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FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/03/2023
EXHIBIT GG
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/03/2023
- 2020-0308 6
FILED : APPELLATE DIVISION 1ST DEPT 07 /19/2022 10 : 21 AM)
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Eppellate Bibigion, jfirst Jubittal Bepartment
Gische, J.P., Mazzarelli, Oing, González, JJ.
13739 KENNETH J. DYER, as Administrator for the Index No. 190039/17
Estate of KENNETH C. DYER, Case No. 2020-o3086
Plaintiff-Respondent,
-against-
AMCHEM PRODUCTS INC. 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 (Manuel J. Mendez, J.), entered on or
about December 3, 2019, 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), seeks summary judgment on the issue of
causation in this asbestos exposure litigation. For reasons more fully discussed herein,
we hold that ABI made out a prima facie case that during his lifetime, plaintiff was not
exposed to sufficient quantities of respirable asbestos from ABI's product to cause his
particular lung cancer. More particularly, ABI established that any respirable asbestos
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
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emitted when its product was cut, scored or manipulated was not enough to raise the
risk of contracting lung cancer beyond the existing risk of contracting the disease in the
general environment. In opposition plaintiff failed to raise an issue of fact whether the
quantities of respirable asbestos that were emitted by ABI's product or that he ingested
due to his exposure were sufficient to cause lung cancer.
ABI is the manufacturer of Amtico, asbestos-containing vinyl floor tiles.
Plaintiff's decedent, Kenneth C. Dyer, who died from lung cancer in 2019, claimed that
his disease was, in part, caused by his exposure to asbestos while employed as a
salesperson in the flooring industry between 1967 and 1992. He claimed that when he
cut, manipulated, and broke vinyl floor tiles to demonstrate their use to customers, the
tiles emitted respirable asbestos-containing dust.
As relevant here, ABI had the burden to tender sufficient evidence to
demonstrate the absence of any material issues of fact as to causation (Matter of New
York City Asbestosis Litig., 33 NY3d 20, 25-26 [2019]). Once this burden was met, it
would fall to plaintiff to produce evidentiary proof, in admissible form, establishing that
there were disputed material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320,
324 [1986]). ABI could not meet its prima facie burden by merely pointing to gaps or
deficits in plaintiff's case (Koulermos v A.O. Smith Water Prods., 137 AD3d 575 [1st
Dept 2016]). Thus, ABI could not simply argue that plaintiff could not affirmatively
prove causation, but rather it had to affirmatively prove, as a matter of law, that there
was no causation.
Parker v Mobil Oil Corp. (7 NY3d 434, 448 [2006]) is the leading case on
causation in the context of toxic tort litigation. In Nemeth v. Brenntag N. Am.,
(_NY3d_, 2022 NY Slip Op o2769 [2022]), the Court of Appeals elaborated upon the
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application of Parker to asbestos exposure cases. Parker requires that an expert opinion
on causation set forth "a plaintiff's exposure to a toxin, that the toxin is capable of
causing a particular illness (general causation) and that plaintiff was exposed to
causation)"
sufficient levels of the toxin to cause the illness (specific (Parker, 7 NY3d at
448). In Nemeth, the Court of Appeals, while recognizing its conclusion in Parker that
precise quantification of exposure to a toxin is not always required, stated that causation
nonetheless requires plaintiff to provide proof of "sufficient exposure to a substance to
effect"
cause the claimed adverse health (Nemeth, 2022 Slip Op o2769 at *1, quoting
Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762, 784 [2014]). This proof must come
from expert testimony that relies on generally accepted principles and methodologies
(id.). The Court of Appeals has also held that even where an expert opinion is based on
reliable principles and methods, it may be excluded "if there is too great an analytical
proffered"
gap between the data and the opinion (Nemeth at *1, quoting Cornell, 22
NY3d at 781). The sufficiency of an expert opinion on causation in toxic tort litigation
be determined as a matter of law (Nemeth at *3)·¹
may
ABI argues that there is neither general nor specific causation to support
plaintiff's claim. Because plaintiff's claim is viable only if there is both general and
specific causation, ABI need only establish that one or the other is lacking to succeed on
its motion.
