NOTE FROM THE EDITOR:
We are thrilled to announce Mark Nemeth as the newest member of the Hurwitz Fine team! Mark brings over 20 years of experience, primarily defending asbestos-related claims throughout New York State involving lung-cancer and mesothelioma for a wide variety of defendants including industrial, commercial, and residential exposure. He is also experienced in the areas of premises liability, product liability, transportation negligence and nursing home negligence. Additionally, Mark serves at the Town Justice for Grand Island, New York, after serving 15 years as the Town Prosecutor.
We will lead off this issue with Mark’s take on the Nemeth (no relation) Court of Appeals asbestos causation decision and the immediate ripple effect on asbestos litigation, including the vacatur of what was initially a $325 million jury verdict.
There is still no update on the proposed Grieving Families Act, legislation that will completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons who can seek recovery in a death claim. The bill passed both the New York Senate and Assembly but has not yet been requested by the Governor.
Mike Williams brings more news on the Child Victims Act/ Adult Survivors Act. While successor liability is a familiar issue in products litigation, a recent Fourth Department decision addresses this issue in the context of a CVA claim.
Jesse Siegel presents a defective sneaker decision from the Fourth Department, while Steve Sorrells addresses two District Court non-asbestos air-quality claims, the first being a claim by flight attendants about toxic fumes on airplanes, and the second involving a claimed defective ventilator.
And now for this month’s dad joke:
What did the beach say to the tide?
Long time, no sea.
V. Christopher Potenza ■ Member
Hurwitz Fine P.C.
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Toxic Torts, Asbestos, and Lead Paint
By: Mark S. Nemeth
In Nemeth v. Whittaker, Clark, & Daniels, Inc., 2022 NY Slip Op 02769 (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 434,438 (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).”
By: Michael J. Williams
Last month, we wrote of the newly enacted Adult Survivors Act (S.66A/A.648A) and the restorative justice it would provide to any adult victim of sexual abuse in New York’s history. Plaintiffs were granted six months to prepare their cases before a one-year window of opportunity opened to file without regard to statutes of limitations. Since businesses have surely begun preparing themselves for this litigation (and if you forgot, please consider this your reminder), today’s case concerns a slightly different issue: potential exposure resulting from your business absorbing the assets of another against whom liability would have been proper.
Dutton v. Young Men’s Christian Association of Buffalo Niagara, --- N.Y.3d ---, 2022 WL 2382155, 2022 N.Y. Slip Op. 04238 (4th Dept. July 1, 2022)
In Dutton, the plaintiff alleged sexual abuse against an employee of YMCA Niagara Falls which had allegedly merged with defendant YMCA Buffalo. YMCA Niagara Falls underwent judicial dissolution under Not-For-Profit Corporation Law sec. 1404(d) with its assets falling to the National Council of YMCAs. The National Council in turn transferred those assets to YMCA Buffalo. Supreme Court held that the intermediary entity precluded plaintiffs from relying on the de facto merger doctrine as a matter of law based on YMCA Niagara Falls never directly transacting with YMCA Buffalo.
The Fourth Department, however, reversed. Plaintiff alleged YMCA Buffalo had absorbed YMCA Niagara Falls’ facilities and branches, with continuity of management, personnel, physical location, assets, and general business operations. Additionally, YMCA Niagara’s judicial dissolution was expressly premised on the National Council transitioning its assets to YMCA Buffalo to continue providing services to the region. Holding that de facto merger is a common law, equitable doctrine, the Fourth Department found it meritorious under these facts despite limitations in the Not-For-Profit Corporation Law.
Dutton recognizes the ongoing refinement of law governing successor liability in the Child Victims Act context. As the Adult Survivors Act will create even greater fact-intensive complexities as to successor liability in the business, educational, religious and charitable environments, current management would be well served to identify and preserve those records necessary for their defense regardless of how long ago a merger, acquisition or other absorption of another entity may have occurred.
By: Jesse L. Siegel
This month’s case is from the Fourth Department and deals with a claim of a manufacturing/design defect involving a Reebok shoe. When I think of Reebok, the two most influential athletes in terms of sponsorship that come to mind are Shaquille O’Neal and Allen Iverson. Did you know that Allen Iverson has a trust fund with Reebok in the amount of $32 million, but he cannot access said trust fund until 2030? Don’t feel so bad for the Answer; his lifetime deal with Reebok still pays him $800,000 annually.
