A Dose of Reality for the NYC Asbestos Litigation

In 1965, Ralph Nader’s “Unsafe at Any Speed: The Designed-In Dangers of the American Automobile” was published, raising the public’s conscientiousness of the auto industry’s disregard for safety in favor of profits. The book’s title was purposefully provocative, and its hyperbole was effective in grabbing the public’s attention. But in the world of toxic torts, “unsafe at any level” is insufficient to establish a prima facie case of liability in most jurisdictions in the United States. See, e.g., Lawrence G. Cetrulo, Toxic Tort Litigation Guide Appendix 33-A, Court Decisions re: “Single Fiber Theory” (November 2018).

While New York also requires some proof of “dose” to bottom an expert’s opinion on causation in toxic tort cases (Parker v. Mobile Oil, 7 N.Y.3d 434 (2006); Cornell v. 360 W. 51st St. Realty, 22 N.Y.3d 762 (2014)), until recently, asbestos cases seemed to have been the exception to this requirement. Lustenring v. AC&S, 13 A.D.3d 69 (1st Dep’t 2004), lv. den. 4 N.Y.3d 708 (2005). But this past November, the New York Court Appeals affirmed the setting aside of an $11 million verdict in an asbestos case against Ford Motor Company for, what they said, was insufficient proof of causation. Matter of NY City Asbestos Litig. (Juni v. A.O. Smith Water Products), __ N.Y.3d __, 2018 Slip Op 08059 (Nov. 27, 2018). The court affirmed the First Department’s holding that a plaintiff who seeks damages for contracting mesothelioma based on exposure to a defendant’s asbestos-containing products must satisfy the standards expressed in Parker v. Mobil Oil and Cornell v. 360 W. 51st St. Realty, by offering evidence that, if it does not provide an exact mathematical quantification of that exposure, it at least provides some “scientific expression” (Parker, 7 N.Y.3d at 449) of the level of exposure to toxins in defendant’s products that was sufficient to have caused the disease. In re New York City Asbestos Litig., 148 A.D.3d 233, 48 N.Y.S.3d 365 (1st Dep’t 2017), aff’d sub nom. Matter of New York City Asbestos Litig., ____ N.Y.3d ___, 2018 Slip Op 08059 (Nov. 27, 2018). Rejected by the trial court and the First Department was the plaintiff’s attempt to rely upon the notion that asbestos is “unsafe at any level.”

NY’s Evolving Position on Requiring Proof of Dose