On April 13, 2015, Justice Barbara Jaffe of the Supreme Court, New York County, issued a decision and order granting the motion by Ford Motor Company to set aside the verdict of $11 million in Juni v. A.O. Smith Water Products Co., an asbestos case. The jury awarded the plaintiff $8 million for pain and suffering and $3 million for loss of consortium. The jury apportioned 49 percent of the liability to Ford and found that Ford acted recklessly, thus making Ford jointly and severally liable for the entire amount of the verdict.
Justice Jaffe determined that the evidence was legally insufficient to establish that Mr. Juni’s exposure to asbestos from brakes, clutches or gaskets sold or distributed by Ford constituted a significant contributing factor in causing his mesothelioma. As a result, she found that there was no valid line of reasoning or permissible inference that could have led the jury to reach its result.
In a lengthy and well-reasoned decision, Justice Jaffe determined that the Court of Appeals decisions in Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006), and Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762 (2014), which addressed the sufficiency of evidence of causation in toxic tort cases, are the controlling precedents in determining whether the opinions of the plaintiff’s experts were sufficient to prove causation as a matter of law in all toxic tort cases, including asbestos cases. An expert opinion on causation must set forth a plaintiff’s exposure to a toxin and must establish general causation by demonstrating that the toxin is capable of causing the particular illness and specific causation by demonstrating that the plaintiff was exposed to sufficient levels of the toxin to cause the illness. Although an expert does not always have to quantify exposure levels precisely or use the dose-response relationship, the methods the expert uses to establish causation must be generally accepted in the scientific community.
Applying the Parker standard, Justice Jaffe found that the plaintiff offered insufficient evidence of general causation because Steven Markowitz, one of the plaintiff’s experts, failed to establish a causal connection between exposure to friction products and mesothelioma. She found that the plaintiff failed to prove specific causation because Jacqueline Moline, the plaintiff’s other expert, failed to provide a scientific dose expression of Mr. Juni’s exposure to asbestos from brakes, clutches or gaskets sold or distributed by Ford.
With respect to visible asbestos dust, Justice Jaffe determined that the plaintiff’s evidence was insufficient to prove that the dust to which Mr. Juni was exposed contained any asbestos or enough asbestos to cause his mesothelioma. Finally, Justice Jaffe determined that the “opinion that every single exposure constitutes a significant contributing factor because the exposures cumulatively cause the disease is irreconcilable with the well-recognized scientific requirement, acknowledged by Moline, 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.” Therefore, some quantification of exposure is necessary for a plaintiff to prove causation.
This decision, which is the first ruling in the New York City asbestos litigation (NYCAL) applying Parker, imposes the burden of proof on plaintiffs to quantify their exposures to asbestos. Attention will now be focused on other asbestos trial judges, and ultimately on the appellate courts, to see whether the standard of admissibility for expert evidence of causation in NYCAL will conform with the case law in numerous other jurisdictions.