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FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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In Re: NEW YORK CITY : NYCAL
ASBESTOS LITIGATION : I.A.S. Part 13
: (Mendez, M.)
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This Document Relates To: : Index No.: 190280-2015
:
SHIRLEY JO GODFREY, Individually and as :
Executrix for the Estate of ROBERT C. GODFREY, :
: REPLY MEMORANDUM OF LAW
Plaintiff, : IN SUPPORT OF AMERICAN
: BILTRITE INC.’S MOTION FOR
- against - : SUMMARY JUDGMENT
:
AMERICAN BILTRITE INC., et al., :
:
Defendants. :
:
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INTRODUCTION
American Biltrite Inc. has made a prima facie case on both general causation and specific
causation. American Biltrite has demonstrated through the affidavits of Certified Industrial
Hygienist John Spencer, Pulmonologist Dr. James Crapo and Pathologist Dr. Stanley Geyer, that
the proper use of floor tile does not and could not cause pleural mesothelioma in the general
population, and that Mr. Godfrey’s alleged work with Amtico floor tile, with chrysotile asbestos
as a component, was not and could not have been a substantial contributing factor to his
development of pleural mesothelioma. See Exhibits C, E and F.
Because American Biltrite has made its prima facie case as to causation, the burden at
summary judgment shifts to the Plaintiff to produce evidentiary proof in admissible form of both
general and specific causation. Plaintiff has not met this burden.
Plaintiff still has offered no scientific evidence of general causation showing work with
floor tile, with chrysotile as a component, is capable of being a substantial contributing factor to
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the development of pleural mesothelioma in the general population. Despite decades’ worth of
research available into asbestos and asbestos related diseases, NO such association has been
found.
Without general causation, Plaintiff cannot satisfy specific causation. Without some
scientific standard by which plaintiff can do a comparative analysis, there can be no specific
causation. Plaintiff has failed to offer ANY evidence of a comparative analysis to quantify
(provide a dose assessment) or qualify (make a specific comparison to known exposure levels of
subjects of studies sufficient to show how the plaintiff’s exposure level related to those of the
study subjects) the levels of exposure to chrysotile Mr. Godfrey may have had from his alleged
work around Amtico tile.
Nor does Plaintiff present any case law that effectively ousts the Court of Appeals of
New York’s requirements for general and specific causation and the applicability to asbestos
litigation. See Parker v. Mobile Oil Corp., 7 N.Y.3d 434 [2006]; Cornell v. 360 West 51st Realty,
LLC, 22 N.Y.3d 762 [2014]; Sean R. ex rel. Debra R. v BMW of N. Am., LLC, 26 NY3d 801, 809
[2016]; and Matter of New York City Asbestos Litig., 2018 NY Slip Op 08059 [Ct App Nov. 27,
2018].
As American Biltrite has made a prima facie case as to causation, and Plaintiff has failed
to establish general or specific causation against American Biltrite, American Biltrite is entitled
to summary judgment in this case.
ARGUMENT IN REPLY
I. American Biltrite provides the proper products liability causation rule statement as
formulated by the New York Court of Appeals in Parker.
The New York Court of Appeals has unequivocally established that in order to have the
proper foundation for reception of a causation opinion into evidence at trial in a products liability
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case, a plaintiff’s proffered expert opinion must establish two things: 1) general causation and 2)
specific causation. See Parker, 7 N.Y.3d 434; Cornell, 22 N.Y.3d 762; and Sean R., 26 NY3d
801, 809.
First, they must establish general causation, i.e. the levels of exposure to the product at
issue with a specified toxin as a component sufficient to cause the disease at issue in the general
population. See id. And second, they must establish specific causation, i.e. that the plaintiff’s
actual exposure to the product at issue with a specified toxin as a component was at levels
sufficient to be a substantial contributing factor to the cause of the plaintiff’s disease. See id.
Indeed, this is the rule statement your Honor has already adopted. See In Re: NEW
YORK CITY ASBESTOS LITIGATION RUTH ANDREWS, as Executrix of the Estate of
JOSEPH GALASSO, Index No.: 190156-2014, NYSCEF DOC. NO. 234, attached hereto as
Exhibit H.
Plaintiff takes issue with the formulation for general causation and argues they are only
required to show that “the toxin is capable of causing the particular illness,” to establish general
causation. See Plaintiff’s Affirmation in Opposition at ¶21-23. Plaintiff’s position completely
ignores that various products will have various levels of risk. See Gideon v. Johns-Manville Sales
Corp., 761 F.2d 1129, 1145 (5th Cir. 1985) ("[A]ll asbestos-containing products cannot be
lumped together in determining their dangerousness. Proof that asbestos insulation products are
dangerous or defective does not satisfy the burden of proving that products used for other
purposes, such as asbestos textiles with encapsulated asbestos fibers, are dangerous.") (emphasis
in original).
An initial reading of the ruling in Parker will support Plaintiff’s interpretation. Parker, 7
N.Y.3d at 448. However, a complete reading of Parker shows that the Court of Appeals goes on
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to explain that when the toxin is a component of the product, the focus must be placed on the
product itself. See id.
Parker, and the cases the Court of Appeals relied on in Parker (Wright and McClain),
make it clear that in order for an expert to have the proper foundation for an opinion on general
causation they must have product specific and generally accepted scientific reliance materials
which utilize acceptable methodology. See id.
A. The New York Court of Appeals has unequivocally established that a Plaintiff
must establish general causation by showing the levels of exposure to the
product at issue with a specified toxin as a component sufficient to cause the
disease at issue in the general population.
Recall that in Parker, Dr. Landrigan (one of plaintiff’s experts) offered both general and
specific causation opinions. Id. at 444. Regarding general causation, Dr. Landrigan cited several
studies that linked benzene exposure to AML including a NIOSH study of rubber plant workers
that found an increased cumulative benzene exposure and leukemia rates and several studies that
found an increased risk of leukemia in petroleum refinery workers specifically those exposed to
benzene. Id. Clearly these regard general causation.
Regarding these opinions, the Court of Appeals states “Landrigan concentrates on the
relationship between exposure to benzene and the risk of developing AML - an association that
is not in dispute… [k]ey to this litigation is the relationship, if any, between exposure to gasoline
containing benzene as a component and AML.” Id. at 449-450 (emphasis in original). This was
not a statement relegated solely to specific causation as Plaintiff would have this Court believe.
