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Can Plaintiffs Pass the Parker Test?  The Future of Asbestos Litigation (NY)

October 18, 2018

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Back in 2017 in <a href="http://blog.wcmlaw.com/wp-content/uploads/2018/10/Of-Interest-NY-Court-of-Appeals-to-Weigh-Expert-Opinion-Linking-Asbestos.pdf"><em>Matter of New York City Asbestos Litigation</em></a>, the Appellate Division, First Department affirmed a trial court ruling that granted defendant Ford’s motion for to set aside the verdict.  And the Court of Appeals is set to rule on the admissibility of expert opinion in the underlying trial.

In the underlying action, decedent, Arthur Juni, passed away from mesothelioma allegedly caused by exposure to asbestos while he worked as an auto mechanic.  Decedent worked for non-party Orange &amp; Rockland Utilities from 1966 – 2009, servicing predominantly Ford vehicles.  He was issued a respirator in 1988, but was exposed to asbestos for approximately 25 years prior to that.

The jury awarded decedent’s wife and administratrix $3M for her loss and $8M to the estate for pain and suffering.  The judge granted Ford’s motion to set aside the verdict for failing to quantify decedent’s exposure levels or provide scientific expression of his exposure level with respect to Ford’s products.  To be clear, a plaintiff must prove not only that mesothelioma was caused by exposure to asbestos, but also that exposure was to sufficient levels of the toxin to have caused the illness.  Due to studies that found mechanics working on friction products found no increased risk of mesothelioma and studies showing that only 1% of dust blown out from brake drums is comprised of asbestos, the trial court was not convinced with plaintiff’s experts that the cumulative exposure was sufficient to link decedent’s mesothelioma to the exposure.

Relying on <em>Parker v. Mobil Oil Corp</em>. which addressed a claim of years of workplace exposure to benzene in gasoline as a cause of acute myelogenous leukemia, New York established a rule in toxic tort cases that, “an opinion on causation should set forth 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).”  In a fractured opinion, the Court agreed that there is consensus in the scientific community as to general causation, i.e., the link between asbestos and mesothelioma, but felt decedent failed in proving he was exposed to a sufficient amount of visible fibers to cause the disease, or, in the alternative, that a sufficient amount of toxins existed in the inhaled “visible dust” to cause the disease.

Given the complexity of the inquiry, the Court of Appeals heard oral arguments on decedent’s final appeal and is due to decide this issue within the next month.  Associate Justice Feinman who authored the dissent at the 1st Dept. level, and has recused himself, but should his brethren follow his lead, an asbestos plaintiff would have to show (1) regular use by an employer of the defendant’s asbestos-containing product, (2) plaintiff’s proximity to that product, and (3) exposure over an extended period of time.  Should the Court affirm the First Department, plaintiffs would have an additional hurdle in proving a specific relation to the exposure and the disease.  In the instant case, the Court found the experts to be too general, subjective and conclusory to find that decedent’s exposure was a significant factor in causing his cancer.  The battle of the experts in these cases have an unenviable job of using mathematical modeling or qualitative comparisons to recreate conditions, often decades after exposure and explaining their findings in lay terms for their non-medical audience in judges and jurors.  The Court of Appeals then must balance the danger of accepting correlation as causation and creating an insurmountable standard that would deprive plaintiffs of their day in court.  This decision could be a game changer in the future of asbestos litigation.  Thanks to Mehreen Hayat for her contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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