On December 10, 2020 a
Exhibit,Appendix
was filed
involving a dispute between
Patsy Young,
and
Aventis Inc.,
Avon Products, Inc.,
Block Drug Company, Inc.,
Block Drug Corporation,
Brenntag North America, Inc.,
Brenntag Specialties, Inc. F K A Mineral Pigment Solutions, Inc.,
Charles B. Chrystal Company, Inc.,
Chattem, Inc.,
Colgate-Palmolive Company,
Cyprus Amax Minerals Company,
Cyprus Mines Corporation,
Glaxosmithkline Llc (Sued Individually And As Successor-In-Interest To Block Drug Corporation, Successor-In-Interest To The Gold Bond Sterilizing Powder Company A K A The Gold Bond Company And As A Successor-In-Interest To Novartis Corporation And
Novartis Consumer Health Inc.),
Gsk Consumer Health, Inc. F K A Novartis Consumer Health Inc. F K A Ciba Self-Medication, Inc.,
Insight Pharmaceuticals Corporation, A Subsidiary Of Prestige Brands Holdings, Inc.,
Insight Pharmaceuticals Llc,
Macy'S Inc. F K A Federated Department Stores, Inc.,
Novartis Pharmaceuticals Corporation,
Prestige Brands Holdings, Inc.,
Prestige Consumer Healthcare Inc. F K A Prestige Brands, Inc.,
Sanofi-Aventis U.S. Llc,
Sanofi Us Services, Inc.,
Whittaker Clark & Daniels, Inc.,
for Torts - Asbestos
in the District Court of Erie County.
Preview
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 03/03/2023
EXHIBIT FF
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 03/03/2023
- 2020-046 90
FILED : APPELLATE DIVISION 1ST DEPT 07 /19/2022 10 : 25 AM)
NYSCEF DOC. NO. 17 §pme (gg of t$ Glate of OrbIVED NYSCEF : O7 / 19 / 2 0 2 2
Eppellate Bibigion, jfirst Jubittal Bepartment
Kern, J.P., Mazzarelli, Gesmer, González, Higgitt, JJ.
14982 EILEEN POMPONI, as Executrix for the Estate of Index No.190101/15
ITALO POMPONI etc., Case No. 2020-o4690
Plaintiff-Respondent,
-against-
A.O. SMITH WATER PRODUCTS CO. et al.,
Defendants,
AMERICAN BILTRITE INC.,
Defendant-Appellant.
Manning Gross + Massenburg, LLP, New York (Justin A. Reinhardt of counsel), for
appellant.
Weitz & Luxenberg, P.C., New York (Alani Golanski of counsel), for respondent.
Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about
November 2, 2020, which denied defendant American Biltrite Inc.'s motion for
summary judgment dismissing the complaint and all cross claims as against it,
unanimously reversed, on the law, without costs, and the motion granted. The Clerk is
directed to enter judgment accordingly.
Defendant American Biltrite, Inc. (ABI) is the manufacturer of Amtico vinyl floor
tile and sheet vinyl flooring that contained asbestos. Plaintiff's decedent, Italo Pompani,
was diagnosed with lung cancer in 2014, which led to his death in 2016. The complaint
alleges that decedent's exposure to asbestos products, including Amtico floor tiles,
contributed to the development of his lung cancer. At his deposition, decedent testified
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 03/03/2023
that, at various job sites during his career as an electrician, he worked as close as five
feet from flooring installers installing Amtico asbestos-containing floor tiles and sheet
vinyl flooring, which produced visible dust that he inhaled.
In asbestos exposure and other toxic tort cases, "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
causation)"
the toxin to cause the illness (specific (Parker v Mobil Oil Corp., 7 NY3d
434, 448 [2006];accord Nemeth v Brenntag N. Am., ____ NY3d ____, 2022 NY Slip Op
o2769, *1 [2022]). As to specific causation, "there must be evidence from which the
factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are
harm"
known to cause the [relevant] (Sean R. v BMW of N. Am., LLC, 26 NY3d 801,
808-809 [2016] [internal quotation marks omitted]).
Nonetheless, "because there are times that 'a plaintiff's exposure to a toxin will be
value,'
difficult or impossible to quantify by pinpointing an exact numerical 'it is not
always for a plaintiff to exposure levels or use the dose-
necessary quantify precisely
response relationship, provided that whatever methods an expert uses to establish
community'"
causation are generally accepted in the scientific (Nemeth, 2022 NY Slip
Op o2769, *1, quoting Parker, 7 NY3d at 447-448).
Plaintiff asserts that defendant's Amtico tiles contained chrysotile asbestos which
contributed to the development of decedent's ultimately fatal lung cancer. In its motion
for summary judgment, defendant established prima facie a lack of specific causation. In
particular, defendant submitted a report affirmed by industrial hygienist John W.
Spencer of Environmental Profiles, Inc. (EPI). Spencer relied on a 2007 EPI study of
airborne asbestos generated by cutting Amtico tiles. The study found an eight-hour
2
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 03/03/2023
weighted average airborne concentration level of less than .00044 fibers per cubic
centimer (f/cc). Based on that finding, Spencer calculated that decedent's work near
Amtico tile installations exposed him to a cumulative dose of .0000086 f/cc, a level
"indistinguishable from mot ambient measurements and below occupational exposure
levels."
