Preview
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No. : 190280/2015
SHIRLEY JO GODFREY, Individually and as
Executrix of the Estate of ROBERT C. GODFREY,
Motion Sequence #006
deceased,
Hon. Manuel J. Mendez
Plaintiffs,
AFFIRMATION IN
v. OPPOSITION TO DEFENDANT
AMERICAN BILTRITE, INC.'S
A.O. SMITH WATER PRODUCTS, et al· MOTION FOR SUMMARY
JUDGMENT
Defendants.
Michael Macrides, an attorney duly admitted to practice before the Courts of the State of
New York, affirms the following statements to be true under the penalties of perjury.
1. I am an with the law firm Belluck & attorneys for the above-
attorney Fox, LLP,
captioned plaintiffs, and I am fully familiar with the facts and circumstances of this case.
2. My affirmation is submitted in opposition to Defendant AMERICAN BILTRITE
INC. (hereinafter Amtico)'s motion for summary judgment pursuant to CPLR § 3212 dismissing
the complaint and all cross-claims insofar as asserted against it.
3. The decedent Robert Godfrey developed mesothelioma as a result of his exposure
snapping"
to asbestos-laden dust from, inter alia,handling, installing, cutting, and "scoring and
Amtico floor tiles. Mr. Godfrey was deposed over the course of three days between October 7,
2015 and November 19, 2015 (see Exhibit A annexed in relevant pages), and his de bene esse
videotaped deposition testimony was given on November 19, 2015 (see Exhibit B annexed in
relevant pages).
4. At the outset, this Court denied at least five virtually idêñtical s:æmry
judgment m::::::3 by Amtico in the past three months. See Brown v. A.O. Smith Water
Products, 2018 WL 5017044 (Sup. Ct., October 15, 2018); Isernia v. A.O. Smith Water Products
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[Amtico], 2018 WL 5017043 (Sup. Ct., October 16, 2018); Swanson v. Air & Liquid Systems
Corp. FAmticol, 2018 WL 4917794 (Sup. Ct., October 10, 2018); Ciano v Americañ Biltrite
[Amtico], et al.,2018 WL 4308596 (Sup. Ct., September 6, 2018); Monaco v. A.O. Smith Water
Products fAmticol, 2018 WL 4308595 (Sup. Ct., September 6, 2018).
5. This Court's decisions are consistent with other New York Courts that have
denied motions for summary judgment and motions in limine made by Amtico on the exact same
grounds. S_ee Wilbur v 84 Lumber, et al.,(Index No. 2015/03482, Sup. Ct., Monroe Cty, June 23,
2016)(summary judgment on causation to Amtico not warranted) (annexed hereto as Exhibit
"C"
at p. 6); Gondar v A.O. Smith Water Products,_et al., (Index No. 190079/2015) (Sup. Ct.
"Parker/Frye"
NY Cty May 5, 2016) (denying motions to Amtico) (annexed in relevant pages as
"D"
Exhibit at 11, 51-52); Shields v American Biltrite. Inc.. et al.,(Index No. 2016/3854) (Sup.
Ct. Monroe Cty., July 24, 2017) (summary judgment to Amtico not warranted) (annexed hereto
"E"
as Exhibit at p. 2).
6. It issubmitted that the decisions in Brown, Iserna, Swanson, Ciano, Monaco,
Wilbur, Gondar, and Shields are squarely on point, their rationales should be followed, and this
consideration.1
motion should be denied without further
7. However, should the Court deem is provident to reexamine this issue once more,
itis respectfully submitted that the drastic remedy of summary judgment is unwarranted under
the circumstances of this case where (1) itis undisputed that the decedent Robert Godfrey
installed Amtico vinyl asbestos tiles at Bradford College in the 1970s while working as a laborer
on the grounds crew, (2) his work caused him to inhale asbestos-laden dust, as it involved
1 Plaintiff
sticipates will contend thisCourt should not adhere to itspriordecisions
thatDefendant circñê0üsly that
based on the In re New York City Ashestos Litig.[Juni],(2018 WL 6173944, __ NY3d __(November 27, 2018)).
Plaintiffs'
The Court of Appeals decision inLuni, however, actually supports position on thismotion. See Section
III,infra.
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cutting, snapping, handling, and unboxing Amtico vinyl asbestos tiles, (3) Defendant brazenly
mischaracterizes the nature of Plaintiff's expert causation opinion, which has been proffered in
countless asbestos actions and approbated on appeal, (4) numerous studies, tests, and published
articles in the literature demonstrate that the manipulation of vinyl asbestos tiles, including
Amtico, as described by the decedent, release asbestos at levels that can cause mesothelioma,
and (5) clear issues of fact exist as to causation based upon the affidavit of Plaintiff's expert,
Edwin Holstein, M.D.
I. THE DECEDENT ROBERT GODFREY WAS EXTENSIVELY EXPOSED TO
ASBESTOS FROM CUTTING, SNAPPING, HANDLING AND UNBOXING
AMTICO VINYL ASBESTOS TILES AT BRADFORD COLLEGE WHILE
WORKING AS A LABORER ON THE GROUNDS CREW IN THE 1970s
crew"
8. Mr. Godfrey worked as a laborer on the "grounds while he was a student at
Bradford College in the 1970s, which involved the maintenance of the school's various buildings
and facilities (Exh B at 23-25). He performed this work five days a week, and sometimes on the
weekend as well, which amounted to 20 hours a week during the school year and 40 hours a
week in the months before and after the school year (Exh A at 33-38). His duties included
cleaning up after the maintenance and repairs performed in allthe buildings (Exh A at 34, 43).
He stated that his duties included removing and installing floor tiles in various buildings (Exh A
at 59-60, 68-70, 72-73, 76-78, 82-83, 86-89, 172-73, 180).
9. Mr. Godfrey testified that the tiles said "vinyl asbestos floor tiles...right on the
box"
(Exh A at 62). The decedent repeatedly reiterated that the boxes of tile were labeled "vinyl
tiles."
asbestos (Exh A at 175; Exh B at 34-35, 64, 66).
10. He stated that Amtico was a brand of vinyl asbestos tile that he used throughout
his tenure at Bradford College (Exh A at 61, 175, 177-78; Exh B at 73, 82). He personally
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observed the name Amtico on the boxes of tile (Exh A at 175). The tileswere either 9-inch
squares or 12-inch squares, and primarily green in color (Exh A at 177; Exh B at 34, 64, 83).
11. Mr. Godfrey was exposed to asbestos-contarninated dust from several activities
during his installation of Amtico vinyl asbestos tiles at Bradford College. First, he noted that he
unboxed and handled Amtico vinyl asbestos tiles (Exh A at 164, 177).
