Judge Grants First Summary Judgment Based on Medical Causation in NY County Asbestos Litigation

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On January 31, 2019, Justice Manuel Mendez issued a decision granting the first summary judgment motion based on medical causation in a New York County Asbestos Litigation (“NYCAL”) case, Thomas Mantovi v. American Biltrite (Index No. 190055/2017). Judge Mendez held that “Amtico floor tiles did not produce breathable dust to a level sufficient to cause decedent’s mesothelioma.”

Amtico satisfied its burden on summary judgment by establishing that the plaintiff’s exposure to chrysotile asbestos from Amtico floor tiles “(1) is indistinguishable from most lifetime cumulative exposures to ambient asbestos, (2) well below a working lifetime at the OSHA and WHO permissible exposure limits and (3) also well below lifetime cumulative exposure at the USEPA clearance limit following an asbestos abatement action.” Marc Plisko and John Spencer, Amtico’s expert industrial hygienists, estimated that the plaintiff was exposed to 0.00078 f/cc-years as a bystander to the cutting of Amtico floor tile and 0.000013 f/cc-years as a bystander to the installation of Amtico tile, yielding a cumulative exposure of 0.00070 f/cc-years attributable to Amtico. Dr. David Weil, M.D., Amtico’s expert pulmonologist, cited epidemiological studies demonstrating that United States cities have ambient/background asbestos levels of 0.008 f/cc to 0.02 f/cc, which are not associated with an increased risk of developing mesothelioma. Dr. Weil ultimately concluded that the risk of developing mesothelioma only increases with exposure to significant amphibole fibers or a mixture of asbestos fiber types, which are not present in Amtico tiles. Dr. Stanley Geyer, M.D., Amtico’s expert pathologist, submitted further evidence that encapsulated chrysotile fibers, “firmly embedded in a resin matrix,” have a limited release into a worker’s breathing zone.

The plaintiff’s expert pathologist, Dr. David Zhang, M.D., Ph.D., failed to raise an issue of fact regarding medical causation. Namely, Dr. Zhang failed to reference any epidemiological studies demonstrating that encapsulated chrysotile fibers in Amtico tiles are capable of causing the plaintiff’s mesothelioma, and failed to distinguish between chrysotile and other asbestos fibers—e.g., amphibole fibers, which are exponentially more carcinogenic—to which the plaintiff may have been exposed. In simpler terms, Dr. Zhang failed to establish that the plaintiff was exposed to asbestos from Amtico tiles at levels sufficient to cause mesothelioma.

Justice Mendez’s decision relies upon the precedent established in Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006), which helds that toxic-tort plaintiffs must establish that (1) the toxins are capable of causing the plaintiff’s disease—i.e., general causation; and (2) the plaintiff was exposed to sufficient levels of the toxin from the defendant’s product to cause the plaintiff’s disease—i.e., specific causation. Prior to Justice Mendez’s decision in Mantovi, Justice Jaffe overturned a verdict in the plaintiff’s favor in an asbestos case due to the plaintiff’s failure to satisfy the requirements of Parker at trial. See In re New York City Asbestos Litigation [“Juni”], 48 Misc. 3d 460, 11 N.Y.S.3d 416 (2015).  Juni was upheld by New York’s Appellate Division, First Department, in 2017 and subsequently affirmed by the New York Court of Appeals on November 27, 2018. Justice Mendez has now exended the principles underlying Parker and Juni to allow defendants to establish summary judgment in asbestos cases.

Notably, Justice Mendez has denied prior summary judgment motions based on Parker and Juni, holding that the defendants failed to meet their prima facie burden. Therefore, any shortcomings in the plaintiffs’ expert evidence failed to warrant summary judgment for the defense. For the first time in NYCAL, Justice Mendez has now ruled that a defendant did satisfy its burden, permitting an analysis of the plaintiff’s evidentiary failures to support a decision granting summary judgment.

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