Experts’ Proofs Flunk N.Y. ‘Reliability’ Standards
New York Law Journal
An important decision issued on February 28 by the Appellate Division, First Department, tees up a grand refresher course on New York’s legal standards for admitting expert testimony in toxic tort litigation—in this case, a claim on behalf of a deceased auto mechanic alleging that his mesothelioma was caused by asbestos found in defendant Ford Motor Company’s brakes, clutches and gaskets. This new decision, Matter of New York City Asbestos Litigation, 2017 NY Slip Op. 01523, 2017 N.Y. App. Div. LEXIS 1505 (1st Dep’t, Feb. 28, 2017), boasts an informative opinion for the court by Justice David B. Saxe; a concurring opinion by Justice Marcy L. Kahn reminding all that changes in the state’s jurisprudence on expert testimony must be made by the Court of Appeals; and a robust dissenting opinion by Justice Paul G. Feinman that adds some intellectual tension to the expert reliability issues. This opinion bundle teaches important lessons, and interested readers can learn about the big picture of what’s needed from experts. While the factual setting is an asbestos case with which many lawyers may not identify, the gleanings on experts’ opinions transcend asbestos.
Mrs. Juni, the auto mechanic’s widow, obtained an $11 million jury verdict against Ford Motor. Eight million dollars was for the decedent’s pain and suffering from symptom onset to death. Three million was for the widow’s loss of consortium. However, on post-trial motions, Supreme Court Judge Barbara Jaffe set aside the verdict and entered judgment for defendant because plaintiff’s expert proofs were deemed insufficient under expert reliability standards established in prior rulings by New York’s highest court. Juni v. A.O. Smith Water Products, 2015 N.Y. Misc. LEXIS 1168 (N.Y. Co. April 13, 2015). The latter precedents have come to be known as the Parker and Cornell decisions and are considered to be a road map for admitting or excluding experts’ scientific opinions and methodologies in New York state courts. Parker v. Mobil Oil, 7 N.Y. 3d 434 (2006); Cornell v. 360 W. 51st St. Realty, 22 N.Y. 3d 762 (2014).
The new appellate division decision affirms Judge Jaffe’s post-trial rulings and, therefore, is surely instructive for asbestos litigators, particularly those urging or rejecting the “single fiber” or “cumulative exposure” causation theory. In this article, however, we should also try to refresh readers’ recollections about New York’s evidentiary standards of expert reliability and sufficiency beyond the asbestos narrative. After all, Parker involved a gas station attendant’s claim that his leukemia was caused by exposure to benzene in gasoline. And Cornell involved a claim by a Manhattan building resident that her illness and physical ailments were caused by exposure to mold and other harmful substances. Each of those cases had the court weighing the reliability or sufficiency of expert testimony proffered to prove causation. The Parker and Cornell standards, in turn, loomed large in the Juni asbestos ruling issued by the First Department on February 28.
Let’s highlight what basically is needed from experts in order to pass through New York’s admissibility “gate” when it comes to proving general and specific causation. If “novel” scientific evidence is involved, the court applies the Frye “general acceptance” test to determine “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.” If the answer is “no,” the testimony has flunked and must be precluded or excluded. If the answer is “yes,” the proponent of the novel scientific testimony has survived the threshold Frye test but still has to get fully past the admissibility “gate.” The evidence must meet a second, “foundational reliability” inquiry.
This second reliability standard applies to all expert testimony, not just “novel” scientific evidence. In Parker, the court said the Frye inquiry is “separate and distinct from the admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case.” Parker declared that the focus moves “from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of evidence at trial.”
In fact, in Parker, the court said that no particular “novel” methodology was at issue for which “general acceptance” of the scientific community needed to be determined. Instead, the salient admissibility issue was foundational reliability—”an inquiry … more akin to whether there is an appropriate foundation for the expert’s opinions.” In other words, do the methodologies “lead to a reliable result?” In Parker, the court’s rigorous reliability-policing review led to the conclusion that, although the experts were highly qualified in their respective fields, they “failed to demonstrate that exposure to benzene as a component of gasoline caused [Mr.] Parker’s AML.”