12. Next, he stated that "[w]hen you got to the walls, you would cut the tiles and
get."
make them as even along as you could (Exh A at 61). This required him to personally score
of," work"
and snap tiles with a razor, which he did "a fair amount since itwas part of the "daily
times"
he did "so many (Exh A at 60, 167-69, 180-81). He stated that "[w]hen you snapped [the
nature."
vinyl asbestos tiles],they would give off some dust [...]again, plenty of sandy (Exh B
at 36).
"all"
13. Mr. Godfrey also did the cleanup after scoring and snapping these tiles (Exh
A at 182-83; Exh B at 65). Cleanup involved sweeping up the jobsites after tiles were cut and
installed (Exh A at 182-83).
14. Consequently, the decedeñt was regularly exposed to asbestos-laden dust from
College.2
multiple activities with Amtico vinyl asbestos tiles during his tenure at Bradford
2
Mr. Godfrey became a commercial real estatebroker aftergraduating from college. He suffered additionalasbestos
Square" - -
exposure while showing portions of "Bohack's a former distribution centerfor a supermarket to
potentialtenants as workers were installingfloor and
tiles ripping out old materials inhis presence. He statedthat
floortileswere being installed atBohack's Square while he visitedthe site,
and, importantly, he statedthat the
manufacturer of the floortileswas one of thesame four brands thathe observed at Bradford college Amtico
(i.e.,
and only three others),although he could not specificallyrecallwhich one. This arguably creates an inference of
additional exposure to asbestos from Amtico vinyl asbestos tiles,
particularly where allinferences must be drawn in
Plaintiff's
favor on thismotion.
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IL DEFENDANT'S INTERROGATORY RESPONSES CONFIRM THAT AMTICO
TILES WERE COMPRISED OF ASBESTOS, AND THAT SUCH FLOOR TILES
RELEASE RESPIRABLE FIBERS WHEN MANIPULATED
15. It isalso undisputed that Amtico vinyl asbestos tileswere comprised of asbestos
throughout the entire duration of Mr. Godfrey's exposure period. In fact, Defendant has
affirmatively proffered evidence of the same (see Exhibit D annexed to the Reiñhardt
Affirmation - Amtico's NYCAL Responses).
Interrogatory
16. In this regard, Amtico manufactured vinyl asbestos tiles between 1961 and 1985
(Id. at p. 7, Attachment I (h)). These tileswere comprised of between 13% and 18% chrysotile
asbestos (Id. at Attachment I (e)).
17. Defendant was aware that cutting the tiles during the installation process was
necessary (Ld. at Attachment I (t)).Defendant's interrogatory responses also concede that Amtico
began warning itscustomers in the 1970s that the manipulation of asbestos-colitailling flooring
creates hazardous respirable dust at levels that can cause asbestosis and other "serious bodily
harm."
(Id. at p. 14).
18. Thus, itis undisputed that Mr. Godfrey identified work with Amtico tilesas a
source of his asbestos and Defendant's respoilses confirm the asbestos-
exposure, interrogatory
content of the exact tiles at issue. Under these circumstances, and particularly when this evidence
is paired with the affidavit of Edwin Holstein, M.D., itis submitted that summary judgment is
unwarranted.
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IH. AMTICO HAS FAILED TO MEET ITS INITIAL BURDEN, BUT IN ANY
EVENT, THE AFFIDAVIT OF PLAINTIFF'S EXPERT EDWIN HOLSTEIN,
M.D. PRESENTS CLEAR ISSUES OF FACT AS TO CAUSATION
19. Defendant asserts that Plaintiff is allegedly unable to establish causation against
Amtico, and itproffers the reports of John Spencer, Stanley Geyer, and James Crapo, which are
sworn to with corresponding affidavits. These, however, do not establish Defendant's entitlement
to judgment as a matter of law, as they confuse and conflate general and specific causation. In
any case, in light of Dr. Edwin Holstein's affidavit, which is proffered in opposition to Amtico's
motion, clear issues of fact exist as to whether Mr. Godfrey's exposure to asbestos from
Defendant's vinyl asbestos tile was a proximate cause of his mesothelioma.
"unequivocally"
20. At the outset, the predicate of Amtico's motion does not entitle it
to summary judgment since ithinges on a misstatement of New York law. S_ee Berensmann v
3M Company, 122 AD3d 520 (1st Dept. 2014) (movant must unequivocally establish that it
products could not have caused the plaintiff's *
injuries); Brown, supra at 2 (same); Swanson,
*
supra at 2 (same).
21. To wit, Defendant incorrectly asserts that a general causation inquiry focuses on
the specific product at issue. See, e.g._Defendant's Memo of Law at p. 3. In Parker v Mobil Oil
(7 N.Y.3d 434 (2006), the Court of Appeals declared that to establish causation a plaintiff must
cüüsation)."
prove first that "the toxin is capable of causing the particular illness (general It at
448 (einphasis added); see also ii at 446, n.2 (noting that the World Health Organization and the
National Academy of Science defme general causation as "proof that the toxin in qüëstioñ can
in fact cause the illness, and the amount of exposure required to cause the illness") (emphasis
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added). In fact, this Court in Brown cited to the exact portion of Parker that avows that general
causation merely asks if the toxin is capable of caming the illness. Brown, supra at *2.
22. That - the toxin - causes mesothelioma in low
asbestos, including chrysotile, i.e.,
doses is well-documented in both the scientific literature and the caselaw S_ee, e.g, Wiegman v.
AC&S Inc, 24 A.D.3d 375 (1st Dept., 2006) ("[t]he link between asbestos and disease is well
documented"). Indeed, in Parker, although the plaintiff alleged that he developed leukemia from
his exposure to benzene contained within gasoline, the Court of Appeals nonetheless framed the
toxin."
general causation question broadly in terms of only "the Id. at 449 (the link between
"benzene and the risk of developing AML...is not in dispute"); see also In re N.Y.C. Asbestos
Litig. [Feinberg], 53 Misc. 3d 579, 596 (Sup. Ct., N.Y. Cty., 2016) ("the connection between
asbestos dust and mesothelioma is well known (providing the basis for general causation)")
(emphasis added). The general causation inquiry does not go any further than that.
Appeals'
23. Nor does the Court of decision in In re New York City Asbestos Litig.
f Junil (2018 WL 6173944, ___ NY3D ___ (N.Y. Nov. 27, 2018)) alter this well-settled principle.
record,"
The Juni Court's plurality decision, which was explicitly decided "on th[at] particular
does not purport to alter the principle that general causation addresses only the toxin at issue.