The Court’s further reasoning shows its statement regarding the relationship between
gasoline and AML was applicable to general causation. The Court reasoned, “Landrigan fails to
make this connection (between gasoline and AML) perhaps because, as defendants claim, no
significant association has been found between gasoline exposure and AML.” Id. at 450. The
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Court says nothing here about the connection between gasoline exposure levels and the
Plaintiff’s AML, rather they find there is a lack of connection generally. Moreover, the Court
reasoned that, “Plaintiff’s experts were unable to identify a single epidemiological study finding
an increased risk of AML as a result of gasoline.” Clearly the Court was not talking about the
types of quantitative or qualitative evidence it identified to be used to establish specific causation
through a comparative analysis, rather they are talking about epidemiological studies showing a
connection between gasoline and AML, which clearly would be relied on to establish general
causation.
Moreover, the two cases Parker relied on in formulation of the rule statement, Wright and
McClain, clearly and unequivocally call for a product specific focus to establish general
causation.
B. The United States Court of Appeals, Eighth Circuit in Wright unequivocally
establishes that a Plaintiff must establish general causation by showing the levels
of exposure to the product at issue with a specified toxin as a component
sufficient to cause the disease at issue in the general population.
In Wright, defendant Willamette manufactured fiberboard by mixing pine wood shavings
and pulp with a formaldehyde resin. Wright v Willamette Indus., Inc., 91 F3d 1105, 1106 [8th Cir
1996].
The 8th Circuit reasoned that a “plaintiff in a toxic tort case must prove the levels of
exposure that are hazardous to human beings generally as well as the plaintiff's actual level of
exposure to the defendant's toxic substance before he or she may recover,” i.e. plaintiff must
establish both general and specific causation. Id. at 1106.
Regarding both general and specific causation, the court clearly opined that the inquiry
must be product specific:
(On general causation) Dr. Fred Fowler, an industrial hygienist,
and Dr. Jimmie Valentine, a pharmacologist, did offer testimony
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about the levels of gaseous formaldehyde that might be expected to
cause symptoms like the ones that plaintiffs claim to have
experienced. But the Wrights do not claim to have been injured
from breathing gaseous formaldehyde, and they make no reference
to any studies that reveal the levels of exposure to wood fibers
impregnated with formaldehyde that are likely to produce adverse
consequences.
(On Specific Causation) It is true that Dr. Frank Peretti, after a
great deal of prodding, testified that the Wrights' complaints were
more probably than not related to exposure to formaldehyde, but
that opinion was not based on any knowledge about what amounts
of wood fibers impregnated with formaldehyde involve an
appreciable risk of harm to human beings who breathe them.
Id. at 1107–08 (emphasis added).
Thus, the Eighth Circuit in Wright unequivocally establishes that a Plaintiff must
establish general causation by showing the levels of exposure to the product at issue with a
specified toxin as a component sufficient to cause the disease at issue in the general population.
See id. The Eleventh Circuit follows the same reasoning.
C. The United States Court of Appeals, Eleventh Circuit in McClain unequivocally
establishes that a Plaintiff must establish general causation by showing the levels
of exposure to the product at issue sufficient to cause the disease at issue in the
general population.
In McClain, plaintiffs alleged injury after taking Metabolife 356, an appetite suppressant
containing ephedrine and caffeine. McClain v Metabolife Intern., Inc., 401 F3d 1233, 1236 [11th
Cir 2005]. The Plaintiffs contended that the toxic combination of ephedrine and caffeine in the
Metabolife 356 they ingested harmed them. Id. at 1237. The court held that plaintiffs’ experts
had to offer reliable opinions about Metabolife’s general toxicity. Id. at 1239.
Regarding general causation, the court found that plaintiffs’ expert “failed to show that
Metabolife 356 causes either strokes or heart attacks” and that “the medical literature does not
support that [the] opinion [that Metabolife causes such ailments].” Id. at 1242. Throughout the
opinion, the court clearly defines the inquiry on general causation as one focusing on the
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product, Metabolife 356, and its ability to cause disease; not the individual components of the
product (ephedrine and caffeine) and their ability to increase the risk of harm outside of the
product. See id.
Regarding mesothelioma being deemed a sentinel disease of exposure to asbestos
containing material, it is precisely our point that that may have been the case early in asbestos
litigation when manufacturers of thermal insulation products, many of which contained
extraordinarily high amounts of friable amphibole asbestos, dominated the litigation. See In re
Garlock Sealing Tech., LLC, 504 BR 71, 83 [Bankr WDNC 2014].
Plaintiff now still attempts to establish causation for non-friable products containing low
dose chrysotile asbestos encapsulated in a resin matrix using the same studies and methodology
used to establish causation as to the friable, high dose amphibole products. Essentially, they are
arguing that because high doses of potassium cause death, bananas too are deadly. The science
does not support their position. McClain, like Parker and Wright, clearly shows that the focus
must be on the product itself.
D. The New York Court of Appeals and United States Court of Appeals for the
Eighth and Eleventh Circuits unequivocally establish that a Plaintiff must
establish general causation by showing the levels of exposure to the product at
issue sufficient to cause the disease at issue in the general population.
Clearly, in products liability cases there are instances when the product itself is the toxin,
when the toxin is a component of the product, and when multiple toxins are combined within a
single product. It is common sense that varying types of products, even containing the same
toxin or toxins, will have varying levels of risk. The focus has to be on the product for general
causation as Parker and the decisions it relied on have found. In fact, Plaintiff, in her attempt to
distinguish Juni from the case at bar, highlights our position that incorporation of a toxin into a
product impacts the toxins ability to cause disease as the First Department noted there, “more
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than 99% of the dust released from the used brakes was no longer respirable asbestos fibers and
instead converted to fosterite.” Juni v. A.O. Smith Water Products Co., et al., 148 A.D.3d 233
[1st Dept 2017]. A toxin focus ignores the varying effects the product itself or product use has on
the ability of the toxin to cause disease.
Indeed, the Court of Appeals recently upheld the First Departments decision Juni, and the
concurring opinions further show that the inquiry must be product (not toxin) focused. Matter of
New York City Asbestos Litig., 2018 NY Slip Op 08059 [Ct App Nov. 27, 2018] (FAHEY, J.
[concurring]: “plaintiffs' proof failed to establish, by legally sufficient evidence, a connection
between defendant Ford Motor Company's products and decedent's exposure to
asbestos.”)(emphasis added) and (WILSON, J. [concurring]: “Here, in my view, there was
simply a gap in proof as to the toxicity of the products at issue.”)(emphasis added).
