By Michael Hoenig - New York Law
Journal - May 11, 2015
On April 13, New York County Supreme Court Justice Barbara
Jaffe issued a bombshell ruling in one of many cases that are
part of a special docket called New York City Asbestos
Litigation (NYCAL). The decision and order in
Juni v. A.O. Smith Water Products1 set aside
a jury verdict totaling $11 million awarded against Ford Motor
Company in favor of a mesothelioma plaintiff, a motor vehicle
mechanic, who died in March 2014. Eight million dollars was
awarded by the jury for the decedent's pain and suffering from
symptom onset to death. Three million dollars was awarded for
loss of consortium. The Juni case was what remained out of three
different NYCAL cases that had been consolidated for trial
before Justice Jaffe. (The author's firm was involved in
defending one of the three consolidated cases.) 2
Jaffe's opinion enters the fray as a measured study of the
clash between experts' hypotheses, as opposed to accepted "good"
science. She exposes the tensions between what the experts
claimed and what New York's legal standards require in order to
admit reliable expert testimony. The result is a breathtaking
rejection of the single-fiber theory. Such claims are based on
the notion that a "single fiber" of any type of asbestos causes
disease cumulatively and, therefore, becomes a substantial
factor in causing the illness. Single-fiber advocacy has been
rejected by a growing number of appellate courts outside New
The Juni ruling has potential to be a major game changer in a
large swath of asbestos litigation. Before reporting on Justice
Jaffe's pivotal ruling, however, let's briefly provide some
background information for context.
Courts have long tried to manage asbestos dockets swollen
with claimants alleging they had asbestosis, lung cancer or
mesothelioma. A Rand Institute for Civil Justice study in 2005
observed that, through 2002, approximately 730,000 claims had
been filed. A Congressional Budget Office estimate in August
2005 posited that some 322,000 asbestos bodily injury cases were
pending in state and federal courts.4 Early asbestos
lawsuits targeted producers of asbestos and asbestos-containing
products, which numbered in the hundreds (in 1982, about 300
such companies). However, as these defendants fell in
bankruptcies, "waves" of new lawsuits spread to companies
farther removed from direct production, and are said recently to
number over 8,500 defendants. One well-known plaintiffs' lawyer
described the litigation as an "endless search for a solvent
The term "asbestos," derived from the Greek word meaning
"inextinguishable" (reflecting one of its principal
characteristics: fire resistance), is a popular generic
designation but, in reality, there are more than 30 different
minerals of fibrous structure whose physical properties vary.
However, only six principal minerals were deemed of substantial
economic value and these have widely divergent toxicities and
risk factors.6 Thus, for example, defect and
causation evidence regarding physical, chemical and
toxicological behavior of disease-causing "amphibole asbestos" (actinolite,
amosite, anthophyllite, crocidolite and tremolite) is not
applicable to so-called "serpentine asbestos" (chrysotile),
which was the dominant form of asbestos used in motor vehicle
brakes and in certain gaskets which defendants and scientists
argue is not harmful to brake workers.7
Indeed, epidemiological studies have reported findings
showing no increased risk of mesothelioma among auto mechanics,
a world-wide worker population one would expect to abundantly
reflect the disease if exposure to chrysotile were causal.
Examination of these studies finds no reliable evidence that
working in automotive repair with friction products causes
mesothelioma.8 Justice Jaffe's Juni decision mentions
21 such studies yielding no evidence of an increased risk of
developing an asbestos-related disease from brake workers'
exposure to chrysotile.9
Given the challenge posed by such generally accepted science,
certain plaintiffs' experts took to testifying on what has come
to be called the "any exposure" or "any fiber" or "single fiber"
theory of causation.10 In a Pennsylvania Supreme
Court appeal involving the reliability of the "any fiber"
causation theory, 11 distinguished scientists (none of whom
received funding from or testified as experts for any of the
parties in the case) filed an amicus curiae brief criticizing
the methodological errors committed by the "any exposure"
expert, among them: (1) eschewing the need to consider the dose
level of exposure and minimum threshold of fiber levels; (2) not
considering the physical, chemical and toxicological differences
among various types of asbestos and ignoring overwhelming
evidence that chrysotile asbestos "has far less, and maybe nil,
potential to cause lung cancer and mesothelioma than other
types"; (3) rejecting the generally accepted distinction between
general causation and specific causation and not even
establishing general causation for chrysotile asbestos; (4)
suggesting that the "every exposure" and "cumulative risk"
theories are generally accepted when they are not; and (5)
ignoring the large body of toxicological studies that show
chrysotile asbestos is not potent as a cancer-causing agent.11
In a nutshell, the facts in Juni were as follows: In
the 1960s, the decedent worked as a mechanic assisting with
brake repairs and replacing clutches on defendant's vehicles as
well as gaskets. This work involved the presence of dust.
