By Michael Hoenig
- New York Law Journal - March 10, 2017
An important decision issued on February 28 by the Appellate Division,
First Department, tees up a grand refresher course on New York's
legal standards for admitting expert testimony in toxic tort
litigation—in this case, a claim on behalf of a deceased auto
mechanic alleging that his mesothelioma was caused by asbestos
found in defendant Ford Motor Company's brakes, clutches and
gaskets. This new decision, Matter of New York City Asbestos
Litigation, 2017 NY Slip Op. 01523, 2017 N.Y. App. Div.
LEXIS 1505 (1st Dep't, Feb. 28, 2017), boasts an informative
opinion for the court by Justice David B. Saxe; a concurring
opinion by Justice Marcy L. Kahn reminding all that changes in
the state's jurisprudence on expert testimony must be made by
the Court of Appeals; and a robust dissenting opinion by Justice
Paul G. Feinman that adds some intellectual tension to the
expert reliability issues. This opinion bundle teaches important
lessons, and interested readers can learn about the big picture
of what's needed from experts. While the factual setting is an
asbestos case with which many lawyers may not identify, the
gleanings on experts' opinions transcend asbestos.
Mrs. Juni, the auto mechanic's widow, obtained an $11 million jury verdict
against Ford Motor. Eight million dollars was for the decedent's
pain and suffering from symptom onset to death. Three million
was for the widow's loss of consortium. However, on post-trial
motions, Supreme Court Judge Barbara Jaffe set aside the verdict
and entered judgment for defendant because plaintiff's expert
proofs were deemed insufficient under expert reliability
standards established in prior rulings by New York's highest
court. Juni v. A.O. Smith Water Products, 2015 N.Y.
Misc. LEXIS 1168 (N.Y. Co. April 13, 2015). The latter
precedents have come to be known as the Parker and
Cornell decisions and are considered to be a road map for
admitting or excluding experts' scientific opinions and
methodologies in New York state courts. Parker v. Mobil Oil,
7 N.Y. 3d 434 (2006); Cornell v. 360 W. 51st St. Realty,
22 N.Y. 3d 762 (2014).
The new appellate division decision affirms Judge Jaffe's post-trial
rulings and, therefore, is surely instructive for asbestos
litigators, particularly those urging or rejecting the "single
fiber" or "cumulative exposure" causation theory. In this
article, however, we should also try to refresh readers'
recollections about New York's evidentiary standards of expert
reliability and sufficiency beyond the asbestos narrative. After
all, Parker involved a gas station attendant's claim
that his leukemia was caused by exposure to benzene in gasoline.
And Cornell involved a claim by a Manhattan building
resident that her illness and physical ailments were caused by
exposure to mold and other harmful substances. Each of those
cases had the court weighing the reliability or sufficiency of
expert testimony proffered to prove causation. The Parker
and Cornell standards, in turn, loomed large in the
Juni asbestos ruling issued by the First Department on
Let's highlight what basically is needed from experts in order to pass
through New York's admissibility "gate" when it comes to proving
general and specific causation. 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." If the answer is
"no," the testimony has flunked and must be precluded or
excluded. If the answer is "yes," the proponent of the novel
scientific testimony has survived the threshold Frye
test but still has to get fully past the admissibility "gate."
The evidence must meet a second, "foundational reliability"
This second reliability 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."
In fact, in Parker, the court said that no particular "novel"
methodology was at issue for which "general acceptance" of the
scientific community needed to be determined. Instead, the
salient admissibility issue was foundational reliability—"an
inquiry … more akin to whether there is an appropriate
foundation for the expert's opinions." In other words, do the
methodologies "lead to a reliable result?" In Parker,
the court's rigorous reliability-policing review led to the
conclusion that, although the experts were highly qualified in
their respective fields, they "failed to demonstrate that
exposure to benzene as a component of gasoline caused [Mr.]