Causation in a products liability negligence action is indeed a “product-focused” inquiry
and must be so.
As will be further delineated below, Plaintiff’s experts here have still failed to establish
general or specific causation against American Biltrite. While American Biltrite has made a
prima facie showing on such grounds. As such, American Biltrite is entitled to summary
judgment in this case.
II. American Biltrite has made a prima facie case that the proper use of floor tile does
not and could not cause pleural mesothelioma in the general population, and that
Mr. Godfrey’s alleged work around Amtico floor tile, with chrysotile asbestos as a
component, was not and could not have been a substantial contributing factor to his
development of pleural mesothelioma.
American Biltrite has demonstrated through the affidavits of Certified Industrial
Hygienist John Spencer, Pulmonologist Dr. James Crapo, and Pathologist Dr. Stanley Geyer that
the proper use of floor tile does not and could not cause pleural mesothelioma in the general
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population, and that Mr. Godfrey’s alleged work around Amtico floor tile, with chrysotile
asbestos as a component, was not and could not have been a substantial contributing factor to his
development of pleural mesothelioma. See Exhibits C, E and F.
A. Mr. Spencer’s report offers admissible evidence that any exposure to airborne
asbestos fibers from the manipulation of floor tile, and specifically Amtico vinyl
asbestos tile in the manners Mr. Godfrey testified to, would have been negligible, if
any at all.
Spencer’s Report offers admissible evidence that in part makes American Biltrite’s prima
facie case as to both general and specific causation.
i. Mr. Spencer on General Causation – Mr. Spencer’s Report offers
admissible evidence that any exposure to airborne asbestos fibers
from the manipulation of floor tile would have bene negligible, if any
at all.
Recall from American Biltrite’s Memorandum of Law in Support of Summary Judgment
that Mr. Spencer explains that floor tiles are non-friable, encapsulated products, and an exposure
to airborne asbestos fibers from the manipulation of floor tiles, ifany at all, would have been
negligible, below both historical and today’s occupational health standards and guidelines, and
would not have been considered by OSHA or EPA to present a significant health risk. Exhibit C
at 14 of report.
Mr. Spencer relies not only on his company’s tests of actual Amtico vinyl asbestos tiles, a
study which he was personally involved in, to provide the proper foundation for his opinion, but
also other relevant floor tile study data. See id. at 8-11 of report.
ii. Mr. Spencer on Specific Causation - Mr. Godfrey’s alleged work
around Amtico floor tile, with chrysotile asbestos as a component,
would have given him a cumulative asbestos exposure at an amount 1)
indistinguishable from some lifetime cumulative exposures to ambient
asbestos, 2) well below a working lifetime at the OSHA and WHO
permissible exposure limits, and 3) also well below lifetime cumulative
exposure at the USEPA clearance limit following an asbestos
abatement action.
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Recall from American Biltrite’s Memorandum of Law in Support of Summary Judgment
that Mr. Spencer calculated the estimated time and frequency of work around Amtico tile in light
of Mr. Godfrey’s testimony regarding Amtico tile and in accordance with his overall testimony
and accounting for every manner in which Mr. Godfrey testified to being around the product. Id.
at 12-13 of report. Mr. Godfrey’s exposure to asbestos would be less than 0.000046 f/cc-yr (that
is a range from 0 to 0.000046), an amount 1) indistinguishable from most lifetime cumulative
exposures to ambient asbestos, 2) well below a working lifetime at the OSHA and WHO
permissible exposure limits, and 3) also well below lifetime cumulative exposure at the USEPA
clearance limit following an asbestos abatement action. Id.
B. Dr. Crapo’s Report shows that the proper use of floor tile does not and could not
cause pleural mesothelioma in the general population, and that Mr. Godfrey’s
alleged work with Amtico floor tile, with chrysotile asbestos as a component, was
not and could not have been a substantial contributing factor to his development
of pleural mesothelioma.
As it made clear from the above, Mr. Spencer provides evidence of fiber release (or rather
lack thereof) from floor tile in general and specifically from Amtico vinyl asbestos floor tiles. Dr.
Crapo then uses that information as well as his own independent review of scientific materials to
provide the proper foundation for his expert opinion that potential exposures to floor tile, with
chrysotile asbestos as a component, does not cause pleural mesothelioma and did not and could
not cause Mr. Godfrey’s pleural mesothelioma.
i. Dr. Crapo on General Causation – the proper use of floor tile does not and
could not cause pleural mesothelioma in the general population.
Specifically regarding Amtico tiles and taking Mr. Spencer’s report of estimated dose
into account, Dr. Crapo explains, in part, why floor tile with chrysotile asbestos as a component
cannot cause pleural mesothelioma, by explaining the nature of chrysotile asbestos:
In contrast to amphibole forms of asbestos, chrysotile asbestos has
a much lower potential to contribute to the causation of malignant
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mesothelioma. Human mesothelioma has only been associated
with chrysotile exposures under conditions of chronic, high level
exposures and where there was a co-exposure to an amphibole.
Exhibit F at 3 of report.
ii. Dr. Crapo on Specific Causation – Mr. Godfrey’s alleged work around
Amtico floor tile, with chrysotile asbestos as a component, was not and could
not have been a substantial contributing factor to his development of pleural
mesothelioma.
Specifically regarding floor tile, Dr. Crapo concludes, “Products that contain chrysotile in
a resin matrix, and which do not result in substantial fiber release, such as vinyl asbestos floor
tiles, would not create or contribute to risk for development of an asbestos related disease…
[and] Mr. Godfrey’s work with floor tiles sold by American Biltrite would not have contributed
to his risk for development of a pleural mesothelioma.” Id. (emphasis added).
Dr. Crapo unequivocally states that Amtico floor tile did not cause Mr. Godfrey’s pleural
mesothelioma.
Dr. Crapo also takes his opinion a step further and offers a scientifically acceptable
alternative causation for Mr. Godfrey’s pleural mesothelioma. See Exhibit D. Dr. Crapo explains
that it was Mr. Godfrey’s probable exposure to amosite (amphibole) asbestos in thermal
insulation from his history of doing construction and renovation work and being present in
buildings where pipe insulation was being removed that was the most likely cause of his
malignant mesothelioma, and that floor tile, with chrysotile as a low dose minority ingredient
encapsulated in a resin matrix, did not and could not contribute to his development of
mesothelioma. See id.