Approximately 500 vehicles, mostly defendant's, were serviced at
one of the garages during Arthur Juni's tenure as a mechanic. In
the 1970s, Juni became a foreman, assisting with brake repairs,
gasket replacements and some clutch jobs. Juni also repaired his
own and his family's vehicles, twice changing the brakes.
Justice Jaffe analyzed plaintiff's expert testimony. She held
that the reliability of these opinions and the underlying
methodologies were governed by the admissibility standards
Parker v. Mobil Oil Corp.12 and
Cornell v. 360 W. 51st St. Realty.13
Accordingly, she analyzed each decision, specifying the salient
The basic rules seem simple enough. If "novel" scientific
evidence is involved, the court applies the Frye "general
acceptance" test to determine "whether the accepted techniques,
when properly performed, generate results accepted as reliable
within the scientific community generally."14 If the
answer is "no," the testimony has failed and must be precluded
or excluded. If the answer is "yes," the proponent of the novel
scientific testimony has survived the threshold test but still
has to get past the admissibility "gate." The proffered
scientific evidence must then meet a second, "foundational
This second admissibility standard applies to all expert
testimony, not just "novel" scientific evidence. In Parker,
the court said the Frye inquiry is "separate and distinct from
the admissibility question applied to all evidence—whether there
is a proper foundation—to determine whether the accepted methods
were appropriately employed in a particular case." Parker
declared that the focus moves "from the general reliability
concerns of Frye to the specific reliability of the procedures
followed to generate the evidence proffered and whether they
establish a foundation for the reception of evidence at trial."
Dr. Steven Markowitz, an internal and occupational medicine
physician, was presented to establish general causation. He
testified that all instances of asbestos exposure are "viewed as
a whole," cumulatively contributing to and causing the illness.
He stated that "every part of that exposure" acts as a
contributing factor. No exposure may be discounted, no matter
how remote the occurrence, as "it's the cumulative exposure that
matters." He opined that chrysotile fibers in friction products
(e.g., brakes, clutches and gaskets) can cause mesothelioma.15
Dr. Jacqueline Moline, an expert in internal, occupational and
environmental medicine, was plaintiff's expert on specific
causation. She testified that decedent's cumulative asbestos
exposures caused his mesothelioma; that it is not possible to
separate out or exclude any particular exposure; and that "all"
of Juni's asbestos exposures in and around work on brakes and
clutches constituted "substantial contributing factors in
causing his disease." Moline so opined "within a reasonable
degree of medical certainty." The court listed the items upon
which she based her opinion.16 As did Dr. Markowitz,
she said that all of Juni's exposures "contribute to his
cumulative exposure, whether it's from Company A or Company B."
But New York law required plaintiff to establish some
quantifiable level of exposure. Markowitz relied on industrial
hygiene studies, but those involved factory workers who produced
friction products from raw asbestos. These studies were not
probative. Indeed, Markowitz acknowledged that 21 of 22
epidemiological studies on workers with friction products
"yielded no evidence of an increased risk of developing an
Dr. Moline conceded that she did not know the amount, duration,
or frequency of plaintiff's exposures to products with
asbestos-containing dust sold or distributed by defendant. She
"could not and did not establish a dose-response relationship or
even minimally quantify Juni's exposures." Yet,
Parker requires such
quantification. The "every single exposure" argument is
"irreconcilable" with the well-recognized scientific requirement
that the "amount, duration and frequency of exposure" be
considered in assessing the sufficiency of an exposure to
increase the risk of developing a disease. As Parker
and Cornell made clear, "associations" are not enough.
Legal causation involves, not association, but rather "whether a
particular defendant may be held liable" for causing a person's
The Court of Appeals in Cornell held even if an expert
is using reliable principles and methods and is extrapolating
from reliable data, a court may still exclude the expert's
opinion if "there is simply too great an analytical gap between
the data and the opinion proffered." Thus, an opinion connected
to existing data "only by the ipse dixit of the expert" may be
excluded. The expert's conclusion, too, has to be reliable. The
court observed that the precept has sometimes been expressed in
terms of the "general foundation inquiry applicable to all
As noted by Justice Jaffe in Juni, the Court of Appeals
in Cornell held that government reports and public
health initiatives were irrelevant since "standards promulgated
by regulatory agencies as protective measures are inadequate to
demonstrate legal causation."19 Further, studies
cited by a plaintiff's expert that merely speak in terms of
"risk," "linkage" and "association" of a toxin with a disease do
not prove causation. Rather, such testimony departs from the
generally accepted methodology for evaluating epidemiological
evidence as reflected in the federal courts' Reference Manual on
Scientific Evidence.20 Cornell's expert also did not
reliably show specific causation. An expert must show that
plaintiff was exposed to sufficient "levels" of the toxin to
cause the illness. Thus, there must be evidence that plaintiff
was exposed to "levels of that agent that are shown to cause the
kind of harm that plaintiff claims to have suffered."