Indeed, Judge Fahey explicitly stated in his concurring opinion that "I do not address any other
Division"
issues of geñêral or specific causation reached by the Appellate beyond his conclusion
that the record did not establish that the plaintiff was exposed to any asbestos from Ford
products. Id. (Fahey, J.,concurring). And while Judge Wilson's concurring opinion addressed
general causation, his decision hinged on whether there was any evidence in the record that the
"toxin"
asbestos remained in the product at issue, noting that there was unrebutted evidence that
any asbestos in Ford brakes converted to a nontoxic substance, which obviously could not cause
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an asbestos-related disease. Id. Indeed, he confirmed the general causation principle that "raw
chrysotile asbestos greater than 5 microns in length is toxic and exposure to it carries increased
risk for mesothelioma, or that Mr. Juni died of mesothelioma, and the proof is more than
death."
sufficient to establish that his exposure to asbestos caused his disease and IL
24. Here, unlike in Juni, Defendant has proffered affirmative evidence establishing
that Amtico vinyl asbestos tiles were comprised of chrysotile asbestos (see, ea, Exhs C-F).
There is neither evidence nor even an argument on this motion that such chrysotile somehow
converts to a nontoxic substance at any point during its manufacturer or use in Amtico floor tiles,
which readily distinguishes this case from the factual record in Juni. There is simply, therefore,
no issue as to general causation on this motion. See also Hoffeditz v. AM Gen., LLC, __ F.3d __,
No. CV 09-0257, 2017 WL 3332263, at *3 (D.N.J. Aug. 4, 2017) ("[b]ecause, as explained
breath'
below, Dr. Moline did not rely on an 'each and every theory of causation, but instead
Defendants'
considered Mr. Hoffeditz's specific exposure to products and the work he did with
those products, the Court concludes that Dr. Moline's testimony is sufficiently reliable.").
25. Furthermore, in alleging that Plaintiff cannot establish specific causation,
Defendant entirely misinterprets and distorts New York law, including the decisions in Parker v
Mobil Oil (7 N.Y.3d 434 (2006)), Cornell v. 360 West 51st Street Realty, LLC, (22 N.Y.3d 762,
776 (2014)), and their progeny. Undoubtedly, Defendant will not simply attempt to rely on Juni,
"holdings"
but will improperly attempt to read into Juni certain that are clearly not set forth
therein.
26. In short, Juni supports Plaintiff's position, as it isexpressly limited to the facts of
that peculiar case, and, if there is any identifiable holding, itis that causation should be leftto the
trierof fact, and legal sufficiency should be left to a post-verdict analysis. Indeed, in his
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concurrence, Judge Wilson avowed that "I do not suggest that Ford is correct as a scientific
matter; that question remains for the trier of fact in each case. Here, in my view, there was
issue."
a in proof as to the toxicity of the products at M. (emphasis added). That this
simply gap
is a jury question is consistent with what the Court of Appeals espoused in Cornell v.
entirely
51st St. 22 N.Y.3d 785-86 that causation is case-
360 W. Realty, LLC, 762, (2014) (declaring
specific and a determination that expert opinion is insufficient in one case "does not (and indeed
exist"
cannot) stand for the proposition that a cause-and-effect relationship does not in another
case, even where itinvolves the same toxin or product.). Indeed, Juni cited to and relied upon its
prior decision in Cornell. C_f. O'Connor v. AERCO Int'1.Inc., 152 A.D.3d 841, 844 (3d Dept.
2017) ("Parker and itsprogeny address a plaintiff's burden to establish specific causation at trial
through admissible scientific proof..."). In this regard, Defendant improperly seeks a pre-trial
causation.3
determination regarding
27. Similar requests - agaiñst Amtico - have been denied at
including consistently
both the summary judgment and in limine stages. See, e_.g.,Brown, supra (noting that causation
issues as to Amtico vinyl asbestos tilesshould be resolved at trial);Wilbur, supra (in denying
Amtico summary judgment, the court opined that it"does not see the wisdom of making a pre-
trialdetermination without the benefit of a fully laid foundation. [Defendant's] reliance on [J_uni]
to support itsargument is misplaced as the court in [J_uni]made itscausation determination in a
3 experts'
Indeed, to even make itspurported Parker argümcñt, Defendant has relegated itself
to attacking Plaintiff's
reports,which are made pursuant toC.P.L.R. 3101(d), and require only "reasonable detail[offthe subject matter on
which each expert isexpected totestify,thesubstance of the factsand opinions on which each expertis expected to
opinion."
the
testify, qualificationsof each expert witness and asummary of the grounds for each expert's This has
requirement."
been noted to be a "ninin:n statutory Folev v. American Ind. Pacer Mill Supply Co.,222 A.D.2d
401 (2d Dept., 1995); Conway v. EliteTowing & Flatbedding Corp., 135 A.D.3d 893, 894 (2d Dept., 2016) (there
"isno requirement that theexpert set forththe specificfacts and opinions upon which he or she isexpected to
testify"
inan expert disclosure); Krygier v. Airweld, Inc., 176 A.D.2d 700, 700-01 (2d Dept., 1991) ("there is no
requirement toprovide the ñmdemental factual inferniaticñupon which an expert'sopinions were made. Indeed, a
party'srequest forthe facts and opinions upon which another party'sexpert is expectedto testifyisimproper. The
requesting partyisentitled only to the Amee of those factsand opinions") (emphasis added). Defendant
conflatesthe expert disclosure requirercentsunder C.P.L.R. 3101(d) with expert foundation reqüircreents at trial.
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post-trial motion, having the full benefit of allthe trialevidence before the court in rendering its
decision"); Evans, supra (noting that plaintiff's experts "will presumably expand on their
reÿüTis"
and further that the nisi prius court's decision in Juni was decided post-verdict)
(emphasis added).
28. To this end, in Parker, the Court of Appeals addressed the foundation of an
expert's causation testimony in a toxic torts case, concluding that as to specific causation, a
illness."
plaintiff must set forth that "he was exposed to sufficient levels of the toxin to cause the
Parker, supra at 448. However, far from setting forth a rigid or strict standard, the Parker Court
declared that:
itis not always necessary for a plaintiff to quantify exposure levels precisely or
use the dose-response relationship, provided that whatever methods an expert uses
to establish causation are generally accepted in the scientific community....There
could be several other ways an expert might demonstrate causation. For instance,
amici note that the intensity of exposure to benzene may be more important than a
cumulative dose for determining the risk of developing leukemia. Moreover,
exposure can be estimated through the use of mathematical modeling by taking a
plaintiffs work history into account to estimate the exposure to a toxin. It isalso
possible that more qualitative means could be used to express a plaintiffs
exposure. Comparison to the exposure levels of subjects of other studies could be
helpful provided that the expert made a specific comparison sufficient to show
how the plaintiffs exposure level related to those of the other subjects. These,
along with others, could be potentially acceptable ways to demonstrate causation
ifthey were found to be generally accepted as reliable in the scientific community.
