In Nemeth v. Whittaker, Clark, & Daniels, Inc., 38 N.Y.3d 336 (April 26, 2022), New York’s highest court overturned a $15 million asbestos verdict, finding plaintiff’s trial proof on causation was insufficient as a matter of law. Plaintiff provided the expert opinion that decedent's exposure to contaminated talcum powder was a substantial contributing factor in causing decedent's peritoneal mesothelioma. The Court however found that the basis for that opinion was insufficient for establishing exposure to a toxin in an amount sufficient to cause decedent's peritoneal mesothelioma. The Court of Appeals held that plaintiff’s expert opinion in a toxic tort case must set forth “a plaintiff's exposure to a toxin, that the toxin is capable of causing a particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).” This is an elaboration upon the application of Parker v Mobil Oil Corp., 7 NY3d 434 (2006), the leading case on causation in the context of toxic tort litigation, to asbestos exposure cases.
The First Department has responded to the Nemeth decision rather swiftly, recently deciding four cases. Three granted the defendant’s motion for summary judgement and one negated a substantial verdict after trial.
In three of the four cases - Dyer v. American Biltrite, Grunert v. American Biltrite, and Pomponi v. A.O. Smith Water - the First Department reversed the New York trial courts’ denial of defendant American Biltrite Inc.’s (ABI) summary judgment motions asking for dismissal of the complaints and all claims and cross-claims against it. ABI manufactured Amtico vinyl floor tiles, and in all three cases, the plaintiffs claimed that their lung cancer was caused by exposure to the defendant’s product either by working with it or being in close proximity to others working with it.
In each of the three cases, the defendant ABI relied on a simulation study conducted by Environmental Profiles, Inc. in 2007 (2007 EPI study), involving ABI’s Amtico floor tiles. This study led ABI's experts to conclude that the exposure to chrysotile asbestos in each case was below the OSHA permissible exposure limit and also indistinguishable from the lifetime cumulative exposure that the general public is exposed to in the ambient air that we all breathe. ABI established prima facie a lack of specific causation by submitting the report and expert evidence. The First Department went on to say that “while pinpointing the exact numerical value is not always necessary, if defendant establishes its prima facie burden of a lack of specific causation, plaintiff’s opposition must raise a triable issue of fact as to such causation.”
In Pomponi, the Court found that plaintiff's opposition failed to raise any issue of fact as to specific causation. A showing that the decedent "work[ed] in dust laden with asbestos generated from products containing asbestos" accompanied by "expert testimony that dust raised from manipulating asbestos products 'necessarily' contains enough asbestos to cause mesothelioma" is not enough. Plaintiff's medical expert did point to simulation studies measuring an average level of airborne asbestos as high as 0.27 f/cc during the cutting, sanding, and snapping of asbestos-containing floor tile. The expert did not, however, provide any correlation between the asbestos fiber levels to which plaintiff may have been exposed and the amount of inhaled asbestos that would have caused decedent's lung cancer
In Dyer, the plaintiff’s expert generally concluded that "[t]here is no safe minimum level of exposure to asbestos with respect to lung cancer" and that "manipulation of asbestos containing floor tiles can result in release of asbestos fibers into the workers' environment that are exponentially greater than the ambient level of exposure." He also states that the asbestos process releases "visible dust" and that such dust is "certainly in dangerous concentration." However, Nemeth holds that such broad pronouncements and conclusions will not satisfy a plaintiff's causation burden, which is to show the levels of asbestos that the plaintiff was exposed to and that the levels are known to cause lung cancer. Likewise, to the extent Dr. Ginsberg's conclusions are based upon the presence of visible dust emanating from an asbestos-containing product, this theory fails to satisfy a plaintiff's burden on causation in asbestos cases.
In Grunert, the Court found that the plaintiff offered no expert to counter ABI's calculation of decedent's cumulative lifetime exposure, and thus no question of fact was raised as to its validity. The Court agreed with Nemeth, that “. . . precise qualification of exposure to a toxin is not always required, causation nonetheless requires the plaintiff to provide proof of ‘sufficient exposure to a substance to cause the claimed adverse health effect.’” The Court found that plaintiff had not met its burden to prove sufficient causation.
In the fourth case decided by the First Department, Olson v. Brenntag North, the plaintiff claimed exposure to Johnson & Johnson talcum powder caused her mesothelioma. The trial court denied J & J’s motion to set aside the verdict and to enter judgment in its favor, and the First Department reversed that denial.
The First Department found that at trial, plaintiffs failed, as a matter of law, to carry their burden to establish sufficient exposure to a substance to cause the claimed adverse health effect. Proof of causation in a toxic tort case must establish "a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation), and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).” To make such a showing, a plaintiff must present expert testimony providing a "scientific expression of the level of exposure to toxins in defendant's products that was sufficient to have caused the disease.” Even if it is assumed that plaintiffs presented sufficient evidence to support their mineral expert's estimate of the amount of asbestos to which plaintiff Donna Olson was exposed each time she used J&J's talcum powder products, plaintiffs' medical expert never set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to cause mesothelioma, the disease in question. Thus, the medical expert's testimony that mesothelioma could have resulted from “a significant exposure above normal background levels” was insufficient.
Nemeth has spurred these four very defense-friendly decisions in the New York Appellate Division, First Department, relative to asbestos litigation. The plaintiff’s bar, for now at least, is held to a higher standard to meet their burden of showing specific causation. The cases support the holding in Nemeth that that plaintiff’s expert opinion in an asbestos case must set forth “a plaintiff's exposure to a toxin, that the toxin is capable of causing a particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).”
Specific causation now appears to be an even greater hurdle for plaintiffs to overcome, making their experts vulnerable not only at trial, but on summary judgment as well. We will continue to monitor how other judicial departments address this stringency in applying Nemeth, but plaintiffs seemingly can no longer rely on boilerplate expert opinions lacking relevant specificity.