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The Witness Litigation Privilege – (Proving Causation in Toxic Tort Cases)

December 7, 2018 in  News

New York Law Journal 

Somewhat unobtrusively, New York’s highest court recently issued a decision in an asbestos case (see Dan M. Clark, “NY Court of Appeals Affirms Decision Tossing $11M Asbestos Verdict,” N.Y.L.J., Nov. 27) that has significant impact beyond asbestos litigation. Since the latter battleground is a kind of specialty in which most litigators are uninvolved, it may be too easy for readers to ignore the development or even shun a closer look at what the Court of Appeals did. But the brief decision in Matter of New York City Asbestos Litigation; Juni v. A.O. Smith Water Products Co., No. 123 (N.Y. Ct. App., Nov. 27, 2018), deserves a closer look.

It tells us about the “causation” testimony experts need to provide in toxic tort cases to meet the state’s reliability standards. It gives some insight into the views of the court’s newer judges on these important issues. It is a springboard to review and remember major case precedents issued by the court in prior years—case law that cannot be ignored in toxic tort litigation. And, of course, there is the impact upon asbestos lawsuits.

Let’s call this new decision Juni for short. It involved 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. Mrs. Juni, the auto mechanic’s widow, obtained an $11 million jury verdict against Ford Motor. $8 million 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 Justice 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, 48 Misc. 2d 460 (Sup. Ct. N.Y. Co. 2015).

The Appellate Division, First Department, in an informative opinion for the court by Judge David B. Saxe, a concurring opinion by Justice Marcy L. Kahn, and with a robust dissenting opinion by (then) Justice Paul G. Feinman, affirmed Justice Jaffe’s post-trial rulings. Matter of New York City Asbestos Litigation, 2017 N.Y. App. Div. LEXIS 1505 (1st Dep’t Feb. 28, 2017). Since then, dissenting Justice Feinman joined the Court of Appeals as Associate Judge and, so, recused himself from taking part in the Court of Appeals ruling in Juni issued on Nov. 27. Also not taking part was Associate Judge Michael Garcia. As a result, five high court judges decided the case.

Judge Saxe’s Appellate Division opinion concluded 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 at trial was deemed foundationally 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.”

Justice Feinman’s Appellate Division dissent observed that New York’s highest court had 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 Kahn’s concurring opinion viewed the dissent as urging an “exception to the settled rule of Parker.” Any such change had to be made by the court that forged Parker and Cornell, namely, the Court of Appeals. The stage was set as the state’s high court took on the appeal.


The Court of Appeals affirmed the order of the Appellate Division in a brief Memorandum Decision—short on words but, upon analysis, dramatically expansive in meaning and effect. Said the court: “Viewing the evidence in the light most favorable to plaintiffs, the evidence was insufficient as a matter of law to establish that respondent Ford Motor Company’s conduct was a proximate cause of the decedent’s injuries pursuant to the standards set forth in Parker v. Mobil Oil, 7 N.Y.3d 434 (2006) and Cornell v. 360 W. 51st St. Realty, 22 N.Y.3d 762 (2014). Accordingly, on this particular record, defendant was entitled to judgment as a matter of law under CPLR 4404 (a).” What is so momentous about the foregoing few words? Well, the court adheres to its expert reliability standards as expressed in its prior Parker and Cornell decisions. Those rulings go beyond asbestos litigation. They cut through a wide swathe of toxic tort cases. And so, for now, a level of stability and predictability for litigators seems to continue despite the ascent of new judges to the court.

There’s some more to note, however, because two concurring Judges also wrote separately to highlight additional observations. Plus, a dissenting opinion by Judge Jenny Rivera provides insight into her views. So, let’s quickly look at these supplementary opinions to round out the picture.

Judge Eugene M. Fahey joined the majority’s memorandum decision but wrote separately to highlight his view that plaintiffs’ proof “failed to establish, by legally sufficient evidence, a connection between Ford Motor Company’s products and decedent’s exposure to asbestos.” He said he does not address “any other issues of general or specific causation reached by the Appellate Division.”

Judge Rowan D. Wilson concurred in the court’s opinion but wrote separately to explain what he regarded as the failure of proof below. That failure was “as to general causation identified by Supreme Court [Justice Barbara Jaffe], and not any failure as to specific causation identified by the Appellate Division … .” Judge Wilson noted that Mr. Juni was exposed, not only to Ford’s friction products containing asbestos, but to “other types of asbestos-containing products as well.”