ISL at 448-49 (emphasis added). As the Court of Appeals later explained, Parker "clarified rules
stañdard."
for the foundation necessary to admit expert evidence, which are unrelated to the F_ry_e
Cornell v. 360 West 51st Street Realty. LLC, 22 N.Y.3d 762, 776 (2014). Parker plainly
quantification' relationship'
"explains that 'precise or a 'dose-response or 'an exact numerical
value' causation."
is not required to make a showing of specific Cornell, supra at 784 (emphasis
added). Boiled down to itsessence, the Parker test requires nothing more than something
expression"
characterized as a "scientific of exposure. Parker, supra at 449; Sean R. ex rel.Debra
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expression"
R. v. BMW of N. Am., LLC (26 N.Y.3d 801, 808-09 (2016) (a valid "scientific
under Parker does not require numerical quantification; itmay take the form of a sensory
threshold"
threshold, such as an "odor for a toxin that exceeds workplace safety standards);
N_onnon v City of New York, 88 A.D.3d 384 (1st Dept., 2011); cL Jackson v. Nutmeg
Technologies, Inc., 43 A.D.3d 599 (3d Dept 2007) (finding that even low concentrations of toxin
when compared to studies was sufficient for causation under Parker).
29. While Defendant may attempt to allege that Juni signaled a change in the
methodology by which causation is established under under New York law, any argument to that
effect is entirely unavailing and unsupported. The Juni plurality decision did not conclude in any
respect that the expert methodology for causation employed in asbestos actions was flawed or
invalid. Id. It did not conclude that causation could not be established in an asbestos action. Id. It
did not conclude that a visible dust threshold was invalid. Id. It did not conclude that asbestos
expression"
plaintiffs could not establish a "scientific of exposure as contemplated by Parker. Id.
30. And, to be sure, itdid not overrule any of the numerous decisions where asbestos
causation was upheld by our Appellate Divisions. he In re N.Y.C. Asbestos Litig. [Hackshawl,
143 A.D.3d 485 (1st Dept., 2016); In re N.Y.C. Asbestos Litia. FSweberal, 143 A.D.3d 483 (1st
Dept., 2016), ly dismissed 28 N.Y.3d 1165 (2017), rearg. denied _N.Y.3d _ (May 9, 2017);
Penn v Amchem Products, 85 A.D.3d 475 (1st Dept., 2011); In re N.Y. Asbestos Lih
FMarshall], 28 A.D.3d 255, 256 (1st Dept., 2006); Lustenring v. AC&S, Inc. 13 A.D.3d 69 (1st
Dept., 2004); Dummitt v Crane Co., 36 Misc.3d 1234(A) at *7-8 (Sup Ct., NY Co., Aug. 20,
2012), aff'd 121 A.D.3d 230 (1st Dept., 2014), aff'd 27 N.Y.3d 765 (2016); Konstantin v 630
Third Ave. Associates, 37 Misc.3d 1206(A) at *6-7 (Sup Ct., NY Cty., 2012), aff'd 121 A.D.3d
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230 (1st Dept., 2014), aff'd 27 N.Y.3d 1172 (2016); Berger v Amchem Prod., Inc., 13 Misc. 3d
335, 346 (Sup Ct, N.Y. Cty., 2006).
31. In fact, in two appellate decisions decided after the First Department's decision in
Juni, asbestos causation was upheld as legally sufficient, and the Court of Appeals declined to
review those cases despite that Juni was currently pending before itand that those cases involved
the same expert (Dr. Jacqueline Moline) and/or the same product (brakes). S_ee In re N.Y.C.
Asbestos Litig. [Miller), 154 A.D.3d 441 (1st Dept., 2017), ly. denied 30 N.Y.3d 909 (Jan. 11,
2018) ("plaintiff's expert testimony was sufficient to establish that plaintiff's use of that grinder
on automobile brake linings caused his exposure to asbestos dust in sufficient quantities to cause
his mesothelioma"); Dominick v. Charles Millar & Son Co., 149 A.D.3d 1554 (4th Dept., 2017),
rearg. denied, 151 A.D.3d 1970, ly. denied 30 N.Y.3d 907 (Dec. 14, 2017) ("plaintiff's expert
opined that, ifa worker sees asbestos dust, that is a 'massive exposure ...capable of causing
disease.' defendants'
Contrary to the Millar contention, the expert's opinion, considered along
with the rest of her testimony, was sufficient to establish specific causation"). Clearly, these
decisions remain good law.
32. These decisions square perfectly with this Court's decisions denying summary
judgment to Amtico on this exact issue. S_ee Brown, supra; Iserna, supra; Swanson, supra; Ciano,
supra; Monaco, supra; accord Pogacnik v. A.O. Smith Water Prod. Co., 60 Misc. 3d 1208(A)
(N.Y. Sup. Ct. 2018) (rolled sheet flooring manufacturer not entitled to summary judgment);
Perillo v A.O. Smith Water Products. et al.,2018 WL 3115421 (Sup. Ct. NY Cty., June 20,
2018).
33. And of course, the reliability of an expert's opinion may be established by such
opiñi0ñs..."
"court Peoole v. Wesley, 83 N.Y.2d 417, 437 (1989).
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34. Here, in his affidavit, Dr. Holstein discusses at length, inter alia, the scientific,
regulatory, and medical literature regarding the low dose of asbestos required to cause
mesothelioma and the levels of asbestos fibers actually released during the use of the products at
issue here, which show meaningful and hazardous levels of asbestos released when vinyl
asbestos floor tiles are cut, snapped, and unpackaged (see Exhibit F annexed) (hereinafter
Holstein Affidavit). He further noted that studies show that the asbestos incorporated into vinyl
asbestos tilesas a constituent ingredient remains active and toxic, in direct contrast to the J_uni
record. And he concludes that this scientific predicate, compared to the exposures the decedent
suffered from Defendant's products on a regular and repeated basis during the 1970s, was a
substantial contributing factor to the decedent's fatal mesothelioma (Holstein Affidavit at ¶ 18).
This is causation method expressly approved by the Court of Appeals. S_ee Parker, supra at 449
("comparison to the exposure levels of subjects of other studies could be helpful...").
35. Thus, at best Defendant has proffered nothing more than competing expert
evidence that raises issues of fact for the jury to decide. S_ee Hill v. Lorac House, Ins 135
parties'
A.D.3d 659, 660 (1st Dept., 2016) ("In light of the competing expert affidavits, the issue
of whether the infant's cognitive deficits were caused by exposure to lead, or by solely unrelated
biological processes, is a question for a jury").
36. Indeed, numerous reported studies in the scientific literature underscore that the
manipulation of asbestos-containing vinyl floor tilescan release hazardous levels of asbestos. Dr.
Holstein identified a December 1982, GCA Corporation (GCA/Technology Division) report that
was prepeued for the Environnieñtal Protection Agency entitled "Analysis of Fiber Release from
Products."
