Floor Manufacturer Dismissed from New Jersey Lung Cancer Case
May 6, 2021 (New York, NY) – Hawkins Parnell & Young secured summary judgment for a manufacturer of sheet flooring in a living lung cancer case in the New Jersey Superior Court in Middlesex County. Litigator Erich Gleber from the Hawkins Parnell New York City office represented the client.
The plaintiff alleged her lung cancer developed from take-home exposure to asbestos from washing her husband’s work clothing. Her husband claimed that he cut and installed sheet flooring during his career as a floor tiler. Hawkins Parnell argued that the claims by the plaintiffs failed to establish causation under Sholtis v. American Cyanamid Co.,238 N.J. Super 8 (App. Div. 1989) and that their expert reports constituted insufficient “net opinion.” Judge Ana C. Viscomi agreed with Hawkins Parnell that Sholtis required the expert reports for the plaintiffs to provide more than conclusory opinions on causation with specific types of products. The court found that the expert reports lacked studies on the asbestos content or the levels of asbestos exposure a person would have from installing asbestos-containing sheet flooring. Thus, the methodology by the experts for causation opinions was entirely conclusory. Judge Viscomi granted the motion for summary judgment drafted and argued by Hawkins Parnell in its entirety.
Judge Viscomi’s decision substantially strengthens the court’s gatekeeping function regarding the adequacy of the plaintiff’s medical causation expert reports under Sholtis. To raise a triable issue of fact on causation – in addition to the exposure requirements of frequency, regularity, and proximity recognized by Sholtis – the Albanese decision establishes that a plaintiff’s expert’s opinion must also assess, through scientific studies, the amount of asbestos a specific product is capable of producing.
The case is titled Albanese v. American Biltrite, Inc., et al., Docket No.: MID-L-2214-20AS, Superior Court of New Jersey, Law Division, Middlesex County.