Thus, Dr. Crapo’s report is an opinion specifically directed at floor tile containing
chrysotile, the product at issue in this products liability action. See Exhibit F. Dr. Crapo has
presented evidence in admissible form, that floor tile when used correctly does not cause pleural
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mesothelioma. This, coupled with Mr. Spencer’s report, established American Biltrite’s prima
facie case on general causation, that the proper use of floor tile does not and could not cause
pleural mesothelioma in the general population.
C. Dr. Geyer’s report also shows that the proper use of floor tile does not and could not
cause pleural mesothelioma in the general population and that Mr. Godfrey’s
alleged work around Amtico floor tile, with chrysotile asbestos as a component, was
not and could not have been a substantial contributing factor to his development of
pleural mesothelioma.
Dr. Geyer uses the information provided by Mr. Spencer as well as his own independent
review of scientific materials, including other floor tile studies, to provide the proper foundation
for his expert opinion that potential exposures to floor tile, with chrysotile asbestos as a
component, does not cause pleural mesothelioma and Amtico did not and could not cause Mr.
Godfrey’s pleural mesothelioma.
i. Dr. Geyer on General Causation – the proper use of floor tile does not and
could not cause pleural mesothelioma in the general population.
Dr. Geyer analyzed and provides citation to many studies that report an absence of an
elevated mesothelioma rate in cohorts that would be expected to show an elevated rate if
chrysotile fibers were a mesothelioma-causing agent. Exhibit E at 4 of report. Dr. Geyer states
that “published medical literature demonstrates that chrysotile asbestos does not cause malignant
mesothelioma, unless a high and persistent chrysotile exposure occurs along with a significant
contamination of the chrysotile by an amphibole-type of asbestos.” Id.
Thus, Dr. Geyer has presented evidence in admissible form, that floor tile when used
correctly does not cause pleural mesothelioma. This, coupled with Mr. Spencer’s report and Dr.
Crapo’s report, established American Biltrite’s prima facie case on general causation, that the
proper use of floor tile does not and could not cause pleural mesothelioma in the general
population.
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ii. Dr. Geyer on Specific Causation – Mr. Godfrey’s alleged work around
Amtico floor tile, with chrysotile asbestos as a component, was not and could
not have been a substantial contributing factor to his development of pleural
mesothelioma.
Dr. Geyer concludes to a reasonable degree of medical certainty:
Because the chrysotile fibers in Amtico vinyl asbestos floor tiles
were firmly embedded in a resin matrix that prevented or limited
the escape of free fibers into workers’ breathing zones, because the
defense mechanisms of the upper airways and the lungs limit
exposure and biopersistence of chrysotile asbestos in lungs, and
because published medical literature demonstrates that chrysotile
asbestos did not cause malignant mesothelioma, unless a high and
persistent chrysotile exposure occurred along with a significant
contamination of the chrysotile by an amphibole-type of asbestos,
Robert Godfrey’s work with or in the vicinity of Amtico floor tiles
played no role in the cause of his reported malignant
mesothelioma.
Id. (emphasis added).
Thus, American Biltrite has demonstrated through the affidavits of Certified Industrial
Hygienist John Spencer, Pulmonologist Dr. James Crapo and Pathologist Dr. Stan Geyer that the
proper use of floor tile does not and could not cause pleural mesothelioma in the general
population, and that Mr. Godfrey’s alleged work around Amtico floor tile, with chrysotile
asbestos as a component, was not and could not have been a substantial contributing factor to his
development of pleural mesothelioma.
III. Plaintiff, on the other hand, has failed to establish general causation, i.e. the levels at
which work with floor tile, containing chrysotile asbestos as a component, is capable
of causing pleural mesothelioma in the general population; and Plaintiff has also
failed to establish specific causation, i.e. offer a specific comparative analysis
sufficient to show that Mr. Godfrey’s alleged work around Amtico Floor Tile, with
chrysotile asbestos as a component, was a substantial contributing factor to his
development of pleural mesothelioma.
As delineated above, American Biltrite has made a prima facie case as to both general and
specific causation. Once such a prima facie showing is made, the non-movant “must show facts
sufficient to require a trial and ‘must make his showing by producing evidentiary proof in
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admissible form.’” RCA Corp. v. American Standards Testing Bureau, Inc., 121 A.D.2d 890,
503 N.Y.S.2d 805, 806 (1st Dept. 1986) (quoting Friends of Animals v. Associated Fur
Manufacturers, 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (N.Y. 1979)) (emphasis added). Stated
another way, plaintiff must then show "facts and conditions from which the defendant's liability
may be reasonably inferred.” Reid v Georgia- Pacific Corp., 212 AD2d 462, 463 [1st Dept
1995].
Thus, as American Biltrite has made a prima facie showing as to both general and specific
causation both here and in their initial motion, the burden shifted to Plaintiffs to raise a triable
issue of fact with respect to general and specific causation; and they have stillfailed to do so.
Cornell, 22 NY3d at 782. To establish an issue of fact, Plaintiff must first offer evidence
establishing general causation, i.e. the levels at which work with floor tile, containing chrysotile
asbestos as a component, is capable of causing pleural mesothelioma. See Parker, 7 N.Y.3d 434;
Cornell, 22 N.Y.3d 762; and Sean R., 26 NY3d 801. Second, Plaintiff must provide a specific
comparative assessment to establish specific causation, i.e. that Mr. Godfrey’s alleged work
around Amtico Floor Tile, with chrysotile asbestos as a component, was a substantial
contributing factor to his development of pleural mesothelioma. See id.
The Court of Appeals of New York has held that Summary Judgment is proper when a
plaintiff fails to meet the causation standard set forth in Parker. In Cornell, the plaintiff claimed
personal injuries from exposure to dampness and mold in an apartment formerly owned by the
defendant. See Cornell, 22 N.Y.3d 762. The defendant moved for summary judgment, 10
asserting plaintiff had failed to raise a triable issue of fact since her expert did not establish that
the mold in her apartment caused her injuries. Id. at 767-68.
Reversing the lower court’s decision and granting defendant’s motion for summary
judgment, the Court of Appeals of New York held that the plaintiff had not raised a triable issue
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of fact with respect to general causation by asserting the mere “association” between the
environment and the plaintiff’s medical conditions, as it did “not establish that the relevant
scientific community generally accepts” that itcaused the adverse health effects. Id. at 783.