Certain Asbestos (Holstein Affidavit at ¶ 16). Itprovides that activities such as
snapping"
cutting and "scoring and vinyl asbestos tiles created respirable asbestos fiber
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FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018
concentrations that range as high as .267 fibers per cubic centimeter (fibers/cc), which exceeds
the OSHA Permissible Exposure Level of 0.1 fibers/ce (Id.). These results are similar to a
(PEL)
more recent simulation identified by Dr. Holstein entitled "Scoring and Snapping Asbestos
Tile,"
Preview
FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. : 190280/2015 SHIRLEY JO GODFREY, Individually and as Executrix of the Estate of ROBERT C. GODFREY, Motion Sequence #006 deceased, Hon. Manuel J. Mendez Plaintiffs, AFFIRMATION IN v. OPPOSITION TO DEFENDANT AMERICAN BILTRITE, INC.'S A.O. SMITH WATER PRODUCTS, et al· MOTION FOR SUMMARY JUDGMENT Defendants. Michael Macrides, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following statements to be true under the penalties of perjury. 1. I am an with the law firm Belluck & attorneys for the above- attorney Fox, LLP, captioned plaintiffs, and I am fully familiar with the facts and circumstances of this case. 2. My affirmation is submitted in opposition to Defendant AMERICAN BILTRITE INC. (hereinafter Amtico)'s motion for summary judgment pursuant to CPLR § 3212 dismissing the complaint and all cross-claims insofar as asserted against it. 3. The decedent Robert Godfrey developed mesothelioma as a result of his exposure snapping" to asbestos-laden dust from, inter alia,handling, installing, cutting, and "scoring and Amtico floor tiles. Mr. Godfrey was deposed over the course of three days between October 7, 2015 and November 19, 2015 (see Exhibit A annexed in relevant pages), and his de bene esse videotaped deposition testimony was given on November 19, 2015 (see Exhibit B annexed in relevant pages). 4. At the outset, this Court denied at least five virtually idêñtical s:æmry judgment m::::::3 by Amtico in the past three months. See Brown v. A.O. Smith Water Products, 2018 WL 5017044 (Sup. Ct., October 15, 2018); Isernia v. A.O. Smith Water Products 1 of 18 FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 [Amtico], 2018 WL 5017043 (Sup. Ct., October 16, 2018); Swanson v. Air & Liquid Systems Corp. FAmticol, 2018 WL 4917794 (Sup. Ct., October 10, 2018); Ciano v Americañ Biltrite [Amtico], et al.,2018 WL 4308596 (Sup. Ct., September 6, 2018); Monaco v. A.O. Smith Water Products fAmticol, 2018 WL 4308595 (Sup. Ct., September 6, 2018). 5. This Court's decisions are consistent with other New York Courts that have denied motions for summary judgment and motions in limine made by Amtico on the exact same grounds. S_ee Wilbur v 84 Lumber, et al.,(Index No. 2015/03482, Sup. Ct., Monroe Cty, June 23, 2016)(summary judgment on causation to Amtico not warranted) (annexed hereto as Exhibit "C" at p. 6); Gondar v A.O. Smith Water Products,_et al., (Index No. 190079/2015) (Sup. Ct. "Parker/Frye" NY Cty May 5, 2016) (denying motions to Amtico) (annexed in relevant pages as "D" Exhibit at 11, 51-52); Shields v American Biltrite. Inc.. et al.,(Index No. 2016/3854) (Sup. Ct. Monroe Cty., July 24, 2017) (summary judgment to Amtico not warranted) (annexed hereto "E" as Exhibit at p. 2). 6. It issubmitted that the decisions in Brown, Iserna, Swanson, Ciano, Monaco, Wilbur, Gondar, and Shields are squarely on point, their rationales should be followed, and this consideration.1 motion should be denied without further 7. However, should the Court deem is provident to reexamine this issue once more, itis respectfully submitted that the drastic remedy of summary judgment is unwarranted under the circumstances of this case where (1) itis undisputed that the decedent Robert Godfrey installed Amtico vinyl asbestos tiles at Bradford College in the 1970s while working as a laborer on the grounds crew, (2) his work caused him to inhale asbestos-laden dust, as it involved 1 Plaintiff sticipates will contend thisCourt should not adhere to itspriordecisions thatDefendant circñê0üsly that based on the In re New York City Ashestos Litig.[Juni],(2018 WL 6173944, __ NY3d __(November 27, 2018)). Plaintiffs' The Court of Appeals decision inLuni, however, actually supports position on thismotion. See Section III,infra. 2 of 18 FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 cutting, snapping, handling, and unboxing Amtico vinyl asbestos tiles, (3) Defendant brazenly mischaracterizes the nature of Plaintiff's expert causation opinion, which has been proffered in countless asbestos actions and approbated on appeal, (4) numerous studies, tests, and published articles in the literature demonstrate that the manipulation of vinyl asbestos tiles, including Amtico, as described by the decedent, release asbestos at levels that can cause mesothelioma, and (5) clear issues of fact exist as to causation based upon the affidavit of Plaintiff's expert, Edwin Holstein, M.D. I. THE DECEDENT ROBERT GODFREY WAS EXTENSIVELY EXPOSED TO ASBESTOS FROM CUTTING, SNAPPING, HANDLING AND UNBOXING AMTICO VINYL ASBESTOS TILES AT BRADFORD COLLEGE WHILE WORKING AS A LABORER ON THE GROUNDS CREW IN THE 1970s crew" 8. Mr. Godfrey worked as a laborer on the "grounds while he was a student at Bradford College in the 1970s, which involved the maintenance of the school's various buildings and facilities (Exh B at 23-25). He performed this work five days a week, and sometimes on the weekend as well, which amounted to 20 hours a week during the school year and 40 hours a week in the months before and after the school year (Exh A at 33-38). His duties included cleaning up after the maintenance and repairs performed in allthe buildings (Exh A at 34, 43). He stated that his duties included removing and installing floor tiles in various buildings (Exh A at 59-60, 68-70, 72-73, 76-78, 82-83, 86-89, 172-73, 180). 9. Mr. Godfrey testified that the tiles said "vinyl asbestos floor tiles...right on the box" (Exh A at 62). The decedent repeatedly reiterated that the boxes of tile were labeled "vinyl tiles." asbestos (Exh A at 175; Exh B at 34-35, 64, 66). 10. He stated that Amtico was a brand of vinyl asbestos tile that he used throughout his tenure at Bradford College (Exh A at 61, 175, 177-78; Exh B at 73, 82). He personally 3 of 18 FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 observed the name Amtico on the boxes of tile (Exh A at 175). The tileswere either 9-inch squares or 12-inch squares, and primarily green in color (Exh A at 177; Exh B at 34, 64, 83). 11. Mr. Godfrey was exposed to asbestos-contarninated dust from several activities during his installation of Amtico vinyl asbestos tiles at Bradford College. First, he noted that he unboxed and handled Amtico vinyl asbestos tiles (Exh A at 164, 177). 