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New York Judge Tosses Plaintiff’s Asbestos Causation Opinion

The times they are a-changin” wrote Bob Dylan in 1964.  Is New York City – recently dubbed by the American Tort Reform Foundation the Number 1 “Judicial Hellhole” in large part because of its pro-plaintiff bent in asbestos litigation – “a-changin”too?  First, Assembly Speaker Sheldon Silver was indicted for various allegedly bad judgments in connection with using state money to secure asbestos referrals and whopping settlement fees.  Next, the judge that supervised the New York County Asbestos Litigation (NYCAL) for almost a decade is out and a new judge takes over. And then this week, Judge Barbara Jaffe issued a potentially game-changing opinion in the NYCAL, striking an $11 million plaintiff’s verdict in a mesothelioma case.

On April 13, 2015, in Juni v. A.O. Smith Water Products, et al, Judge Jaffee rejected the “any exposure” or “cumulative exposure” theory of causation and detailed the expert evidence required to establish causation in New York toxic tort cases.  The plaintiff claimed he developed mesothelioma as a result of exposure to asbestos from dust created while working on asbestos containing brakes.  In rejecting Plaintiff’s expert evidence, the court confirmed that in New York, expert opinions on causation must establish (1) a plaintiff’s exposure to a toxin, (2) that the toxin is capable of causing the plaintiff’s illness, and (3) that the plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).  Parker v. Mobil Oil Corp., 7 NY3d 434 (2006); Cornell v. 360 W. 51st St. Realty, LLC, 22 NY3d 762 (2014).

This was the first ruling of its kind in the NYCAL both for the result reached, and the breath of the analysis.

The Court reviewed the plaintiff’s experts’ specific causation evidence and stated that, to establish specific causation under NY law under Parker and Cornell, the Plaintiff must provide some scientific “expression” to quantify his level of exposure to defendant’s product.  Evidence of “regular” work on brakes, clutches, and gaskets during plaintiff’s life, without any quantification, is insufficient to establish specific causation.  Similarly, evidence of visible asbestos dust at the plaintiff’s workplace is insufficient to establish specific causation.  This is especially true, in a case such as Juni, where the plaintiff failed to establish that the dust plaintiff was exposed to contained enough asbestos to cause illness.  The court found that, absent evidence of the amount, duration, or frequency of exposure to asbestos, the plaintiff could not, as a matter of law, establish that he was exposed to sufficient levels of asbestos from the defendant’s product to cause illness.

Judge Jaffee rejected the “any exposure” or “cumulative exposure” theory of causation

Judge Jaffee rejected the “any exposure” or “cumulative exposure” theory of causation in asbestos litigation – a theory that had been endorsed by numerous Judges in the NYCAL previously.  The court stated that application of the “any exposure” or “cumulative exposure” theory of causation was both directly contrary to New York law and irreconcilable with the scientific understanding that the risk of developing a disease increases or decreases depending on the amount, duration, and frequency of exposure.

The Juni opinion is a “first” in NY, and suggests that the NYCAL may indeed be a-changin’ too when it comes to the application of Parker and Cornell to asbestos cases.

© 2020 Schiff Hardin LLP


About this Author

Paul Scudato, LItigation Attorney, Schiff Hardin Law Firm

Paul A. Scrudato has been a member of Schiff Hardin's Executive Committee since 2015. He has tried numerous successful cases in the New York state and federal courts, and has also been lead trial counsel in federal and state actions in Illinois, Wisconsin, Maryland, Texas, Kentucky, Pennsylvania, and Indiana. Mr. Scrudato focuses his practice in complex litigation, with particular emphasis in product liability and government investigations. He serves as national trial counsel to multiple companies with high-profile litigation and trial exposure, and he has extensive...

Jill Berry, Litigation Attorney, Schiff Hardin, mass tort resolution lawyer, consumer products legal counsel, manufacturing law, trial representation

Jill Berry represents companies facing product liability and mass tort risk in some of the most dangerous jurisdictions for defendants in the United States.  Jill is skilled at negotiating complex agreements to control risk, and participates in joint defense initiatives that shape mass tort litigation dockets.  

Jill was a lead member of a team of lawyers that represented The Port Authority of New York and New Jersey in property damage and business loss litigation arising from the collapse of 7 World Trade Center, and in 10,000 lawsuits by first...