This report establishes that decedent was not exposed to levels of asbestos from
its products sufficient to contribute to his lung cancer.
Plaintiff's opposition failed to raise any issue of fact as to specific causation. A
showing that the decedent "work[ed] in dust laden with asbestos generated from
asbestos"
products containing accompanied by "expert testimony that dust raised from
Iecessarily'
manipulating asbestos products contains enough asbestos to cause
mesothelioma"
is not enough (Nemeth at *2 n 3). Plaintiff's medical expert did point to
simulation studies measuring an average level of airborne asbestos as high as 0.27 f/cc
during the cutting, sanding, and snapping of asbestos-containing floor tile. He did not,
however, 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
decedent's lung cancer (see Nemeth at *3 ; Dyer v Amchem Prods. Inc., Appeal No.
3
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 03/03/2023
13739 [decided herewith]).
In light of our conclusion that plaintiff failed to raise a triable issue of fact as to
specific causation, we need not reach any other issue.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: July 19, 2022
.
Susanna Molina Rojas
Clerk of the Court
4
Preview
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 03/03/2023 EXHIBIT FF FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 03/03/2023 - 2020-046 90 FILED : APPELLATE DIVISION 1ST DEPT 07 /19/2022 10 : 25 AM) NYSCEF DOC. NO. 17 §pme (gg of t$ Glate of OrbIVED NYSCEF : O7 / 19 / 2 0 2 2 Eppellate Bibigion, jfirst Jubittal Bepartment Kern, J.P., Mazzarelli, Gesmer, González, Higgitt, JJ. 14982 EILEEN POMPONI, as Executrix for the Estate of Index No.190101/15 ITALO POMPONI etc., Case No. 2020-o4690 Plaintiff-Respondent, -against- A.O. SMITH WATER PRODUCTS CO. et al., Defendants, AMERICAN BILTRITE INC., Defendant-Appellant. Manning Gross + Massenburg, LLP, New York (Justin A. Reinhardt of counsel), for appellant. Weitz & Luxenberg, P.C., New York (Alani Golanski of counsel), for respondent. Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about November 2, 2020, which denied defendant American Biltrite Inc.'s motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly. Defendant American Biltrite, Inc. (ABI) is the manufacturer of Amtico vinyl floor tile and sheet vinyl flooring that contained asbestos. Plaintiff's decedent, Italo Pompani, was diagnosed with lung cancer in 2014, which led to his death in 2016. The complaint alleges that decedent's exposure to asbestos products, including Amtico floor tiles, contributed to the development of his lung cancer. At his deposition, decedent testified FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 03/03/2023 that, at various job sites during his career as an electrician, he worked as close as five feet from flooring installers installing Amtico asbestos-containing floor tiles and sheet vinyl flooring, which produced visible dust that he inhaled. In asbestos exposure and other toxic tort cases, "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 causation)" the toxin to cause the illness (specific (Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006];accord Nemeth v Brenntag N. Am., ____ NY3d ____, 2022 NY Slip Op o2769, *1 [2022]). As to specific causation, "there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are harm" known to cause the [relevant] (Sean R. v BMW of N. Am., LLC, 26 NY3d 801, 808-809 [2016] [internal quotation marks omitted]). Nonetheless, "because there are times that 'a plaintiff's exposure to a toxin will be value,' difficult or impossible to quantify by pinpointing an exact numerical 'it is not always for a plaintiff to exposure levels or use the dose- necessary quantify precisely response relationship, provided that whatever methods an expert uses to establish community'" causation are generally accepted in the scientific (Nemeth, 2022 NY Slip Op o2769, *1, quoting Parker, 7 NY3d at 447-448). Plaintiff asserts that defendant's Amtico tiles contained chrysotile asbestos which contributed to the development of decedent's ultimately fatal lung cancer. In its motion for summary judgment, defendant established prima facie a lack of specific causation. In particular, defendant submitted a report affirmed by industrial hygienist John W. Spencer of Environmental Profiles, Inc. (EPI). Spencer relied on a 2007 EPI study of airborne asbestos generated by cutting Amtico tiles. The study found an eight-hour 2 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 03/03/2023 weighted average airborne concentration level of less than .00044 fibers per cubic centimer (f/cc). Based on that finding, Spencer calculated that decedent's work near Amtico tile installations exposed him to a cumulative dose of .0000086 f/cc, a level "indistinguishable from mot ambient measurements and below occupational exposure levels." This report establishes that decedent was not exposed to levels of asbestos from its products sufficient to contribute to his lung cancer. Plaintiff's opposition failed to raise any issue of fact as to specific causation. A showing that the decedent "work[ed] in dust laden with asbestos generated from asbestos" products containing accompanied by "expert testimony that dust raised from Iecessarily' manipulating asbestos products contains enough asbestos to cause mesothelioma" is not enough (Nemeth at *2 n 3). Plaintiff's medical expert did point to simulation studies measuring an average level of airborne asbestos as high as 0.27 f/cc during the cutting, sanding, and snapping of asbestos-containing floor tile. He did not, however, 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 decedent's lung cancer (see Nemeth at *3 ; Dyer v Amchem Prods. Inc., Appeal No. 3 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 03/03/2023 13739 [decided herewith]). In light of our conclusion that plaintiff failed to raise a triable issue of fact as to specific causation, we need not reach any other issue. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: July 19, 2022 . Susanna Molina Rojas Clerk of the Court 4