There seems to be no real dispute that exposure to friable asbestos can cause lung
cancer. There also appears to be no dispute that asbestos fibers in vinyl tiles are tightly
bound in a matrix and that fibers primarily become airborne only when those tiles are
1 In after a jury returned a verdict for the plaintiff, the Court of Appeals because the
Nemeth, reversed,
plaintiff's expert, as a matter of law, did not establish causation. The Nemeth Court grounded its
conclusion on legal sufficiency, and not weight of the evidence (Nemethat*1).
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scored, cut or otherwise manipulated. Relying on a simulation study conducted by
Environmental Profiles, Inc. in 2007 (2007 EPI study), ABI argues that the cutting,
scoring and/or disruption of Amtico floor tile does not produce sufficient airborne
asbestos beyond ambient or background asbestos already present in the environment to
cause lung cancer. Using the same study, and based on the decedent's deposition
testimony, ABI's experts calculated that the lifetime exposure to respirable asbestos
from vinyl tile was not sufficient to cause his lung cancer.
The 2007 EPI study was conducted by John W. Spencer, a certified industrial
hygienist. It involved a worker and a helper who cut, scored/snapped Amtico tiles in an
"shift."
isolation test chamber, simulating an eight-hour Air sample cassettes were
attached to the worker and the helper in each of their breathing zones. The fibers
collected at the conclusion of the eight-hour study were reportedly less than 0.00044
f/cc (fibers per cubic centimeter). Based upon the results of the 2007 EPI study and
their review of other materials, publications and decedent's deposition, ABI's experts
concluded that the decedent's time weighted average exposure to chrysotile asbestos
was below the OSHA eight-hour permissible exposure limit (PEL) of 0.1 f/cc, and also
indistinguishable from 0.00000033 f/ce the lifetime cumulative exposure that the
general public is exposed to in the ambient air that we all breathe.
The 2007 EPI study establishes ABI's prima facie case as to specific causation.
The data collected in the 2007 EPI study shows that the levels of respirable asbestos
emitted from the vinyl tiles did not exceed ambient levels. Consequently, ABI's experts
concluded that whatever asbestos the decedent was exposed to from ABI's products
during his lifetime did not elevate the risk of his contracting lung cancer above the
general risk of contracting the disease from the environment. We find that this
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conclusion is supported by the data ABI provided and is sufficient to satisfy ABI's prima
facie burden.2
Plaintiff argues that ABI failed to make out a prima facie case for summary
judgment because the 2007 EPI study is inadmissible as a matter of law. We disagree. In
Nemeth, the Court held that the simulation study proffered by the plaintiff at trial was
insufficient as a matter of law because it did not account for respirable asbestos fibers.3
The Court of Appeals did not hold that simulation studies are per se inadmissible. In
fact, the Court suggested that had a different test model been used by the plaintiff, it
might have provided a permissible simulation of the exposure alleged (Nemeth at *2).
What Ne meth requires, however, is that in asbestos cases, exposure simulation studies
must account for the amount of respirable asbestos fibers released from the toxic
product ( Nemeth at *2). Simply quantifying the magnitudes of asbestos fibers released
into the environment is insufficient. The methodology employed in the 2007 EPI study
provides for the placement of the air cassettes specifically designed to capture asbestos
fibers created by the simulated activity in the breathable zones of the participating
worker and helper. This model satisfies the requirements of Nemeth. We also reject
2 ABI's other evidence as to causation, is insufficient to support its prima facie burden.
however,
The fact that the decedent was never diagnosed with asbestosis does not establish that his lung cancer was
not caused
by exposure to asbestos, but was caused solely by smoking. There is a body of scientific studies,
some of which are referenced by ABI's own experts, supporting a conclusion that asbestosis is not a
necessary predicate diagnosis for asbestos-caused lung cancer. There is additional scientific literature that
smoking and asbestos exposure are additive factors, increasing the risk of lung cancer when both factors
are present.
"safety"
ABI's reliance on the levels established by the Occupational Safety and Health
Administration fares no better. In Parker and then again in Nemeth, the Court of Appeals rejected the use
of OSHA regulations as setting a safety threshold for causation purposes ( Nemeth at *2).
