Supreme Court of New York, Appellate Division, First Department, July 19, 2022
On July 19, 2022, the First Department reversed three New York City Asbestos Litigation (“NYCAL”) decisions that denied summary judgment to Defendant, American Biltrite, Inc. (“ABI”), finding that the plaintiffs could not prove specific causation, and thus summary judgment to ABI was in fact warranted. In other words, the plaintiffs were unable able to show that exposure to ABI’s floor tiles were the cause or a contributing factor to the Plaintiffs’ alleged diseases. Applying the holdings of both Nemeth v Brenntag N. Am. and Parker v Mobil Oil Corp. to each case the First Department made it clear that a plaintiff needs to establish both general and specific causation.
The plaintiffs’ Decedent, Charles L. Grunert was allegedly diagnosed with lung cancer in 2016. The plaintiffs alleged that Mr. Grunert was exposed to asbestos from, among other things, his work with and around Amtico floor tiles manufactured by ABI. The plaintiffs alleged that Amtico was one of six brands of vinyl flooring that Mr. Grunert installed, but when asked “specifically and directly” during his deposition as to whether he had worked with Amtico tile, Mr. Grunert responded “no” or “I don’t know.” In support of its motion for summary judgment, ABI proffered an expert opinion that if the plaintiff had been exposed to asbestos from Amtico floor tiles, it was in “…amounts similar to those in ambient air, an exposure insufficient to cause cancer.” The court found that the plaintiffs offered no expert to counter this opinion from ABI’s expert, “and thus no question of fact was raised as to its validity.” As such, the court found that “[D]ecedent’s testimony concerning his exposure to ABI’s brand of tile is not sufficient to raise an issue of fact as to whether he was exposed to sufficient quantities of respirable asbestos from ABI’s product to cause his particular type of lung cancer.”
The plaintiffs’ Decedent, Italo Pomponi was allegedly diagnosed with lung cancer in 2014. Mr. Pomponi testified that he worked as close as five feet from flooring installers installing Amtico asbestos-containing floor tiles and sheet flooring at various jobsites throughout his career as an electrician. ABI moved for summary judgment, and in support of its motion, provided a report from Certified Industrial Hygienist, John W. Spencer, who opined that based on studies of airborne asbestos generated by cutting Amtico floor tiles, Mr. Pomponi’s work near Amtico tile installation would have exposed him to asbestos at “a level ‘indistinguishable from mot [sic] ambient measurements and below occupational exposure levels.’” The court found that this report established Mr. Pomponi was not exposed to levels of asbestos from Amtico product sufficient to contribute to his lung cancer. The court further found that the plaintiffs’ opposition failed to raise any issue of fact as to specific causation, and a showing that the plaintiff was exposed to dust generated from asbestos-containing products, coupled with expert testimony that dust “necessarily” contains enough asbestos to cause disease is not enough. The plaintiffs’ expert failed to “provide any correlation between the asbestos fiber levels to which plaintiff may have been exposed and the amount of inhaled asbestos that would have caused [his] lung cancer.”
Finally, the plaintiffs’ Decedent, Kenneth C. Dryer, also diagnosed with lung cancer, alleged that he was exposed to asbestos while cutting, manipulating, and breaking Amtico vinyl floor tiles to demonstrate their use to customers, when he worked as a salesperson in the flooring industry between 1967 and 1992. ABI moved for summary judgment, relying on a simulation study that found that Amtico floor tiles did not produce sufficient airborne asbestos beyond ambient or background levels to cause lung cancer. Based on this study, ABI’s experts concluded that Mr. Dryer’s lifetime exposure to respirable asbestos from vinyl tile was not sufficient to cause his cancer. While the plaintiffs argued that the simulation study upon which ABI’s expert relied was inadmissible, the court disagreed, noting that “simply quantifying the magnitudes of asbestos fibers released into the environment is insufficient,” but the methodology employed by the simulation study specifically provided for a calculation of fibers created in the breathable zones of the worker and helper. This, the court held, satisfied the requirements set forth by the Court of Appeals in Nemeth. The court further found that the plaintiffs failed to identify an issue of fact as to specific causation, and thus found that summary judgment to ABI was warranted.
Read the full decisions here…
Dyer v. American Bilrite
Grunert v. American Bilrite
Pomponi v. A.O. Smith Water