Complex Litigation

Ruling on Asbestos Experts
a Potential Game Changer

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 York.3

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.

Asbestos Claims

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 bystander."5

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

Juni Decision

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 articulated in Parker v. Mobil Oil Corp.12 and Cornell v. 360 W. 51st St. Realty.13 Accordingly, she analyzed each decision, specifying the salient principles.

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 reliability" inquiry.

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 asbestos-related disease."17

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 mesothelioma.18

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 evidence."

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.

Endnotes:

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 http://www.nycal.net/

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.

6. 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 (2014).

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 cause-effect relationship").

21. Id., LEXIS at *53-*60 (citing and quoting cases and listing law review articles analyzing such case law).

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