3 Although the expert in Nemeth testified that it placed filters inside a glove box to simulate "*reathing
zones'"
the Court of Appeals rejected the expert's characterization of the test (Nemeth at *1). The
methodology in Nemeth differed from the simulation studies relied upon by both defendant and plaintiff
in this case. Here, in each of the simulation studies proffered by each side, test participants were placed
into an isolation chamber and air-collecting cassettes were placed on their bodies near their breathing
zones.
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plaintiff's argument that there was no showing by defendant that the principles and
methodologies used in the 2007 EPI study were generally accepted in the relevant
scientific community.
Plaintiff otherwise failed to identify an issue of fact as to specific causation.
Plaintiff's primary expert, Dr. Mark Ellis Ginsburg, MD, relied on medical journals,
various scientific data and guidelines set by the Environmental Protection Agency and
National Institute for Occupational for Safety and Health. He also relied on simulation
studies performed by Materials Analytical Services, Inc. (MAS). One study, Scoring and
Snapping Asbestos Containing Floor Tile Work Practice Studg (June 2002), which
involved the scoring, snapping and cutting of vinyl tile, showed airborne asbestos
concentrations as high as 0.26 f/cc when vinyl floor tile was installed and even higher
(o.27 f/cc) when vinyl floor tile was disrupted by being cut, sanded or snapped. Another
MAS study relied on by Dr. Ginsburg, Repacking ofAsbestos Containing Floor Tile: A
Work Practice Studg (May 2004), showed an average airborne asbestos exposure of
0.96 f/cc when floor tile was dropped and repacked. These simulation studies, like the
2007 EPI study, provide a methodology intended to capture and count respirable
airborne asbestos fibers within a person's breathable zone. The data from these studies
supports plaintiff's expert's conclusion that asbestos fiber concentrations during
repacking and other disruption of the vinyl floor tile were higher than ambient levels.
Dr. Ginsburg generally concludes that "[t]here is no safe minimum level of
cancer"
exposure to asbestos with respect to lung and that "manipulation of asbestos
workers'
containing floor tiles can result in release of asbestos fibers into the
exposure."
environment that are exponentially greater than the ambient level of He also
dust"
states that the asbestos process releases "visible and that such dust is "certainly in
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concentration."
dangerous However, Nemeth holds that such broad pronouncements
and conclusions will not satisfy a plaintiff's causation burden, which is to show the levels
of asbestos that the plaintiff was exposed to and that the levels are known to cause lung
cancer (Nemeth at *3). Likewise, to the extent Dr. Ginsberg's conclusions are based
upon the presence of visible dust emanating from an asbestos-containing product, this
theory fails to satisfy a plaintiff's burden on causation in asbestos cases (Nemeth at *2 n
3 [rejecting this approach, set forth in Lustenring v AC&S, Inc., 13 AD3d 69 (1st Dept
2004), as "incorrect"]).
The dispute based upon the competing simulation studies about whether the
decedent was exposed to asbestos in an amount that exceeded ambient levels typically
found in non-occupational settings is not enough to avoid summary judgment. Nemeth
"'excessive'" more'"
holds that simply showing that exposures to a toxin were or "'far a
certain threshold (ambient) is not enough (Nemeth at *1). As pronounced by Nemeth,
impossible,'"
plaintiff had the "'difficult, if not task of establishing that his decedent had
a sufficient exposure to asbestos to have caused his lung cancer (Nemeth at *1, *3). Dr.
Ginsburg does not provide any reliable correlation between the presence of asbestos
fiber concentrations found in the studies and how much in haled asbestos would have
caused lung cancer generally and the decedent's lung cancer in particular. We do not
know how much higher than the ambient levels the toxin concentration needs to be to
trigger disease. Dr. Ginsburg's reliance on a joint compound study as a comparable to
prove causation is also insufficient. Regardless of the conclusions reached in that study,
it is not comparable, because the respirable asbestos samples relied upon were as high
as 59.0 f/cc, which far exceeds what plaintiff proved the decedent was exposed to
(Nemeth at *2 ["comparisons should be specific enough to show plaintiff's exposure
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level to those of other subjects"]). Under these circumstances, plaintiff has failed to raise
a factual issue as to specific causation under the standard set forth in Parker and
Nemeth.
In view of the foregoing, we need not reach the other issues raised by defendant.
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
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