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August 12, 2015

Counsel Failed To Establish Causation In Toxic Tort Matter

On April 13, 2015, New York County Supreme Court Justice Barbara Jaffe, overturned a verdict against Ford Motor Company based upon insufficiency of evidence. Specifically, she found that Plaintiff, represented by Weitz & Luxenberg, failed to establish either general or specific causation through the testimony of their experts, Steven Markowitz, MD (a board-certified physician specializing in internal and occupational medicine) and Dr. Jaqueline Moline (an expert in internal medicine and occupational and environmental medicine). The plaintiff in that case, Mr. Juni, was a lifelong mechanic and claimed exposure to brakes, clutches and gaskets manufactured by Ford.

Justice Jaffe first clarified that the controlling precedent for establishing causation in a toxic tort case is set forth by the New York Court of Appeals decisions in Parker v. Mobile Oil Corp. 7 NY3d 434 (2006) and Cornell v 360 W. 51 St. Realty, LLC, 22 NY3d 762 (2014). In Parker, the plaintiff worked as a gas station attendant and claimed his acute myelogenous leukemia was caused by his exposure to benzene from pumping gas. While it may be difficult to quantify a numerical value, the Court of Appeals reiterated that an expert opinion on causation must set forth "a plaintiff's exposure to a toxin, that the toxin is capable of causing a particular illness (general causation) and that the plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)" (citations omitted).

In Cornell, the plaintiff claimed that she was exposed to mold in her apartment and therefore developed various physical injuries. The trial court dismissed the complaint finding that the plaintiff failed to prove either general or specific causation. The Appellate Division reversed and found that the plaintiff's experts provided sufficient testimony relating plaintiff's illness to the mold exposure and suggested that the Parker decision did not require actual exposure levels. The Court of Appeals reversed and found that the expert's testimony did not establish general causation, as the reports and studies on which he relied were expressed in terms of "risk," "linkage," and "association," not causation. The Court of Appeals further held that the plaintiff's expert made no effort to quantify Ms. Cornell's level of exposure to mold. "At a minimum, there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels that are known to cause the kind of harm that the plaintiff claims to have suffered" (citation omitted).

Using the framework set forth by the Court of Appeals in Parker and Cornell,  Judge Jaffe analyzed whether Dr. Markowitz's and Dr. Moline's expert opinions on causation sufficiently established that Mr. Juni's exposure to asbestos contained within products sold by Ford was capable of causing mesothelioma (general causation); and whether Mr. Juni was thereby exposed to sufficient levels of asbestos to cause his mesothelioma (specific causation). In finding Dr. Markowitz's causation testimony insufficient, Judge Jaffe pointed out that the industrial hygiene studies of mesothelioma in garage mechanics relied upon by Dr. Markowitz showed only an association (emphasis added) between the work and mesothelioma. Judge Jaffe held that an "association" is not causation. Judge Jaffe also held that absent knowledge of the amount, duration, or frequency of Juni's exposures to asbestos-containing dust from products sold by Ford, Dr. Moline did not establish a dose-response relationship or even minimally quantify Juni's exposures.

The Juni decision is significant as it highlights the requirement that some quantification of plaintiff's exposure is necessary for plaintiffs to prove causation. It is also significant as Justice Jaffe rejected both Drs. Markowitz's and Moline's opinions that no single exposure to asbestos can be discounted in evaluating whether an exposure contributed to causing plaintiff's disease. The Court held that this "each and every exposure" opinion 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."

If you require further information regarding the content of this Legal Alert, please contact either of the Co-Chairs of the Torts & Products Liability Defense Practice Area, Thomas J. Drury, at (716) 858-3845 or or Matthew J. Larkin, at (315) 425-2805 or, or the Chair of the Mass & Toxic Torts Practice Area, Carol G. Snider, at (716) 858-3782 or, or the author of this alert Heidi Brauer Ruchala, at (716) 858-3811 or


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