Ford’s evidence that extreme, high temperatures in making friction products changed the chrysotile asbestos to a biologically inert substance called Forsterite was unrebutted. The asbestos had been “so radically altered as to render conventional asbestos toxicology irrelevant.” Indeed, plaintiffs’ causation experts made testimonial concessions, such as “no one knows” whether the friction product dust to which Mr. Juni was exposed when replacing the used brakes was toxic. The trial court had relied on this same problem in proof in setting aside the jury verdict and, so, “a necessary link in the proof of proximate cause was missing.” There was simply “a gap in proof as to the toxicity of the products at issue.” Judge Wilson added that he wasn’t suggesting Ford “is correct as a scientific matter; that question remains for the trier of fact in each case.”

Judge Jenny Rivera’s dissenting opinion emphasized that, to succeed on its motion to set aside the verdict, defendant had to establish that the jury’s verdict was “utterly irrational.” She regarded Justice Feinman’s “well-reasoned and thorough” dissent in the Appellate Division as a reflection of “compelling evidence of Mr. Juni’s exposure to asbestos while working on Ford vehicles and products.” Accordingly, there was “no basis to conclude that the verdict was ‘utterly irrational.’”

Thus, at least four of the five Judges deciding the Juni appeal agreed that the court’s prior rulings in Parker and Cornell embodied the applicable proof standards governing reliable expert testimony. Four also agreed that some causation proof failure by plaintiffs occurred specifically at the Juni asbestos trial. Since at least the majority of the court’s judges applied Parker and Cornell, we can assume that those precedents remain a mainstay of New York’s toxic tort causation law standards. How to apply those proof standards in a given case to assure sufficiently reliable expert testimony remains a case-by-case challenge. As the new 2019 litigation year approaches, let’s briefly recall what Parker and Cornell teach us.


Parker v. Mobil Oil, 7 N.Y.3d 434 (2006) involved a gas station attendant who developed a form of leukemia (AML) his experts attributed to benzene exposure through inhalation of gasoline fumes and through skin contact with gasoline. He sued Mobil Oil and other defendants for toxic consequences and failure to warn. The parties’ experts disputed what the specific cause of Mr. Parker’s leukemia was. Defendants moved to preclude Mr. Parker’s expert testimony on the issue of medical causation, contending plaintiffs’ expert testimony was scientifically unreliable under the Frye standard. Defendants also moved for summary judgment dismissing all claims.

The trial court denied defendants’ motion. The Appellate Division reversed, however, holding that since, Mr. Parker’s experts neither quantified plaintiff’s actual exposure nor the threshold required, they could not show that Mr. Parker’s exposure exceeded the minimum disease-causing level. The causation opinions were therefore deemed speculative.

The Court of Appeals affirmed the dismissal but on the ground that plaintiff’s experts, although highly qualified in their respective fields, “failed to demonstrate that exposure to benzene as a component of gasoline caused [Mr.] Parker’s AML.” The dispute was not whether there was an associational relationship between benzene exposure and the risk of developing AML. The key issue was the relationship, if any, between exposure to gasoline containing benzene as a component and the disease. The experts failed to make this connection. Thus, the experts’ opinions were properly excluded.

Parker announced a number of other important expert-gatekeeping principles. The court explained that when “novel scientific evidence” is introduced, there must be a determination of its reliability. The Frye “general acceptance” test asks “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.” However, said the court, 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.” Thus, 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 Parker, there was no particular novel methodology at issue. The inquiry was more akin to “whether there is an appropriate foundation for the experts’ opinions, rather than whether the opinions are admissible under Frye.” The answer was “no”.


In 2014, the Court of Appeals issued its key decision in Cornell v. 360 W. 51st St. Realty, 22 N.Y.3d 762 (2014). Plaintiff was a resident of a Manhattan building which developed mold as a result of demolition and construction work in the basement. She became physically ill, attributing a variety of ailments to exposure to mold and other harmful substances. Defendant moved for summary judgment.

Defendant’s expert opined with reasonable medical certainty that there was “no relationship between the medical problems experienced by Ms. Cornell and exposure to molds.” On “general causation,” he relied on the position paper of the American Academy of Allergy, Asthma and Immunology (AAAAI) which he referred to as “the current ‘state of the art’ and widely accepted as authoritative.” Plaintiff also could not demonstrate “specific causation” for some seven itemized reasons quoted by the court in its opinion. One of these was that plaintiff’s complained-of medical problems “are common in the human population regardless of indoor exposure to molds.”

Ultimately, the Court of Appeals held that the expert’s conclusions on general and specific causation were insufficient. The court reiterated its established principles regarding Frye and Parker. 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. The expert’s conclusion, too, 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.”

Plaintiff’s expert merely spoke in terms of “risk,” “linkage” and “association”—“not 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).


On one level, the court’s decision in Juni focuses on yet another asbestos case. But, when viewed as a more policy-based declaration of New York’s causation-proof standards, the new decision tells us much about what litigators (still) have to prove or shoot down.