12. Next, he stated that "[w]hen you got to the walls, you would cut the tiles and get." make them as even along as you could (Exh A at 61). This required him to personally score of," work" and snap tiles with a razor, which he did "a fair amount since itwas part of the "daily times" he did "so many (Exh A at 60, 167-69, 180-81). He stated that "[w]hen you snapped [the nature." vinyl asbestos tiles],they would give off some dust [...]again, plenty of sandy (Exh B at 36). "all" 13. Mr. Godfrey also did the cleanup after scoring and snapping these tiles (Exh A at 182-83; Exh B at 65). Cleanup involved sweeping up the jobsites after tiles were cut and installed (Exh A at 182-83). 14. Consequently, the decedeñt was regularly exposed to asbestos-laden dust from College.2 multiple activities with Amtico vinyl asbestos tiles during his tenure at Bradford 2 Mr. Godfrey became a commercial real estatebroker aftergraduating from college. He suffered additionalasbestos Square" - - exposure while showing portions of "Bohack's a former distribution centerfor a supermarket to potentialtenants as workers were installingfloor and tiles ripping out old materials inhis presence. He statedthat floortileswere being installed atBohack's Square while he visitedthe site, and, importantly, he statedthat the manufacturer of the floortileswas one of thesame four brands thathe observed at Bradford college Amtico (i.e., and only three others),although he could not specificallyrecallwhich one. This arguably creates an inference of additional exposure to asbestos from Amtico vinyl asbestos tiles, particularly where allinferences must be drawn in Plaintiff's favor on thismotion. 4 of 18 FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 IL DEFENDANT'S INTERROGATORY RESPONSES CONFIRM THAT AMTICO TILES WERE COMPRISED OF ASBESTOS, AND THAT SUCH FLOOR TILES RELEASE RESPIRABLE FIBERS WHEN MANIPULATED 15. It isalso undisputed that Amtico vinyl asbestos tileswere comprised of asbestos throughout the entire duration of Mr. Godfrey's exposure period. In fact, Defendant has affirmatively proffered evidence of the same (see Exhibit D annexed to the Reiñhardt Affirmation - Amtico's NYCAL Responses). Interrogatory 16. In this regard, Amtico manufactured vinyl asbestos tiles between 1961 and 1985 (Id. at p. 7, Attachment I (h)). These tileswere comprised of between 13% and 18% chrysotile asbestos (Id. at Attachment I (e)). 17. Defendant was aware that cutting the tiles during the installation process was necessary (Ld. at Attachment I (t)).Defendant's interrogatory responses also concede that Amtico began warning itscustomers in the 1970s that the manipulation of asbestos-colitailling flooring creates hazardous respirable dust at levels that can cause asbestosis and other "serious bodily harm." (Id. at p. 14). 18. Thus, itis undisputed that Mr. Godfrey identified work with Amtico tilesas a source of his asbestos and Defendant's respoilses confirm the asbestos- exposure, interrogatory content of the exact tiles at issue. Under these circumstances, and particularly when this evidence is paired with the affidavit of Edwin Holstein, M.D., itis submitted that summary judgment is unwarranted. 5 of 18 FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 IH. AMTICO HAS FAILED TO MEET ITS INITIAL BURDEN, BUT IN ANY EVENT, THE AFFIDAVIT OF PLAINTIFF'S EXPERT EDWIN HOLSTEIN, M.D. PRESENTS CLEAR ISSUES OF FACT AS TO CAUSATION 19. Defendant asserts that Plaintiff is allegedly unable to establish causation against Amtico, and itproffers the reports of John Spencer, Stanley Geyer, and James Crapo, which are sworn to with corresponding affidavits. These, however, do not establish Defendant's entitlement to judgment as a matter of law, as they confuse and conflate general and specific causation. In any case, in light of Dr. Edwin Holstein's affidavit, which is proffered in opposition to Amtico's motion, clear issues of fact exist as to whether Mr. Godfrey's exposure to asbestos from Defendant's vinyl asbestos tile was a proximate cause of his mesothelioma. "unequivocally" 20. At the outset, the predicate of Amtico's motion does not entitle it to summary judgment since ithinges on a misstatement of New York law. S_ee Berensmann v 3M Company, 122 AD3d 520 (1st Dept. 2014) (movant must unequivocally establish that it products could not have caused the plaintiff's * injuries); Brown, supra at 2 (same); Swanson, * supra at 2 (same). 21. To wit, Defendant incorrectly asserts that a general causation inquiry focuses on the specific product at issue. See, e.g._Defendant's Memo of Law at p. 3. In Parker v Mobil Oil (7 N.Y.3d 434 (2006), the Court of Appeals declared that to establish causation a plaintiff must cüüsation)." prove first that "the toxin is capable of causing the particular illness (general It at 448 (einphasis added); see also ii at 446, n.2 (noting that the World Health Organization and the National Academy of Science defme general causation as "proof that the toxin in qüëstioñ can in fact cause the illness, and the amount of exposure required to cause the illness") (emphasis 6 of 18 FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 added). In fact, this Court in Brown cited to the exact portion of Parker that avows that general causation merely asks if the toxin is capable of caming the illness. Brown, supra at *2. 22. That - the toxin - causes mesothelioma in low asbestos, including chrysotile, i.e., doses is well-documented in both the scientific literature and the caselaw S_ee, e.g, Wiegman v. AC&S Inc, 24 A.D.3d 375 (1st Dept., 2006) ("[t]he link between asbestos and disease is well documented"). Indeed, in Parker, although the plaintiff alleged that he developed leukemia from his exposure to benzene contained within gasoline, the Court of Appeals nonetheless framed the toxin." general causation question broadly in terms of only "the Id. at 449 (the link between "benzene and the risk of developing AML...is not in dispute"); see also In re N.Y.C. Asbestos Litig. [Feinberg], 53 Misc. 3d 579, 596 (Sup. Ct., N.Y. Cty., 2016) ("the connection between asbestos dust and mesothelioma is well known (providing the basis for general causation)") (emphasis added). The general causation inquiry does not go any further than that. Appeals' 23. Nor does the Court of decision in In re New York City Asbestos Litig. f Junil (2018 WL 6173944, ___ NY3D ___ (N.Y. Nov. 27, 2018)) alter this well-settled principle. record," The Juni Court's plurality decision, which was explicitly decided "on th[at] particular does not purport to alter the principle that general causation addresses only the toxin at issue. Indeed, Judge Fahey explicitly stated in his concurring opinion that "I do not address any other Division" issues of geñêral or specific causation reached by the Appellate beyond his conclusion that the record did not establish that the plaintiff was exposed to any asbestos from Ford products. Id. (Fahey, J.,concurring). And while Judge Wilson's concurring opinion addressed general causation, his decision hinged on whether there was any evidence in the record that the "toxin" asbestos remained in the product at issue, noting that there was unrebutted evidence that any asbestos in Ford brakes converted to a nontoxic substance, which