Moreover, citing Parker, the court noted that plaintiff’s expert “did not identify the specific
disease-causing agent to which Cornell was allegedly exposed other than to vaguely describe it
as ‘an unusual mixture of atypical microbial contaminants,’” and made “no effort to quantify her
level of exposure to this ‘unusual mixture.’” Id. at 784. The court also noted tha
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FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - -------------------------------------------------------------------- X In Re: NEW YORK CITY : NYCAL ASBESTOS LITIGATION : I.A.S. Part 13 : (Mendez, M.) - -------------------------------------------------------------------- X This Document Relates To: : Index No.: 190280-2015 : SHIRLEY JO GODFREY, Individually and as : Executrix for the Estate of ROBERT C. GODFREY, : : REPLY MEMORANDUM OF LAW Plaintiff, : IN SUPPORT OF AMERICAN : BILTRITE INC.’S MOTION FOR - against - : SUMMARY JUDGMENT : AMERICAN BILTRITE INC., et al., : : Defendants. : : -- ------------------------------------------------------------------- X INTRODUCTION American Biltrite Inc. has made a prima facie case on both general causation and specific causation. American Biltrite has demonstrated through the affidavits of Certified Industrial Hygienist John Spencer, Pulmonologist Dr. James Crapo and Pathologist Dr. Stanley Geyer, that the proper use of floor tile does not and could not cause pleural mesothelioma in the general population, and that Mr. Godfrey’s alleged work with Amtico floor tile, with chrysotile asbestos as a component, was not and could not have been a substantial contributing factor to his development of pleural mesothelioma. See Exhibits C, E and F. Because American Biltrite has made its prima facie case as to causation, the burden at summary judgment shifts to the Plaintiff to produce evidentiary proof in admissible form of both general and specific causation. Plaintiff has not met this burden. Plaintiff still has offered no scientific evidence of general causation showing work with floor tile, with chrysotile as a component, is capable of being a substantial contributing factor to 1 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 the development of pleural mesothelioma in the general population. Despite decades’ worth of research available into asbestos and asbestos related diseases, NO such association has been found. Without general causation, Plaintiff cannot satisfy specific causation. Without some scientific standard by which plaintiff can do a comparative analysis, there can be no specific causation. Plaintiff has failed to offer ANY evidence of a comparative analysis to quantify (provide a dose assessment) or qualify (make a specific comparison to known exposure levels of subjects of studies sufficient to show how the plaintiff’s exposure level related to those of the study subjects) the levels of exposure to chrysotile Mr. Godfrey may have had from his alleged work around Amtico tile. Nor does Plaintiff present any case law that effectively ousts the Court of Appeals of New York’s requirements for general and specific causation and the applicability to asbestos litigation. See Parker v. Mobile Oil Corp., 7 N.Y.3d 434 [2006]; Cornell v. 360 West 51st Realty, LLC, 22 N.Y.3d 762 [2014]; Sean R. ex rel. Debra R. v BMW of N. Am., LLC, 26 NY3d 801, 809 [2016]; and Matter of New York City Asbestos Litig., 2018 NY Slip Op 08059 [Ct App Nov. 27, 2018]. As American Biltrite has made a prima facie case as to causation, and Plaintiff has failed to establish general or specific causation against American Biltrite, American Biltrite is entitled to summary judgment in this case. ARGUMENT IN REPLY I. American Biltrite provides the proper products liability causation rule statement as formulated by the New York Court of Appeals in Parker. The New York Court of Appeals has unequivocally established that in order to have the proper foundation for reception of a causation opinion into evidence at trial in a products liability 2 2 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 case, a plaintiff’s proffered expert opinion must establish two things: 1) general causation and 2) specific causation. See Parker, 7 N.Y.3d 434; Cornell, 22 N.Y.3d 762; and Sean R., 26 NY3d 801, 809. First, they must establish general causation, i.e. the levels of exposure to the product at issue with a specified toxin as a component sufficient to cause the disease at issue in the general population. See id. And second, they must establish specific causation, i.e. that the plaintiff’s actual exposure to the product at issue with a specified toxin as a component was at levels sufficient to be a substantial contributing factor to the cause of the plaintiff’s disease. See id. Indeed, this is the rule statement your Honor has already adopted. See In Re: NEW YORK CITY ASBESTOS LITIGATION RUTH ANDREWS, as Executrix of the Estate of JOSEPH GALASSO, Index No.: 190156-2014, NYSCEF DOC. NO. 234, attached hereto as Exhibit H. Plaintiff takes issue with the formulation for general causation and argues they are only required to show that “the toxin is capable of causing the particular illness,” to establish general causation. See Plaintiff’s Affirmation in Opposition at ¶21-23. Plaintiff’s position completely ignores that various products will have various levels of risk. See Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1145 (5th Cir. 1985) ("[A]ll asbestos-containing products cannot be lumped together in determining their dangerousness. Proof that asbestos insulation products are dangerous or defective does not satisfy the burden of proving that products used for other purposes, such as asbestos textiles with encapsulated asbestos fibers, are dangerous.") (emphasis in original). An initial reading of the ruling in Parker will support Plaintiff’s interpretation. Parker, 7 N.Y.3d at 448. However, a complete reading of Parker shows that the Court of Appeals goes on 3 3 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 to explain that when the toxin is a component of the product, the focus must be placed on the product itself. See id. Parker, and the cases the Court of Appeals relied on in Parker (Wright and McClain), make it clear that in order for an expert to have the proper foundation for an opinion on general causation they must have product specific and generally accepted scientific reliance materials which utilize acceptable methodology. See id. A. The New York Court of Appeals has unequivocally established that a Plaintiff must establish general causation by showing the levels of exposure to the product at issue with a specified toxin as a component sufficient to cause the disease at issue in the general population. Recall that in Parker, Dr. Landrigan (one of plaintiff’s experts) offered both general and specific causation opinions. Id. at 444. Regarding general causation, Dr. Landrigan cited several studies that linked benzene exposure to AML including a NIOSH study of rubber plant workers that found an increased cumulative benzene exposure and leukemia rates and several studies that found an increased risk of leukemia in petroleum refinery workers specifically those exposed to benzene. Id. Clearly these regard general causation. Regarding these opinions, the Court of Appeals states “Landrigan concentrates on the relationship between exposure to benzene and the risk of developing AML - an association that is not in dispute… [k]ey to this litigation is the relationship, if any, between exposure to gasoline containing benzene as a component and AML.” Id. at 449-450 (emphasis in original). This was not a statement relegated solely to specific causation as Plaintiff would have this Court believe. The Court’s further reasoning shows its statement regarding the relationship between gasoline and AML was applicable to general causation. The Court reasoned, “Landrigan fails to make this connection (between gasoline and AML) perhaps because, as defendants claim, no significant association has been found between gasoline exposure and AML.” Id. at 450. The 4 4 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 Court says nothing here about the connection between gasoline exposure levels and the Plaintiff’s AML, rather they find there is a lack of connection generally. Moreover, the Court reasoned that, “Plaintiff’s experts were unable to identify a single epidemiological study finding an increased risk of AML as a result of gasoline.” Clearly the Court was not talking about the types of quantitative or qualitative evidence it identified to be used to establish specific causation through a comparative analysis, rather they are talking about epidemiological studies showing a connection between gasoline and AML, which clearly would be relied on to establish general causation. Moreover, the two cases Parker relied on in formulation of the rule statement, Wright and McClain, clearly and unequivocally call for a product specific focus to establish general causation. B. The United States Court of Appeals, Eighth Circuit in Wright unequivocally establishes that a Plaintiff must establish general causation by showing the levels of exposure to the product at issue with a specified toxin as a component sufficient to cause the disease at issue in the general population. In Wright, defendant Willamette manufactured fiberboard by mixing pine wood shavings and pulp with a formaldehyde resin. Wright v Willamette Indus., Inc., 91 F3d 1105, 1106 [8th Cir 1996]. The 8th Circuit reasoned that a “plaintiff in a toxic tort case must prove the levels of exposure that are hazardous to human beings generally as well as the plaintiff's actual level of exposure to the defendant's toxic substance before he or she may recover,” i.e. plaintiff must establish both general and specific causation. Id. at 1106. Regarding both general and specific causation, the court clearly opined that the inquiry must be product specific: (On general causation) Dr. Fred Fowler, an industrial hygienist, and Dr. Jimmie Valentine, a pharmacologist, did offer testimony 5 5 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 about the levels of gaseous formaldehyde that might be expected to cause symptoms like the ones that plaintiffs claim to have experienced. But the Wrights do not claim to have been injured from breathing gaseous formaldehyde, and they make no reference to any studies that reveal the levels of exposure to wood fibers impregnated with formaldehyde that are likely to produce adverse consequences. (On Specific Causation) It is true that Dr. Frank Peretti, after a great deal of prodding, testified that the Wrights' complaints were more probably than not related to exposure to formaldehyde, but that opinion was not based on any knowledge about what amounts of wood fibers impregnated with formaldehyde involve an appreciable risk of harm to human beings who breathe them. Id. at 1107–08 (emphasis added). Thus, the Eighth Circuit in Wright unequivocally establishes that a Plaintiff must establish general causation by showing the levels of exposure to the product at issue with a specified toxin as a component sufficient to cause the disease at issue in the general population. See id. The Eleventh Circuit follows the same reasoning. C. The United States Court of Appeals, Eleventh Circuit in McClain unequivocally establishes that a Plaintiff must establish general causation by showing the levels of exposure to the product at issue sufficient to cause the disease at issue in the general population. In McClain, plaintiffs alleged injury after taking Metabolife 356, an appetite suppressant containing ephedrine and caffeine. McClain v Metabolife Intern., Inc., 401 F3d 1233, 1236 [11th Cir 2005]. The Plaintiffs contended that the toxic combination of ephedrine and caffeine in the Metabolife 356 they ingested harmed them. Id. at 1237. The court held that plaintiffs’ experts had to offer reliable opinions about Metabolife’s general toxicity. Id. at 1239. Regarding general causation, the court found that plaintiffs’ expert “failed to show that Metabolife 356 causes either strokes or heart attacks” and that “the medical literature does not support that [the] opinion [that Metabolife causes such ailments].” Id. at 1242. Throughout the opinion, the court clearly defines the inquiry on general causation as one focusing on the 6 6 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 product, Metabolife 356, and its ability to cause disease; not the individual components of the product (ephedrine and caffeine) and their ability to increase the risk of harm outside of the product. See id. Regarding mesothelioma being deemed a sentinel disease of exposure to asbestos containing material, it is precisely our point that that may have been the case early in asbestos litigation when manufacturers of thermal insulation products, many of which contained extraordinarily high amounts of friable amphibole asbestos, dominated the litigation. See In re Garlock Sealing Tech., LLC, 504 BR 71, 83 [Bankr WDNC 2014]. Plaintiff now still attempts to establish causation for non-friable products containing low dose chrysotile asbestos encapsulated in a resin matrix using the same studies and methodology used to establish causation as to the friable, high dose amphibole products. Essentially, they are arguing that because high doses of potassium cause death, bananas too are deadly. The science does not support their position. McClain, like Parker and Wright, clearly shows that the focus must be on the product itself. D. The New York Court of Appeals and United States Court of Appeals for the Eighth and Eleventh Circuits unequivocally establish that a Plaintiff must establish general causation by showing the levels of exposure to the product at issue sufficient to cause the disease at issue in the general population. Clearly, in products liability cases there are instances when the product itself is the toxin, when the toxin is a component of the product, and when multiple toxins are combined within a single product. It is common sense that varying types of products, even containing the same toxin or toxins, will have varying levels of risk. The focus has to be on the product for general causation as Parker and the decisions it relied on have found. In fact, Plaintiff, in her attempt to distinguish Juni from the case at bar, highlights our position that incorporation of a toxin into a product impacts the toxins ability to cause disease as the First Department noted there, “more 7 7 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 than 99% of the dust released from the used brakes was no longer respirable asbestos fibers and instead converted to fosterite.” Juni v. A.O. Smith Water Products Co., et al., 148 A.D.3d 233 [1st Dept 2017]. A toxin focus ignores the varying effects the product itself or product use has on the ability of the toxin to cause disease. Indeed, the Court of Appeals recently upheld the First Departments decision Juni, and the concurring opinions further show that the inquiry must be product (not toxin) focused. Matter of New York City Asbestos Litig., 2018 NY Slip Op 08059 [Ct App Nov. 27, 2018] (FAHEY, J. [concurring]: “plaintiffs' proof failed to establish, by legally sufficient evidence, a connection between defendant Ford Motor Company's products and decedent's exposure to asbestos.”)