Supreme Court of New York, Appellate Division, Fourth Department
In this personal injury action, plaintiff Joseph Skrzynski alleged asbestos exposure from brakes and other related products while working at an automobile dealership. Skrzynski further claimed to have developed peritoneal mesothelioma because of the alleged asbestos exposure and ultimately initiated litigation by filing a complaint naming Ford Motor Company (FMC) and others as defendants.
Skrzynski’s complaint alleged, among other things, that FMC manufactured, distributed, or supplied the asbestos containing products, which had caused his exposure and resulting damages. FMC filed a motion for summary judgment upon the conclusion of discovery, and the plaintiffs opposed FMC’s dispositive motion. The Erie County Supreme Court granted in part and denied in part FMC’s motion for summary judgment.
This matter thereafter went to a jury trial with the plaintiff proceeding under a failure to warn theory against FMC. Following the trial, the jury returned a verdict finding, among other things, that the plaintiff was exposed to asbestos as a component of the defendant’s friction products, the defendant failed to exercise reasonable care in providing an adequate warning to the plaintiff of the hazards of exposure to asbestos fibers, and that such failure to adequately warn was a substantial contributing factor in causing his mesothelioma.
FMC subsequently moved, pursuant to CPLR 4404 (a), for judgment as a matter of law, a new trial based on evidentiary errors, and to set aside the verdict as against the weight of the evidence. The trial court denied the motion and judgment was entered in favor of the plaintiff and against FMC. An appeal followed and primarily contended the evidence presented at trial was legally insufficient to establish specific and general causation.
Addressing FMC’s contentions concerning the sufficiency of the trial evidence on the issue of causation, it is well established that, in cases involving exposure to asbestos or other toxins, “an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)” (Nemeth v Brenntag N. Am., 38 NY3d 336, 342-343 [2022], quoting Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006], rearg denied 8 NY3d 828 [2007]). “[I]t is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community” (Id. at 343, quoting Parker, 7 NY3d at 448). Indeed, “there may be several ways” for an expert to demonstrate causation, but “any method used must be ‘generally accepted as reliable in the scientific community” (Id., quoting Parker, 7 NY3d at 449). Here, the court initially concluded the trial evidence was legally sufficient to establish general causation. In that regard, the plaintiff called a professor of epidemiology and an environmental scientist, among other experts, to provide trial testimony. The professor testified that “chrysotile asbestos” causes mesothelioma based upon his review of studies and research at trial. The scientist, meanwhile, provided testimony regarding his testing of FMC’s brakes to assess their asbestos composition, whether asbestos fibers protrude from their surfaces, and how many asbestos fibers are released during sanding or cleanup. The scientist’s tests showed, inter alia, that FMC’s brakes contained between 25 percent to 50 percent chrysotile asbestos fibers and that handling FMC’s brakes created asbestos dust. This testimony, coupled together, sufficiently established the chrysotile asbestos from brakes can cause peritoneal mesothelioma.
The court next considered whether the evidence is sufficient to establish specific causation. To establish specific causation, the plaintiff was required to show that he “was exposed to sufficient levels of the toxin to cause” his alleged injuries; we note that “it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship” (Matter of Eighth Jud. Dist. Asbestos Litig., 187 AD3d 1623, 1623-1624 [4th Dept 2020]). In this context, the court similarly concluded the evidence was legally sufficient to establish specific causation. The court specifically noted the scientist’s testing of FMC’s products provided scientifically backed levels of the toxin to which the plaintiff may have been exposed. The scientist’s testing determined sanding released asbestos fibers at a rate of 0.8 to 2.2 fibers per cubic centimeter in the breathing zone of the worker, with lower rates farther away from the work. Cleaning up dust with compressed air resulted in a recorded exposure level of 0.9 fibers per cubic centimeter, and sweeping after brake work was done produced a recorded exposure level of 1.7 fibers per cubic centimeter. In addition, the plaintiff testified with respect to his actual exposure to FMC’s products, including being present for “over a thousand” brake jobs and that the garage was described as “dusty.” Notably, “it is also possible that more qualitative means could be used to express a plaintiff’s exposure, and comparison to the exposure levels of subjects of other studies could be helpful” where there is a specific comparison between a plaintiff and the other subjects (Parker, 7 NY3d at 449). To that end, the jury also heard evidence regarding a study that estimated exposure to garage workers from the professor concerning “total dose exposure” and a physician that testified – to a reasonable degree of medical certainty – that type of cumulative exposure was a substantial factor in causing the plaintiff’s mesothelioma. In view of the above, the Fourth Department affirmed the judgment entered in favor of the plaintiff and against FMC.