Turning to this early July decision, the Court upheld the denial of summary judgment by the lower court, sending a case to a jury when a battle of the experts ensues from a sneaker marketed as purposefully unstable.
07/08/2022 Mancuso v. Reebok Intl., Ltd
Appellate Division, Fourth Department
Summary judgment denied to shoe company as plaintiff’s expert raised triable issues of fact as to whether shoe was unstable and feasibility of making shoe safer.
Plaintiff fell while walking down stairs in her home. At the time of her fall, plaintiff was wearing "Reebok EasyTone" shoes designed, manufactured, assembled or distributed by defendants. Plaintiff asserted causes of action for negligence, strict products liability predicated on defects in design and manufacture, and breach of express and implied warranties. Defendants moved for summary judgment dismissing the complaint, and the Supreme Court denied the motion. Reebok appealed.
The Appellate Division, Fourth Department found that defendants met their burden with respect to strict products liability. The burden then shifted to plaintiff to raise an issue of fact by submitting evidence of a specific flaw in the product, or circumstantial evidence that the product did not perform as intended excluding all causes for the product's failure not attributable to defendant.
Plaintiff could not prove the latter, so the only issue on appeal was whether plaintiff submitted sufficient evidence to raise a triable question of fact regarding a specific flaw in the shoe. Plaintiff's expert opined that the shoe was dangerous, described why it was dangerous, explained how it could be made safer, and concluded that it was feasible to do so. As a result, the Appellate Division, Fourth Department upheld the lower court’s decision, indicating that “it is usually for the jury to make the required risk-utility analysis".
An interesting aside, Reebok acknowledged that it intentionally designed the shoe to be unstable in an attempt to provide toning benefits to users. The fact that the shoe was designed to be unstable is evidence, albeit not conclusive, that the shoe is actually unstable. The Federal Trade Commission later determined Reebok engaged in false advertising by claiming that the shoe had toning benefits, though that did not in and of itself establish that the shoe was actually stable. Reebok paid $25 million to consumers in a 2011 settlement due to the strengthening and toning claims that ultimately had no substance.
I am writing this article from my hotel room in Chicago, Illinois, as I am attending a Defense Counsel Panel Seminar presented by a prominent insurance company. After a fantastic first day of programming, the day ended with a spectacular cruise around the Windy City.
I have always enjoyed my many visits to Chicago. Chicago is the third largest city in the United States with a population of nearly three million people. In my last, pre-Covid visit to Chicago, I was finally able to check off my bucket list of seeing a Cubs game at Wrigley Field. In the early days of Cable TV, WGN was a staple to our station package. From Bozo the Clown and the Chicago Cubs, the City of Chicago has been with me from an early age.
One of my first trips with my wife was a weekend in Chicago. I have great memories of our welcoming cocktail at The Signature Lounge on the 96th Floor at the former John Hancock Building. We also discovered the greatness of the Steppenwolf Theater.
The first of two product liability cases addressed this month pertains to air travel and the manufacturing of airplanes and cabin air qualities. The second case involves a different type of air quality through the manufacturing of a ventilator. The common feature in both of the cases involve the sufficiency of allegations contained within the complaint to state a product liability of cause of action.
Vuksanovich v. Airbus Americas, Inc.
United States District Court, Southern District of New York (June 23, 2022)
The plaintiffs in this consolidated action are former JetBlue flight attendants who brought product liability actions against the airplane manufacturers (asserting strict products liability, negligence and breach of warranty) for injuries purportedly sustained as a result of prolonged exposure to toxic fumes in the passenger cabins. According to the plaintiffs, the alleged defect concerning the airplanes bleed air system that consists of a network of ducts, valves, and regulators that draws compressed air from an aircraft's engine and pumps it directly into the passenger cabin. Plaintiffs contend that contaminants (such as carbon monoxide and carbon dioxide, jet engine oil, hydraulic fluid, and deicing fluids) would infiltrate the cabin. In lieu of answering, the defendant manufacturers sought dismissal under Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiffs' claims are time-barred and inadequately pleaded.
