NYCAL Issues Bombshell Decision, Ruling Exposure to Friction Products Is Incapable of Causing Mesothelioma and Rejecting the Cumulative Exposure Theory
(NYCAL, April 13, 2015)
By: Joseph J. Welter, Goldberg Segalla
In a decision that could change the landscape of NYCAL asbestos litigation in New York, Justice Barbara Jaffe issued a post-trial decision following an $11 million verdict against Ford, essentially precluding Drs. Steven Markowitz and Jacqueline Moline on Frye grounds because there is no established scientific connection between exposure to friction products and mesothelioma. Additionally, Justice Jaffe ruled that the plaintiff’s theory of cumulative exposure without quantifiable exposure is insufficient to establish legally sufficient asbestos exposure.
Justice Jaffe determined that the testimony of the plaintiff’s experts, Drs. Markowitz and Moline, failed to establish both general and specific causation between the plaintiff’s mesothelioma and friction products under the standards articulated by the New York Court of Appeals in Parker and Cornell. The court distinguished Lusternring, an earlier trial court decision that upheld a verdict against a gasket/packing manufacturer.
As for general causation, the court cited there are no epidemiological studies supporting a causal connection between exposure to the products at issue and mesothelioma. Dr. Markowitz admitted that 21 of 22 such studies “yielded no evidence of an increased risk of developing an asbestos-related disease.” Decision, at p. 30. “And, while the absence of an epidemiological study is not fatal to proving causation … here, the failure to offer in evidence any study to support Markowitz’s opinion must be considered with the 21 studies which … do not show” an increased risk.
As for specific causation, Dr. Moline failed to provide “a scientific expression of [plaintiff’s] exposure to asbestos from brakes, clutches, or gaskets sold or distributed by defendant, and therefore, plaintiffs failed to prove specific causation.” Id., at p. 32.
The court also addressed the plaintiff’s cumulative exposure theory (i.e., that every single exposure constitutes a significant contributing factor), and found that the plaintiff “fail[ed] to offer sufficient evidence that any specific exposure increases the risk of a disease and is thus a significant contributing factor to causing the disease.” Id. Here, the court relied on Parker and Cornell regarding the proof necessary to establish causation as a matter of law in a toxic tort case, and determined that the plaintiff’s theory that “cumulative exposure to asbestos, no matter how small and without any quantification, was a substantial contributing factor, was contrary to New York law.”