The New York appellate courts have recently issued several rulings that have applied the well-settled standard for specific causation (ie, that the amount, duration, and/or frequency of the plaintiff's exposure to an allegedly toxic substance was a substantial contributing factor to the development of plaintiff's disease) to find a plaintiff's expert testimony insufficient in asbestos cases. The key takeaways from these decisions are: (1) in order to establish specific causation, a plaintiff's expert must provide a specific, scientific expression of the levels of asbestos from a particular product necessary to cause a plaintiff's disease; and (2) in support of summary judgment motions on the specific causation issue, it may be necessary for defendants to provide their own expert opinions that exposure to particular levels of asbestos fibers released from their products could not have caused the plaintiff's disease.
The Court of Appeals recently held in Nemeth v. Brenntag, 22 NY Slip Op 02769 (2022), that a plaintiff's expert cannot establish specific causation without demonstrating that the levels of asbestos fibers released from a product could have contributed to the development of the disease at issue. In essence, Nemeth held that exposure simulation studies must go beyond demonstrating the quantity of asbestos fibers released into the environment at large, and must instead demonstrate the dose of respirable asbestos fibers released from a product itself in order to provide an estimate as to the quantity of fibers a plaintiff inhaled.
On July 19, 2021, in Olson v. Brenntag, Appeal No. 14875 (2022), the First Department applied Nemeth to hold that an expert's opinion that plaintiff's mesothelioma could have resulted from "a significant exposure above normal background levels" in connection with a talcum powder product was insufficient to establish specific causation. Critically, the court found that "plaintiffs' medical expert never set forth a scientific expression of the minimum lifetime exposure to asbestos [from the talcum powder] that would have been sufficient to cause mesothelioma . . . ." The court therefore set aside the verdict against the talcum powder manufacturer.
In several cases decided the same day, the First Department similarly applied Nemeth to hold that a tile manufacturer was entitled to summary judgment because plaintiffs' experts had failed to put forward sufficient evidence and testimony establishing specific causation. Significantly, in all three cases, the court emphasized that the defendant "had the burden to tender sufficient evidence to demonstrate the absence of any material issues of fact as to causation." The decisions all signal that a defendant must provide its own expert opinion demonstrating that the quantities of friable asbestos fibers released from its products are insufficient to cause a disease, rather than merely attacking a plaintiff's expert opinion as inadequate to establish specific causation.
In Dyer v. American Biltrite, Appeal No. 13739 (2022), the court held that the defendant had established: (1) "a prima facie case that plaintiff was not exposed to sufficient quantities of respirable asbestos from [defendant's] product to cause his particular lung cancer"; and (2) any respirable asbestos fibers emitted from defendant's product did not "raise the risk that plaintiff would contract lung cancer beyond the existing risk of contracting the disease in the general environment." Specifically, the defendant had provided evidence from a study demonstrating the quantities of respirable asbestos fibers emitted from its product when manipulated. The defendant also provided an expert opinion with calculations demonstrating that, based on the plaintiff's claimed frequency and duration of exposure to the product, the levels of friable asbestos released would not have contributed to the development of plaintiff's disease.
In Pomponi v. American Biltrite, Appeal No. 14982 (2022)and Grunert v. American Biltrite, Appeal No. 13739 (2022), the same defendant relied on the same study to establish its prima facie case that the plaintiff's exposure to the levels of fibers released from its product would not have contributed to the development of the plaintiff's lung cancer. In Pomponi, the plaintiff opposed the defendant's motion for summary judgment with an expert report that pointed to studies that quantified the levels of asbestos generated from manipulation of the product at issue, but the First Department held such evidence was insufficient to create a triable issue of fact where the expert failed to show a causal link between the dosage and the development of lung cancer. In Grunert, rather than providing a contrary expert opinion with quantifications, the plaintiff simply argued that the defendant's expert evidence was insufficient because it was based on a study funded in part by defendants. The First Department summarily rejected this argument to hold that although the study might pose a problem for credibility, this "did not automatically invalidate the conclusions," and plaintiff's failure to provide his own expert calculations failed to create a triable issue of fact.
While appeals of the three First Department cases are expected, the above decisions make clear that the appellate courts will require a plaintiff to demonstrate that there is at least an issue of fact with regard to whether a defendant's products emit sufficient respirable asbestos fibers to contribute to the development of the disease at issue. Defendants are therefore well-advised to rigorously develop their own scientific and exposure defenses with quantifications of dose to bolster their causation arguments in the context of both dispositive motion practice and the presentation of compelling trial evidence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