With regard to the timeliness of the actions, both of these actions were commenced in October, 2020, and subject to the three-year statute of limitations. In determining this this issue, the manner in which the allegations of injuries were alleged within their Complaints resulted in whether the Court determined the actions were timely commenced within the applicable statute of limitations.
Plaintiff Salvatore asserts that she "began experiencing serious illness," including "pain, difficulty, breathing, and worsening eyesight" in January, 2017. The Court notes that nowhere in her pleadings does she allege that the symptoms she experienced in January 2017 subsided and, instead, indicated her illness "progressively worsened throughout 2017." In contrast, plaintiff Vuksanovich does not allege that the symptoms she suffered prior to October 2017 "progressively worsened" over time. Instead, she asserts that her early symptoms abated and that she only discovered the permanent neurological condition for which she now sues within the limitations period. As a result, the Court dismissed the Salvatore action for failing to timely file and deemed the Vuksanovich action as timely with the indication that this dismissal motion may be renewed by defendants following discovery of the onset of the alleged condition.
Defendants also sought to dismiss the Vuksanovich action for state a product liability cause of action. To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Plaintiff Vuksanovich brings failure-to-warn claims on the basis that defendants failed to adequately warn users of their aircraft about the potential hazards associated with the bleed air system. In order to recover under a failure to warn theory, a claimant must show: [i] that a manufacturer has a duty to warn; [ii] against dangers resulting from foreseeable uses about which it knew or should have known; and [iii] that the failure to do so was the proximate cause of harm. The Court determined that this plaintiff adequately plead failure to warn claims against the defendant manufacturers.
Another claim asserted by plaintiff Vuksanovich included a design defect. To establish a design defect, a plaintiff must allege [i] that the product, as designed, posed a substantial likelihood of harm; [ii] that it was feasible for the manufacturer to design the product in a safer manner; and [iii] that the defective design was a substantial factor in causing plaintiff's injury. The Court determined that this plaintiff adequately plead design defect claims against the defendant manufacturers.
Warren v. Resmed Corp.
United States District Court, Southern District of New York (June 28, 2022)
Mr. Warren suffered from neurological condition prescribed a ventilator by his physician to provide non-invasive positive pressure ventilation, oxygen, and carbon dioxide removal. The ventilator used by Mr. Warren was manufactured by Resmed Corp. and designed and manufactured to activate an audible and visual alarm to alert the user or caretaker to a condition that requires immediate attention. Mr. Warren’s wife found him unresponsive and observed a gap or opening between the face mask of the ventilator and his face. This gap is also alleged to have impaired the functioning of the alarm on the ventilator. Mr. Warren died shortly after he was discovered by his wife.
In response to the complaint and lieu of providing an answer, the defendants move to dismiss the plaintiff's claims for failure to warn and breach of express warranty pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.
In alleging a failure to warn, plaintiffs alleged "upon information and belief” that the physician who prescribed the ventilator received and reviewed warnings and instructions from the defendants regarding the ventilator. The Court held that this allegation was insufficient to state a cause of action for failure to warn as it does not identify a single fact that supports the plaintiff's "belief" that the prescribing physician received the documents in question resulting in such allegation to be deemed by the Court as "wholly conclusory”.
Furthermore and with regard to plaintiff’s claim for breach of express warranty, the Court held that plaintiff’s allegations "upon information and belief" that Mr. Warren and his treating physician "received, read, and reviewed" the documents produced by the defendants. Plaintiff also alleges, "upon information and belief[,]" that the treating relied on the "express warranties stated [in the documents] prior to prescribing" the ventilator to Mr. Warren. As a result and in dismissing this claim, the Court held that the complaint is bereft of any facts "that would permit the inference that [the] Plaintiff actually read these [documents] and directly relied upon them when making the decision to utilize [the Defendants'] product."
As alternative relief in the event the Court was inclined to dismiss these claims, plaintiff sought permission to amend the complaint. While the Court did not grant this alternative relief outright, the Judge permitted plaintiff’s counsel to make a further, separate application within 30 days to amend the complaint requiring plaintiff to include (1) a proposed second amended complaint and (2) a memorandum of law of no more than fifteen pages explaining how the second amended complaint would survive a comparable motion to dismiss brought by the defendants.
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