cornell v. 360 West 51st St. Realty, LLC, 22 NY3d 762 (2014), to create a foundation for Plaintiff’s expert’s testimonies. The court ultimately granted Ford’s motion to strike, which set the verdict aside and dismissed the case for Ford. Plaintiff promptly appealed.
The First Department affirmed the trial court’s holding. Relying on Parker, and Cornell, the First Department held that the theory that each and every exposure would contribute substantially to cause a given asbestos related disease was irreconcilable to the need for a scientific expression of quantification necessary under Parker. Again, Plaintiff appealed.
In a one paragraph opinion, the Court of Appeals fully affirmed the decision of the First Department stating that the evidence in the record “was insufficient as a matter of law to establish that respondent Ford Motor Company’s conduct was a proximate cause of the decedent’s injuries pursuant to the standards set forth in Parker, and Cornell.” The Court of Appeals further agreed that by applying Parker “… on this particular record, defendant was entitled to judgment as a matter of law under CPLR 4404(a).”
Judges Eugene M. Fahey, and Rowan Wilson published concurring opinions, with Judge Jenny Rivera dissenting. Judge Fahey’s concurrence succinctly stated that plaintiff’s proofs failed to establish by legally sufficient evidence a connection between Ford’s products and decedent’s exposure to asbestos. Judge Wilson’s concurrence differentiated general causation with specific causation stating that the affirmance should have been solely on general causation. The facts showed that exposure to raw asbestos fibers greater than 5 microns in length would cause an increased risk for mesothelioma, and that the plaintiff’s death was because of mesothelioma. Yet, Plaintiff failed to address Ford’s expert testimony on the transformation of asbestos fibers into an inert substance called Forsterite. Without an expert to clarify whether plaintiff’s exposure was actually raw asbestos, or some other inert substance, a necessary link in the proof of proximate cause was missing.
Judge Jenny Rivera’s dissent began by addressing the standard to set aside a verdict under CPLR 4404(a). Highlighting that setting aside a verdict must be based on a premise of utter irrationality, devoid of a valid line of rational reasoning based on the evidence at trial; Judge Rivera stated that the evidence was sufficient to support its verdict. She further cited to Judge Paul Feinman’s dissent to the First Department’s underlying decision, which differentiated asbestos cases from toxic tort cases found under Parker and Cornell, stating that asbestos cases are of a nature that would make the scientific quantification of exposure an insurmountable burden for plaintiffs. Judge Rivera stated that the evidence was compelling, and that as the jury was unpersuaded by Ford’s experts, the decision should not have been vacated.
Practically, the question of whether the toxic tort standard of Parker and Cornell apply to asbestos cases has now been settled. Across the State of New York, a plaintiff at trial will now have to scientifically express a foundation for offering expert testimony to show that a given exposure to asbestos would substantially contribute to a plaintiff’s disease. As discussed in the First Department’s decision, with regard to friction products such as brakes, clutches, and gaskets, the current scientific literature nearly uniformly states that mechanical work on friction products does not increase the risk of developing mesothelioma. In other words, a plaintiff’s expert will now have to scientifically express a basis for his belief that a given product’s release of asbestos fibers would be enough to conclude that it was a significant factor in the development of an asbestos related disease.
Although Juni was a case that considered the sufficiency of expert testimony to prove an element of plaintiff’s prima facie burden at trial, courts in New York have also recently relied upon the First Department’s 2017 decision to consider plaintiff’s burden at the summary judgment stage in granting dismissals. By arguing the inability of plaintiff’s experts to establish proximate causation, courts have begun granting dismissals based on the foregoing. It remains to be seen whether Parker can be applied in the summary judgment context with the New York City Asbestos Litigation Court. To date, the New York City Asbestos Litigation Court has declined to entertain any such analysis at the pre-trial stage of litigation.
 Judge Feinman published his dissent while he was part of the First Department and since that time has moved on to sit on the New York Court of Appeals. Based on his prior involvement with the First Department decision and his dissent, Judge Feinman recused himself from the case at the Court of Appeals level.
 See e.g., Pistone v. American Biltrite, Inc., Supreme Court, Nassau County 607637/2015; see also, Novello v. American Honda Motor Co., Nassau County 607229/2015.