(emphasis added) and (WILSON, J. [concurring]: “Here, in my view, there was simply a gap in proof as to the toxicity of the products at issue.”)(emphasis added). Causation in a products liability negligence action is indeed a “product-focused” inquiry and must be so. As will be further delineated below, Plaintiff’s experts here have still failed to establish general or specific causation against American Biltrite. While American Biltrite has made a prima facie showing on such grounds. As such, American Biltrite is entitled to summary judgment in this case. II. American Biltrite has made a prima facie case that the proper use of floor tile does not and could not cause pleural mesothelioma in the general population, and that Mr. Godfrey’s alleged work around Amtico floor tile, with chrysotile asbestos as a component, was not and could not have been a substantial contributing factor to his development of pleural mesothelioma. American Biltrite has demonstrated through the affidavits of Certified Industrial Hygienist John Spencer, Pulmonologist Dr. James Crapo, and Pathologist Dr. Stanley Geyer that the proper use of floor tile does not and could not cause pleural mesothelioma in the general 8 8 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 population, and that Mr. Godfrey’s alleged work around Amtico floor tile, with chrysotile asbestos as a component, was not and could not have been a substantial contributing factor to his development of pleural mesothelioma. See Exhibits C, E and F. A. Mr. Spencer’s report offers admissible evidence that any exposure to airborne asbestos fibers from the manipulation of floor tile, and specifically Amtico vinyl asbestos tile in the manners Mr. Godfrey testified to, would have been negligible, if any at all. Spencer’s Report offers admissible evidence that in part makes American Biltrite’s prima facie case as to both general and specific causation. i. Mr. Spencer on General Causation – Mr. Spencer’s Report offers admissible evidence that any exposure to airborne asbestos fibers from the manipulation of floor tile would have bene negligible, if any at all. Recall from American Biltrite’s Memorandum of Law in Support of Summary Judgment that Mr. Spencer explains that floor tiles are non-friable, encapsulated products, and an exposure to airborne asbestos fibers from the manipulation of floor tiles, ifany at all, would have been negligible, below both historical and today’s occupational health standards and guidelines, and would not have been considered by OSHA or EPA to present a significant health risk. Exhibit C at 14 of report. Mr. Spencer relies not only on his company’s tests of actual Amtico vinyl asbestos tiles, a study which he was personally involved in, to provide the proper foundation for his opinion, but also other relevant floor tile study data. See id. at 8-11 of report. ii. Mr. Spencer on Specific Causation - Mr. Godfrey’s alleged work around Amtico floor tile, with chrysotile asbestos as a component, would have given him a cumulative asbestos exposure at an amount 1) indistinguishable from some lifetime cumulative exposures to ambient asbestos, 2) well below a working lifetime at the OSHA and WHO permissible exposure limits, and 3) also well below lifetime cumulative exposure at the USEPA clearance limit following an asbestos abatement action. 9 9 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 Recall from American Biltrite’s Memorandum of Law in Support of Summary Judgment that Mr. Spencer calculated the estimated time and frequency of work around Amtico tile in light of Mr. Godfrey’s testimony regarding Amtico tile and in accordance with his overall testimony and accounting for every manner in which Mr. Godfrey testified to being around the product. Id. at 12-13 of report. Mr. Godfrey’s exposure to asbestos would be less than 0.000046 f/cc-yr (that is a range from 0 to 0.000046), an amount 1) indistinguishable from most lifetime cumulative exposures to ambient asbestos, 2) well below a working lifetime at the OSHA and WHO permissible exposure limits, and 3) also well below lifetime cumulative exposure at the USEPA clearance limit following an asbestos abatement action. Id. B. Dr. Crapo’s Report shows that the proper use of floor tile does not and could not cause pleural mesothelioma in the general population, and that Mr. Godfrey’s alleged work with Amtico floor tile, with chrysotile asbestos as a component, was not and could not have been a substantial contributing factor to his development of pleural mesothelioma. As it made clear from the above, Mr. Spencer provides evidence of fiber release (or rather lack thereof) from floor tile in general and specifically from Amtico vinyl asbestos floor tiles. Dr. Crapo then uses that information as well as his own independent review of scientific materials to provide the proper foundation for his expert opinion that potential exposures to floor tile, with chrysotile asbestos as a component, does not cause pleural mesothelioma and did not and could not cause Mr. Godfrey’s pleural mesothelioma. i. Dr. Crapo on General Causation – the proper use of floor tile does not and could not cause pleural mesothelioma in the general population. Specifically regarding Amtico tiles and taking Mr. Spencer’s report of estimated dose into account, Dr. Crapo explains, in part, why floor tile with chrysotile asbestos as a component cannot cause pleural mesothelioma, by explaining the nature of chrysotile asbestos: In contrast to amphibole forms of asbestos, chrysotile asbestos has a much lower potential to contribute to the causation of malignant 10 10 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 mesothelioma. Human mesothelioma has only been associated with chrysotile exposures under conditions of chronic, high level exposures and where there was a co-exposure to an amphibole. Exhibit F at 3 of report. ii. Dr. Crapo on Specific Causation – Mr. Godfrey’s alleged work around Amtico floor tile, with chrysotile asbestos as a component, was not and could not have been a substantial contributing factor to his development of pleural mesothelioma. Specifically regarding floor tile, Dr. Crapo concludes, “Products that contain chrysotile in a resin matrix, and which do not result in substantial fiber release, such as vinyl asbestos floor tiles, would not create or contribute to risk for development of an asbestos related disease… [and] Mr. Godfrey’s work with floor tiles sold by American Biltrite would not have contributed to his risk for development of a pleural mesothelioma.” Id. (emphasis added). Dr. Crapo unequivocally states that Amtico floor tile did not cause Mr. Godfrey’s pleural mesothelioma. Dr. Crapo also takes his opinion a step further and offers a scientifically acceptable alternative causation for Mr. Godfrey’s pleural mesothelioma. See Exhibit D. Dr. Crapo explains that it was Mr. Godfrey’s probable exposure to amosite (amphibole) asbestos in thermal insulation from his history of doing construction and renovation work and being present in buildings where pipe insulation was being removed that was the most likely cause of his malignant mesothelioma, and that floor tile, with chrysotile as a low dose minority ingredient encapsulated in a resin matrix, did not and could not contribute to his development of mesothelioma. See id. Thus, Dr. Crapo’s report is an opinion specifically directed at floor tile containing chrysotile, the