In the Cornell mold illness case, the expert's conclusions on
general and specific causation were deemed insufficient. The
court reiterated its established principles regarding Frye
and Parker standards for receiving expert evidence.
Although Frye focuses on principles and methodologies,
these are "not entirely distinct from one another." 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. Ipse dixit refers to an assertion made
but not proved. The expert's conclusion also has to be reliable.
The court reiterated that the precept has sometimes been
expressed in terms of the "general foundation inquiry applicable
to all evidence." The studies cited by plaintiff's expert in
Cornell merely spoke in terms of "risk," "linkage" and
"association"—"not causation." Indeed, plaintiff's expert
repeatedly equated association with causation. He thereby
departed from the generally accepted methodology for evaluating
epidemiological evidence as reflected in the Federal Courts'
Reference Manual on Scientific Evidence.
Further, even "assuming" that Cornell's expert demonstrated enough to show
general causation, he did not reliably show the necessary proof
of specific causation. As Parker explains, an opinion
on causation should set forth not only a plaintiff's exposure to
a toxin and that the toxin is capable of causing the particular
illness (general causation) but also that plaintiff was "exposed
to sufficient levels" of the toxin to cause the illness
(specific causation). 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."
Back now to the new appellate division decision holding that the asbestos
experts flunked admissibility requisites. Justice Saxe's opinion
for the court in Juni tracks the Parker and
Cornell standards and additionally cites and quotes
from Sean R. v. BMW of N. Am., 26 N.Y. 3d 801 (2016),
where the Court of Appeals "succinctly reiterated" the standard
of proof required in toxic tort cases. Plaintiff in BMW
claimed that her child's mental and physical disabilities were
caused in utero by exposure to unleaded gasoline odors
attributable to a defective gas hose in the mother's car. The
expert proofs were held insufficient.
Justice Saxe observed that the fact that asbestos has been linked to
mesothelioma "is not enough for a determination of liability
against a particular defendant; a causation expert must still
establish that the plaintiff was exposed to sufficient levels of
the toxin from the defendant's products to have caused his
disease." Even if it is not possible to quantify a plaintiff's
exposure, "causation from exposure to toxins in a defendant's
product must be established through some scientific method … ."
The plaintiff's evidence here was insufficient because "it failed to
establish that the decedent's mesothelioma was a result of his
exposure to a sufficient quantity of asbestos in friction
products sold or distributed by defendant Ford Motor Company."
The experts effectively testified only in terms of an increased
risk and association between asbestos and mesothelioma but
failed to quantify the decedent's exposure levels or otherwise
provide "any scientific expression of his exposure level with
respect to Ford's products." The experts' broad conclusions on
causation "lacked a sufficient foundation, and were therefore
legally insufficient" to establish that Juni's exposure to
asbestos in Ford products was a significant contributing factor
in causing Juni's mesothelioma.
Justice Paul G. Feinman's spirited dissenting opinion observed that New
York's highest court has not specifically addressed the
sufficiency of proof needed to establish causation in an
asbestos claim. He emphasized a "consensus from the medical and
scientific communities" that even low doses of asbestos exposure
can cause mesothelioma. Justice Saxe, however, disagreed that
any such consensus entitles a plaintiff to be awarded judgment
"by merely establishing some exposure to a product containing
any amount of asbestos," contrary to the standards set by
Parker and Cornell. Justice Marcy L. Kahn's
concurring opinion viewed the dissent as urging an "exception to
the settled rule of Parker." Any such change has to be
made by the court that forged Parker and Cornell,
the Court of Appeals. The tension inhering in the opinions
actually makes for interesting reading.
The new First Department decision is certainly relevant for
asbestos litigators. But even those uninterested in asbestos
imbroglios should not ignore the decision. It is a great
refresher course on the New York law of expert reliability and
the need for sufficient proof of general and specific causation.
This column has taken that approach and has highlighted the
Parker and Cornell requisites in light of the
bigger litigation picture. The bottom lines: Judicial "gatekeeping"
of experts is (or should be) vigorous; reliability standards
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