Accordingly, the experts' opinions flunked the Parker and
Cornell admissibility standards. This proof insufficiency
required the verdict to be set aside and judgment to be entered
for defendant. The court also observed that the Parker and
Cornell approach "conforms with case law in other jurisdictions"
that has rejected the so-called "cumulative exposure theory" and
its variant, the "each and every exposure theory."21Juni
is a major development and provides informative reading even for
non-asbestos scenarios involving scientific evidence.
1. 2015 N.Y. Misc. LEXIS 1168 (N.Y. Co. April 13, 2015). NYCAL
stands for New York City Asbestos Litigation, a special docket
with assigned judges to handle numerous asbestos cases. The
individual case captions set forth the title "In Re New York
City Asbestos Litigation," followed by the index number of the
case and the case name. The NYCAL docket is available via
2. The author's firm was involved in defending one of the three
consolidated cases, Fersch v. Amchem Products, which is
mentioned in Justice Jaffe's opinion in
Juni, Id., LEXIS at *2.
The case settled prior to the decision being issued.
3. See Juni, 2015 N.Y. Misc. LEXIS 1168, at *54-*60
(citing five law review articles and case law from Texas,
Virginia, Pennsylvania, Nevada, Georgia, the U.S. Court of
Appeals for the Sixth Circuit and others).
4. M.A. Behrens and W.L. Anderson, "The 'Any Exposure' Theory:
An Unsound Basis For Asbestos Causation and Expert Testimony,"
37 SW U. L. Rev. 479 n. 2 (2008) (providing website links).
5. Id. at 494-495.
Case v. Fibreboard Corp., 743 P.2d 1062, 1065 (Okla.
Sup. Ct. 1987);
Mullen v. Armstrong World Industries, 246 Cal. Rptr.
32, 36, 37 (Cal. App. 1988);
Celotex Corp. v. Copeland, 471 So. 2d 533, 538 (Fla.
Sup. Ct. 1985).
7. See Amicus Curiae Brief of 11 Noted Scientists filed in the
Supreme Court of Pennsylvania in
Betz v. Pneumo Abex, April 25, 2011, 2010 PA S. Ct.
Briefs 82010; 2011 PA S. Ct. Briefs Lexis 5, at *19-*21,
*29-*30, *34, *39-*40 (citing numerous studies and sources).
Betz was an appeal that raised the "any exposure" issue in
the context of a brake worker diagnosed with mesothelioma who
claimed exposure to chrysotile in brakes and clutches caused his
disease. The amici scientists included physicians, chemists,
geologists, physicists, epidemiologists and toxicologists. Their
amicus brief exposes the unreliability of plaintiff's experts'
methodologies and conclusions in the Betz litigation—claims
quite similar to those made by plaintiffs' experts in the Juni
trial. Additionally, as the scientists' brief recites,
toxicological data show that chrysotile is more rapidly removed
from the lung than amphibole asbestos. The physico-chemical
properties of chrysotile are altered by the application of the
mineral in brakes and clutches, thermal effects that reduce the
biological activity of chrysotile. As a mineral, chrysotile
degrades readily, losing magnesium in an acidic environment (the
lung and phagocytes are lower pH environments). Progressive
chemical degradation of the chrysotile fiber decreases its
ability to induce the tumor. Thus, there is a large difference
between the different asbestos types in producing mesothelioma.
Chrysotile is simply a different substance. Ibid.
8. Scientists' Amicus Curiae Brief, supra n. 7, LEXIS at
*30-*31, *39-*43, *47-*50.
9. Juni, 2015 N.Y. Misc. LEXIS 1168, at *44-*46.
10. See M.A. Behrens and W.L. Anderson, supra n. 4, 37 SW U. L.
Rev. at 480-483.
11. See Amicus Curiae Brief, n. 7 supra.
12. 7 N.Y. 3d 434 (2006).
13. Cornell v. 360 W. 51st St. Realty, 22 NY3d 762
14. The Frye test stems from Frye v. United States, 293
F. 1013 (D.C. Cir. 1923).
15. Juni, 2015 N.Y. Misc. LEXIS 1168, at *7-*11. The
court listed the sources upon which Markowitz based his opinion.
16. Id., LEXIS, at *12-*14 (such as clinical experience,
industrial hygiene studies, animal studies, human studies
showing an "association" between asbestos and mesothelioma, and
research organizations holding the same opinion).
17. Id., LEXIS at *44-*45.
18. Id., LEXIS at *47-*53.
19. Juni, LEXIS at *29-*30.
20. Juni, LEXIS at *30, citing and quoting from Federal
Courts' Reference Manual on Scientific Evidence, p. 566 (3d ed.
2011) ("an association does not necessarily mean that there is a
21. Id., LEXIS at *53-*60 (citing and quoting cases and listing
law review articles analyzing such case law).
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