Client Alert: New York Court Rejects "Any Exposure" Theory In Asbestos Litigation

On April 13, 2015, in Juni v. A.O. Smith Water Products, et al. , the Hon. Barbara Jaffe, supervising judge of the New York City Asbestos Litigation, issued an order setting aside an $11 million plaintiff's verdict in a mesothelioma case based on the insufficiency of the expert testimony supporting causation. The order provides a detailed analysis outlining the requirements for establishing causation in New York toxic tort cases and specifically rejects the "any exposure" or "cumulative exposure" theory of causation. The court's holding is consistent with those in a growing number of jurisdictions rejecting the "any exposure" theory and confirming that causation must be proven with evidence quantifying a plaintiff's dose of exposure to a defendant's product.

In Juni, Plaintiffs sued defendant Ford Motor Company ("Ford") and others alleging that asbestos from products for which they were responsible caused Arthur Juni ("Juni") to develop mesothelioma.   At trial, Plaintiffs' specific causation expert, Dr. Jacqueline Moline, testified that Juni's cumulative lifetime exposure to asbestos caused his mesothelioma and that it is not possible to separate out or exclude any particular exposure. In her opinion, "all" of Juni's occupational exposures were substantial contributing factors causing his disease.

Dr. Moline further opined that "visible dust is an important surrogate to show that someone has had a significant exposure" and that Juni's observation of visible dust when working with Ford's brakes, clutches and gaskets meant that asbestos was present at levels above the minimum capable of causing disease. Juni's exposure to Ford's products was also a substantial contributing factor because he regularly used them over his lifetime. After the jury rendered its verdict, Ford moved for an order dismissing the action and entering judgment in its favor arguing that the opinions of Plaintiffs' experts, including those of Moline, were inadmissible because they lacked adequate foundation.

In defining the applicable legal standard for analyzing the sufficiency of Dr. Moline's testimony, Judge Jaffe confirmed "the well established requirement" that expert causation opinion in toxic tort cases must set forth (1) a plaintiff's exposure to a toxin, (2) that the toxin is capable of causing the particular illness (general causation) 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).   The court also determined that, pursuant to these holdings, the pertinent inquiry is to determine whether expert causation testimony is supported by adequate foundation.

Applying this standard, Judge Jaffe held that Dr. Moline's testimony lacked foundation and was insufficient to establish that Juni's exposure to Ford's products constituted a significant contributing factor causing his mesothelioma. In particular, Moline failed to provide a "scientific expression" quantifying the dose of exposure. She had no actual data concerning the amount, duration, or frequency of the exposure and failed to implement any other method identified by the Court in Parker and Cornell to express Juni's exposure scientifically, such as estimating it through mathematical modeling or comparing Juni's exposures to those discussed in various studies she relied on. The court also stated that Juni's "regular" exposure to Ford's products, absent quantification, was insufficient.

Dr. Moline's testimony that visible dust equates with substantial exposure also failed to prove causation. This was true because Moline could not quantify the amount of asbestos in the dust and if that amount was capable of causing Juni's mesothelioma.  

The court further rejected the opinion that every single one of Juni's exposures constituted a significant contributing factor because all such exposures cumulatively cause the disease.   Judge Jaffe found this theory irreconcilable with the well-recognized scientific requirement that the amount, duration, and frequency of exposure be considered in assessing the sufficiency of an exposure in increasing the risk of developing a disease. The cumulative exposure theory thus avoids both the legal and scientific requirement of quantification and fails "to offer sufficient evidence that any specific exposure increases the risk of disease and is thus a significant contributing factor to causing the disease."

Finally, Judge Jaffe pointed out that her holding is consistent with recent case law from other jurisdictions addressing the sufficiency of the cumulative exposure theory in asbestos litigation. Indeed, several courts, including those in Louisiana, Texas, Virginia, Pennsylvania, Nevada, Georgia and the Sixth Circuit Court of Appeals have rejected this theory and require specific proof of exposure[1].

Parties defending asbestos and other toxic torts litigation should take heed of Juni and similar decisions and be prepared to thoroughly explore the grounds for an expert's causation opinion. An increasing number of courts may agree that such opinions are inadmissible if they are not supported by adequate scientific data establishing a dose response relationship or, at minimum, quantifying a plaintiff's exposure to a defendant's product.