obviously could not cause 7 of 18 FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 an asbestos-related disease. Id. Indeed, he confirmed the general causation principle that "raw chrysotile asbestos greater than 5 microns in length is toxic and exposure to it carries increased risk for mesothelioma, or that Mr. Juni died of mesothelioma, and the proof is more than death." sufficient to establish that his exposure to asbestos caused his disease and IL 24. Here, unlike in Juni, Defendant has proffered affirmative evidence establishing that Amtico vinyl asbestos tiles were comprised of chrysotile asbestos (see, ea, Exhs C-F). There is neither evidence nor even an argument on this motion that such chrysotile somehow converts to a nontoxic substance at any point during its manufacturer or use in Amtico floor tiles, which readily distinguishes this case from the factual record in Juni. There is simply, therefore, no issue as to general causation on this motion. See also Hoffeditz v. AM Gen., LLC, __ F.3d __, No. CV 09-0257, 2017 WL 3332263, at *3 (D.N.J. Aug. 4, 2017) ("[b]ecause, as explained breath' below, Dr. Moline did not rely on an 'each and every theory of causation, but instead Defendants' considered Mr. Hoffeditz's specific exposure to products and the work he did with those products, the Court concludes that Dr. Moline's testimony is sufficiently reliable."). 25. Furthermore, in alleging that Plaintiff cannot establish specific causation, Defendant entirely misinterprets and distorts New York law, including the decisions in Parker v Mobil Oil (7 N.Y.3d 434 (2006)), Cornell v. 360 West 51st Street Realty, LLC, (22 N.Y.3d 762, 776 (2014)), and their progeny. Undoubtedly, Defendant will not simply attempt to rely on Juni, "holdings" but will improperly attempt to read into Juni certain that are clearly not set forth therein. 26. In short, Juni supports Plaintiff's position, as it isexpressly limited to the facts of that peculiar case, and, if there is any identifiable holding, itis that causation should be leftto the trierof fact, and legal sufficiency should be left to a post-verdict analysis. Indeed, in his 8 of 18 FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 concurrence, Judge Wilson avowed that "I do not suggest that Ford is correct as a scientific matter; that question remains for the trier of fact in each case. Here, in my view, there was issue." a in proof as to the toxicity of the products at M. (emphasis added). That this simply gap is a jury question is consistent with what the Court of Appeals espoused in Cornell v. entirely 51st St. 22 N.Y.3d 785-86 that causation is case- 360 W. Realty, LLC, 762, (2014) (declaring specific and a determination that expert opinion is insufficient in one case "does not (and indeed exist" cannot) stand for the proposition that a cause-and-effect relationship does not in another case, even where itinvolves the same toxin or product.). Indeed, Juni cited to and relied upon its prior decision in Cornell. C_f. O'Connor v. AERCO Int'1.Inc., 152 A.D.3d 841, 844 (3d Dept. 2017) ("Parker and itsprogeny address a plaintiff's burden to establish specific causation at trial through admissible scientific proof..."). In this regard, Defendant improperly seeks a pre-trial causation.3 determination regarding 27. Similar requests - agaiñst Amtico - have been denied at including consistently both the summary judgment and in limine stages. See, e_.g.,Brown, supra (noting that causation issues as to Amtico vinyl asbestos tilesshould be resolved at trial);Wilbur, supra (in denying Amtico summary judgment, the court opined that it"does not see the wisdom of making a pre- trialdetermination without the benefit of a fully laid foundation. [Defendant's] reliance on [J_uni] to support itsargument is misplaced as the court in [J_uni]made itscausation determination in a 3 experts' Indeed, to even make itspurported Parker argümcñt, Defendant has relegated itself to attacking Plaintiff's reports,which are made pursuant toC.P.L.R. 3101(d), and require only "reasonable detail[offthe subject matter on which each expert isexpected totestify,thesubstance of the factsand opinions on which each expertis expected to opinion." the testify, qualificationsof each expert witness and asummary of the grounds for each expert's This has requirement." been noted to be a "ninin:n statutory Folev v. American Ind. Pacer Mill Supply Co.,222 A.D.2d 401 (2d Dept., 1995); Conway v. EliteTowing & Flatbedding Corp., 135 A.D.3d 893, 894 (2d Dept., 2016) (there "isno requirement that theexpert set forththe specificfacts and opinions upon which he or she isexpected to testify" inan expert disclosure); Krygier v. Airweld, Inc., 176 A.D.2d 700, 700-01 (2d Dept., 1991) ("there is no requirement toprovide the ñmdemental factual inferniaticñupon which an expert'sopinions were made. Indeed, a party'srequest forthe facts and opinions upon which another party'sexpert is expectedto testifyisimproper. The requesting partyisentitled only to the Amee of those factsand opinions") (emphasis added). Defendant conflatesthe expert disclosure requirercentsunder C.P.L.R. 3101(d) with expert foundation reqüircreents at trial. 9 of 18 FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 post-trial motion, having the full benefit of allthe trialevidence before the court in rendering its decision"); Evans, supra (noting that plaintiff's experts "will presumably expand on their reÿüTis" and further that the nisi prius court's decision in Juni was decided post-verdict) (emphasis added). 28. To this end, in Parker, the Court of Appeals addressed the foundation of an expert's causation testimony in a toxic torts case, concluding that as to specific causation, a illness." plaintiff must set forth that "he was exposed to sufficient levels of the toxin to cause the Parker, supra at 448. However, far from setting forth a rigid or strict standard, the Parker Court declared that: itis not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community....There could be several other ways an expert might demonstrate causation. For instance, amici note that the intensity of exposure to benzene may be more important than a cumulative dose for determining the risk of developing leukemia. Moreover, exposure can be estimated through the use of mathematical modeling by taking a plaintiffs work history into account to estimate the exposure to a toxin. It isalso possible that more qualitative means could be used to express a plaintiffs exposure. Comparison to the exposure levels of subjects of other studies could be helpful provided that the expert made a specific comparison sufficient to show how the plaintiffs exposure level related to those of the other subjects. These, along with others, could be potentially acceptable ways to demonstrate causation ifthey were found to be generally accepted as reliable in the scientific community. ISL at 448-49 (emphasis added). As the Court of Appeals later explained, Parker "clarified rules stañdard." for the foundation necessary to admit expert evidence, which are