product at issue in this products liability action. See Exhibit F. Dr. Crapo has presented evidence in admissible form, that floor tile when used correctly does not cause pleural 11 11 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 mesothelioma. This, coupled with Mr. Spencer’s report, established American Biltrite’s prima facie case on general causation, that the proper use of floor tile does not and could not cause pleural mesothelioma in the general population. C. Dr. Geyer’s report also shows that the proper use of floor tile does not and could not cause pleural mesothelioma in the general population and that Mr. Godfrey’s alleged work around Amtico floor tile, with chrysotile asbestos as a component, was not and could not have been a substantial contributing factor to his development of pleural mesothelioma. Dr. Geyer uses the information provided by Mr. Spencer as well as his own independent review of scientific materials, including other floor tile studies, to provide the proper foundation for his expert opinion that potential exposures to floor tile, with chrysotile asbestos as a component, does not cause pleural mesothelioma and Amtico did not and could not cause Mr. Godfrey’s pleural mesothelioma. i. Dr. Geyer on General Causation – the proper use of floor tile does not and could not cause pleural mesothelioma in the general population. Dr. Geyer analyzed and provides citation to many studies that report an absence of an elevated mesothelioma rate in cohorts that would be expected to show an elevated rate if chrysotile fibers were a mesothelioma-causing agent. Exhibit E at 4 of report. Dr. Geyer states that “published medical literature demonstrates that chrysotile asbestos does not cause malignant mesothelioma, unless a high and persistent chrysotile exposure occurs along with a significant contamination of the chrysotile by an amphibole-type of asbestos.” Id. Thus, Dr. Geyer has presented evidence in admissible form, that floor tile when used correctly does not cause pleural mesothelioma. This, coupled with Mr. Spencer’s report and Dr. Crapo’s report, established American Biltrite’s prima facie case on general causation, that the proper use of floor tile does not and could not cause pleural mesothelioma in the general population. 12 12 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 ii. Dr. Geyer on Specific Causation – Mr. Godfrey’s alleged work around Amtico floor tile, with chrysotile asbestos as a component, was not and could not have been a substantial contributing factor to his development of pleural mesothelioma. Dr. Geyer concludes to a reasonable degree of medical certainty: Because the chrysotile fibers in Amtico vinyl asbestos floor tiles were firmly embedded in a resin matrix that prevented or limited the escape of free fibers into workers’ breathing zones, because the defense mechanisms of the upper airways and the lungs limit exposure and biopersistence of chrysotile asbestos in lungs, and because published medical literature demonstrates that chrysotile asbestos did not cause malignant mesothelioma, unless a high and persistent chrysotile exposure occurred along with a significant contamination of the chrysotile by an amphibole-type of asbestos, Robert Godfrey’s work with or in the vicinity of Amtico floor tiles played no role in the cause of his reported malignant mesothelioma. Id. (emphasis added). Thus, American Biltrite has demonstrated through the affidavits of Certified Industrial Hygienist John Spencer, Pulmonologist Dr. James Crapo and Pathologist Dr. Stan Geyer that the proper use of floor tile does not and could not cause pleural mesothelioma in the general population, and that Mr. Godfrey’s alleged work around Amtico floor tile, with chrysotile asbestos as a component, was not and could not have been a substantial contributing factor to his development of pleural mesothelioma. III. Plaintiff, on the other hand, has failed to establish general causation, i.e. the levels at which work with floor tile, containing chrysotile asbestos as a component, is capable of causing pleural mesothelioma in the general population; and Plaintiff has also failed to establish specific causation, i.e. offer a specific comparative analysis sufficient to show that Mr. Godfrey’s alleged work around Amtico Floor Tile, with chrysotile asbestos as a component, was a substantial contributing factor to his development of pleural mesothelioma. As delineated above, American Biltrite has made a prima facie case as to both general and specific causation. Once such a prima facie showing is made, the non-movant “must show facts sufficient to require a trial and ‘must make his showing by producing evidentiary proof in 13 13 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 admissible form.’” RCA Corp. v. American Standards Testing Bureau, Inc., 121 A.D.2d 890, 503 N.Y.S.2d 805, 806 (1st Dept. 1986) (quoting Friends of Animals v. Associated Fur Manufacturers, 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (N.Y. 1979)) (emphasis added). Stated another way, plaintiff must then show "facts and conditions from which the defendant's liability may be reasonably inferred.” Reid v Georgia- Pacific Corp., 212 AD2d 462, 463 [1st Dept 1995]. Thus, as American Biltrite has made a prima facie showing as to both general and specific causation both here and in their initial motion, the burden shifted to Plaintiffs to raise a triable issue of fact with respect to general and specific causation; and they have stillfailed to do so. Cornell, 22 NY3d at 782. To establish an issue of fact, Plaintiff must first offer evidence establishing general causation, i.e. the levels at which work with floor tile, containing chrysotile asbestos as a component, is capable of causing pleural mesothelioma. See Parker, 7 N.Y.3d 434; Cornell, 22 N.Y.3d 762; and Sean R., 26 NY3d 801. Second, Plaintiff must provide a specific comparative assessment to establish specific causation, i.e. that Mr. Godfrey’s alleged work around Amtico Floor Tile, with chrysotile asbestos as a component, was a substantial contributing factor to his development of pleural mesothelioma. See id. The Court of Appeals of New York has held that Summary Judgment is proper when a plaintiff fails to meet the causation standard set forth in Parker. In Cornell, the plaintiff claimed personal injuries from exposure to dampness and mold in an apartment formerly owned by the defendant. See Cornell, 22 N.Y.3d 762. The defendant moved for summary judgment, 10 asserting plaintiff had failed to raise a triable issue of fact since her expert did not establish that the mold in her apartment caused her injuries. Id. at 767-68. Reversing the lower court’s decision and granting defendant’s motion for summary judgment, the Court of Appeals of New York held that the plaintiff had not raised a triable issue 14 14 of 29 FILED: NEW YORK COUNTY CLERK 12/18/2018 05:04 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/18/2018 of fact with respect to general causation by asserting the mere “association” between the environment and the plaintiff’s medical conditions, as it did “not establish that the relevant scientific community generally accepts” that itcaused the adverse health effects. Id. at 783. Moreover, citing Parker, the court noted that plaintiff’s expert “did not identify the specific disease-causing agent to which Cornell was allegedly exposed other than to vaguely describe it as ‘an unusual mixture of atypical microbial contaminants,’” and made “no effort to quantify her level of exposure to this ‘unusual mixture.’” Id. at 784. The court also noted tha