In the Cornell mold illness case, the expert’s conclusions on general and specific causation were deemed insufficient. The court reiterated its established principles regarding Frye and Parker standards for receiving expert evidence. Although Frye focuses on principles and methodologies, these are “not entirely distinct from one another.” Even if an expert is using reliable principles and methods and is extrapolating from reliable data, a court may still exclude the expert’s opinion if “there is simply too great an analytical gap between the data and the opinion proffered.” Thus, an opinion connected to existing data “only by the ipse dixit of the expert” may be excluded. Ipse dixit refers to an assertion made but not proved. The expert’s conclusion also has to be reliable. The court reiterated that the precept has sometimes been expressed in terms of the “general foundation inquiry applicable to all evidence.” The studies cited by plaintiff’s expert in Cornell merely spoke in terms of “risk,” “linkage” and “association”—”not causation.” Indeed, plaintiff’s expert repeatedly equated association with causation. He thereby departed from the generally accepted methodology for evaluating epidemiological evidence as reflected in the Federal Courts’ Reference Manual on Scientific Evidence.
Further, even “assuming” that Cornell’s expert demonstrated enough to show general causation, he did not reliably show the necessary proof of specific causation. As Parker explains, an opinion on causation should set forth not only a plaintiff’s exposure to a toxin and that the toxin is capable of causing the particular illness (general causation) but also that plaintiff was “exposed to sufficient levels” of the toxin to cause the illness (specific causation). Thus, there must be evidence that plaintiff was exposed to “levels of that agent that are shown to cause the kind of harm that plaintiff claims to have suffered.”
Back now to the new appellate division decision holding that the asbestos experts flunked admissibility requisites. Justice Saxe’s opinion for the court in Juni tracks the Parker and Cornell standards and additionally cites and quotes from Sean R. v. BMW of N. Am., 26 N.Y. 3d 801 (2016), where the Court of Appeals “succinctly reiterated” the standard of proof required in toxic tort cases. Plaintiff in BMW claimed that her child’s mental and physical disabilities were caused in utero by exposure to unleaded gasoline odors attributable to a defective gas hose in the mother’s car. The expert proofs were held insufficient.
Justice Saxe observed that the fact that asbestos has been linked to mesothelioma “is not enough for a determination of liability against a particular defendant; a causation expert must still establish that the plaintiff was exposed to sufficient levels of the toxin from the defendant’s products to have caused his disease.” Even if it is not possible to quantify a plaintiff’s exposure, “causation from exposure to toxins in a defendant’s product must be established through some scientific method … .”
The plaintiff’s evidence here was insufficient because “it failed to establish that the decedent’s mesothelioma was a result of his exposure to a sufficient quantity of asbestos in friction products sold or distributed by defendant Ford Motor Company.” The experts effectively testified only in terms of an increased risk and association between asbestos and mesothelioma but failed to quantify the decedent’s exposure levels or otherwise provide “any scientific expression of his exposure level with respect to Ford’s products.” The experts’ broad conclusions on causation “lacked a sufficient foundation, and were therefore legally insufficient” to establish that Juni’s exposure to asbestos in Ford products was a significant contributing factor in causing Juni’s mesothelioma.
Justice Paul G. Feinman’s spirited dissenting opinion observed that New York’s highest court has not specifically addressed the sufficiency of proof needed to establish causation in an asbestos claim. He emphasized a “consensus from the medical and scientific communities” that even low doses of asbestos exposure can cause mesothelioma. Justice Saxe, however, disagreed that any such consensus entitles a plaintiff to be awarded judgment “by merely establishing some exposure to a product containing any amount of asbestos,” contrary to the standards set by Parker and Cornell. Justice Marcy L. Kahn’s concurring opinion viewed the dissent as urging an “exception to the settled rule of Parker.” Any such change has to be made by the court that forged Parker and Cornell, the Court of Appeals. The tension inhering in the opinions actually makes for interesting reading.
The new First Department decision is certainly relevant for asbestos litigators. But even those uninterested in asbestos imbroglios should not ignore the decision. It is a great refresher course on the New York law of expert reliability and the need for sufficient proof of general and specific causation. This column has taken that approach and has highlighted the Parker and Cornell requisites in light of the bigger litigation picture. The bottom lines: Judicial “gatekeeping” of experts is (or should be) vigorous; reliability standards must govern.