unrelated to the F_ry_e Cornell v. 360 West 51st Street Realty. LLC, 22 N.Y.3d 762, 776 (2014). Parker plainly quantification' relationship' "explains that 'precise or a 'dose-response or 'an exact numerical value' causation." is not required to make a showing of specific Cornell, supra at 784 (emphasis added). Boiled down to itsessence, the Parker test requires nothing more than something expression" characterized as a "scientific of exposure. Parker, supra at 449; Sean R. ex rel.Debra 10 of 18 FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 expression" R. v. BMW of N. Am., LLC (26 N.Y.3d 801, 808-09 (2016) (a valid "scientific under Parker does not require numerical quantification; itmay take the form of a sensory threshold" threshold, such as an "odor for a toxin that exceeds workplace safety standards); N_onnon v City of New York, 88 A.D.3d 384 (1st Dept., 2011); cL Jackson v. Nutmeg Technologies, Inc., 43 A.D.3d 599 (3d Dept 2007) (finding that even low concentrations of toxin when compared to studies was sufficient for causation under Parker). 29. While Defendant may attempt to allege that Juni signaled a change in the methodology by which causation is established under under New York law, any argument to that effect is entirely unavailing and unsupported. The Juni plurality decision did not conclude in any respect that the expert methodology for causation employed in asbestos actions was flawed or invalid. Id. It did not conclude that causation could not be established in an asbestos action. Id. It did not conclude that a visible dust threshold was invalid. Id. It did not conclude that asbestos expression" plaintiffs could not establish a "scientific of exposure as contemplated by Parker. Id. 30. And, to be sure, itdid not overrule any of the numerous decisions where asbestos causation was upheld by our Appellate Divisions. he In re N.Y.C. Asbestos Litig. [Hackshawl, 143 A.D.3d 485 (1st Dept., 2016); In re N.Y.C. Asbestos Litia. FSweberal, 143 A.D.3d 483 (1st Dept., 2016), ly dismissed 28 N.Y.3d 1165 (2017), rearg. denied _N.Y.3d _ (May 9, 2017); Penn v Amchem Products, 85 A.D.3d 475 (1st Dept., 2011); In re N.Y. Asbestos Lih FMarshall], 28 A.D.3d 255, 256 (1st Dept., 2006); Lustenring v. AC&S, Inc. 13 A.D.3d 69 (1st Dept., 2004); Dummitt v Crane Co., 36 Misc.3d 1234(A) at *7-8 (Sup Ct., NY Co., Aug. 20, 2012), aff'd 121 A.D.3d 230 (1st Dept., 2014), aff'd 27 N.Y.3d 765 (2016); Konstantin v 630 Third Ave. Associates, 37 Misc.3d 1206(A) at *6-7 (Sup Ct., NY Cty., 2012), aff'd 121 A.D.3d 11 of 18 FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 230 (1st Dept., 2014), aff'd 27 N.Y.3d 1172 (2016); Berger v Amchem Prod., Inc., 13 Misc. 3d 335, 346 (Sup Ct, N.Y. Cty., 2006). 31. In fact, in two appellate decisions decided after the First Department's decision in Juni, asbestos causation was upheld as legally sufficient, and the Court of Appeals declined to review those cases despite that Juni was currently pending before itand that those cases involved the same expert (Dr. Jacqueline Moline) and/or the same product (brakes). S_ee In re N.Y.C. Asbestos Litig. [Miller), 154 A.D.3d 441 (1st Dept., 2017), ly. denied 30 N.Y.3d 909 (Jan. 11, 2018) ("plaintiff's expert testimony was sufficient to establish that plaintiff's use of that grinder on automobile brake linings caused his exposure to asbestos dust in sufficient quantities to cause his mesothelioma"); Dominick v. Charles Millar & Son Co., 149 A.D.3d 1554 (4th Dept., 2017), rearg. denied, 151 A.D.3d 1970, ly. denied 30 N.Y.3d 907 (Dec. 14, 2017) ("plaintiff's expert opined that, ifa worker sees asbestos dust, that is a 'massive exposure ...capable of causing disease.' defendants' Contrary to the Millar contention, the expert's opinion, considered along with the rest of her testimony, was sufficient to establish specific causation"). Clearly, these decisions remain good law. 32. These decisions square perfectly with this Court's decisions denying summary judgment to Amtico on this exact issue. S_ee Brown, supra; Iserna, supra; Swanson, supra; Ciano, supra; Monaco, supra; accord Pogacnik v. A.O. Smith Water Prod. Co., 60 Misc. 3d 1208(A) (N.Y. Sup. Ct. 2018) (rolled sheet flooring manufacturer not entitled to summary judgment); Perillo v A.O. Smith Water Products. et al.,2018 WL 3115421 (Sup. Ct. NY Cty., June 20, 2018). 33. And of course, the reliability of an expert's opinion may be established by such opiñi0ñs..." "court Peoole v. Wesley, 83 N.Y.2d 417, 437 (1989). 12 of 18 FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 34. Here, in his affidavit, Dr. Holstein discusses at length, inter alia, the scientific, regulatory, and medical literature regarding the low dose of asbestos required to cause mesothelioma and the levels of asbestos fibers actually released during the use of the products at issue here, which show meaningful and hazardous levels of asbestos released when vinyl asbestos floor tiles are cut, snapped, and unpackaged (see Exhibit F annexed) (hereinafter Holstein Affidavit). He further noted that studies show that the asbestos incorporated into vinyl asbestos tilesas a constituent ingredient remains active and toxic, in direct contrast to the J_uni record. And he concludes that this scientific predicate, compared to the exposures the decedent suffered from Defendant's products on a regular and repeated basis during the 1970s, was a substantial contributing factor to the decedent's fatal mesothelioma (Holstein Affidavit at ¶ 18). This is causation method expressly approved by the Court of Appeals. S_ee Parker, supra at 449 ("comparison to the exposure levels of subjects of other studies could be helpful..."). 35. Thus, at best Defendant has proffered nothing more than competing expert evidence that raises issues of fact for the jury to decide. S_ee Hill v. Lorac House, Ins 135 parties' A.D.3d 659, 660 (1st Dept., 2016) ("In light of the competing expert affidavits, the issue of whether the infant's cognitive deficits were caused by exposure to lead, or by solely unrelated biological processes, is a question for a jury"). 36. Indeed, numerous reported studies in the scientific literature underscore that the manipulation of asbestos-containing vinyl floor tilescan release hazardous levels of asbestos. Dr. Holstein identified a December 1982, GCA Corporation (GCA/Technology Division) report that was prepeued for the Environnieñtal Protection Agency entitled "Analysis of Fiber Release from Products." Certain Asbestos (Holstein Affidavit at ¶ 16). Itprovides that activities such as snapping" cutting and "scoring and vinyl asbestos tiles created respirable asbestos fiber 13 of 18 FILED: NEW YORK COUNTY CLERK 12/12/2018 02:55 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 315 RECEIVED NYSCEF: 12/12/2018 concentrations that range as high as .267 fibers per cubic centimeter (fibers/cc), which exceeds the OSHA Permissible Exposure Level of 0.1 fibers/ce (Id.). These results are similar to a (PEL) more recent simulation identified by Dr. Holstein entitled "Scoring and Snapping Asbestos Tile,"