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From Products Liability Law Daily, April 15, 2015

$11 million asbestos verdict against Ford set aside by NY trial court

By Susan Lasser, J.D.

An $11 million asbestos verdict has been set aside by a New York trial court in an action alleging that the death of a mechanic due to mesothelioma was allegedly caused by his exposure to asbestos through his work. The court concluded that without a sufficient foundation for the admission of expert evidence on behalf of the mechanic’s surviving spouse, the evidence was legally insufficient to establish that the mechanic's exposure to asbestos from brakes, clutches, or gaskets sold or distributed by the defendant motor vehicle manufacturer constituted a significant contributing factor in causing the mechanic's mesothelioma (Juni v. A.O. Smith Water Products Co., April 13, 2015, Jaffe, B.).

Background. Arthur and Mary Juni brought suit against Ford Motor Company (Ford), as well as other defendants who have since settled with the Junis, alleging that Arthur Juni’s (Juni) exposure to asbestos from products manufactured or used by the defendants or used at their premises caused Juni to develop, and subsequently die from, mesothelioma. A jury trial proceeded to a verdict only against Ford. After the Junis rested their case, Ford moved for an order striking the causation testimony of their experts and for a directed verdict based on the insufficiency of the evidence. The court reserved decision. The parties then agreed that the jury would be asked whether Juni was exposed to asbestos from brakes, clutches, or gaskets sold or distributed by Ford. The jury was presented with three alternative theories of liability: (1) common law negligence, (2) strict products liability (failure to warn), and (3) products liability (negligence). While the Junis conceded that Ford did not manufacture brakes, clutches or gaskets, they asserted that it manufactured cars and could be liable for Juni’s exposure to asbestos-containing replacement parts used in its vehicles. The trial court declined to instruct the jury on whether Ford failed to warn Juni of the danger of components used in its vehicles. The jury found that: (1) Juni was exposed to asbestos from brakes, clutches, or gaskets sold or distributed by Ford; (2) Ford failed to exercise reasonable care by not providing an adequate warning about the hazards of exposure to asbestos with respect to the use of the brakes, clutches, or gaskets; and (3) Ford’s failure to warn Juni adequately was a substantial contributing factor in causing his injury. The jury then apportioned 49 percent of the liability to Ford and 51 percent to non-party Orange & Rockland Utilities and found that Ford had acted recklessly. It awarded Juni $8 million for his pain and suffering from the onset of his symptoms to his death, and $3 million to his wife, Mary, for her loss of consortium.

Juni’s testimony. The mechanic’s deposition testimony, read to the jury, described his work history, which began in 1964 when he worked for Orange & Rockland as a third-class mechanic. He helped first-class mechanics work on brakes. Asbestos-containing brake drums left brake dust which Juni swept up at night. He also assisted with clutch replacement that produced clutch dust. The garage at which Juni worked serviced all types of vehicles, including Ford’s dump trucks and service vans, on which mechanics would install replacement brakes and clutches, also generating dust. He was promoted over the years, eventually becoming a foreman in the 1970s after years of performing weekly brake, clutch, and gasket replacements. He testified to have worked on Ford vehicles.

Expert testimony. The plaintiffs (the Junis) called Dr. Steven Markowitz, a board-certified physician specializing in internal and occupational medicine, to establish general causation. The doctor testified that asbestos fibers have the ability to bypass the lung’s defense mechanisms, depending on the quantity and size of the fiber. He said that chrysotile was the fiber most used in manufacturing brakes and opined that “no level [of exposure to asbestos] has been identified that separates out increased risk from no risk.” He said that when a worker develops mesothelioma or lung cancer, all instances of exposure to asbestos are “viewed as a whole,” cumulatively contributing to and causing the illness, and “every part of that exposure” acts as a contributing factor. He also testified that there was no “magic number” at which exposure to Ford’s brakes would be a substantial contributing factor in the development of a worker’s mesothelioma. He stated that the more exposure to asbestos, the more contribution there was and the greater the risk. Markowitz also opined that when a worker works with asbestos-containing material and creates visible dust, asbestos is released into the air, and if airborne and is inhaled, the chrysotile fibers contained within friction products (brakes, clutches, and gaskets) can cause mesothelioma. He based his opinion, in part, on: “general knowledge that chrysotile asbestos causes malignant mesothelioma,” certain industrial hygiene studies of workers using friction products; and cases of malignant mesothelioma occurring among garage mechanics or those who work with friction products in the vehicle repair setting (which he said spoke to evidence of a causal relationship in Juni’s case). He did not identify the studies/literature on which he relied and conceded that the subjects of the industrial hygiene studies were factory workers who mass-produced friction products from raw asbestos and not garage workers, experiencing a different exposure. He also admitted that he was not aware of any epidemiological studies supporting his opinion. Rather, 21of 22 studies did “not show much evidence in support of a relationship between mesothelioma and exposure to friction products,” and revealed that for those who worked with friction products, there was no increased risk of developing mesothelioma. He further conceded that it had been found that when asbestos fibers are mixed with certain resins used in manufacturing brakes, the fibers “would not be respirable,” and in most of the studies assessing debris composition formed from work on brakes, it was found that almost all of the asbestos in the brakes was converted to a non-toxic substance, and t any resulting dust was composed of less than one-percent asbestos. Notwithstanding his admissions and discrediting the 21 studies, he maintained his opinion that working with friction products generally causes mesothelioma.

The plaintiffs’ other expert, Dr. Jacqueline Moline, was an expert in internal medicine and occupational and environmental medicine. To show specific causation, she testified that based on her review of Juni’s medical records and deposition transcripts, his cumulative exposures caused his mesothelioma. Moreover, she stated that it was not possible to separate out or exclude any particular exposure. In her opinion, “all” of Juni’s occupational exposures constituted substantial contributing factors in causing his disease, and his cumulative lifetime exposure was sufficient to cause it. Moline based her opinion, in part, on her clinical experience and industrial hygiene studies concerning asbestos exposures in cases of brake manipulations by mechanics. In Moline’s view, “visible dust is an important surrogate to show that someone has had significant exposure.” Also, she did not differentiate among Juni’s exposures to asbestos from products of different companies and acknowledged that the amount, duration, and frequency of exposure were critical factors in assessing the sufficiency of an exposure in causing an increased risk of developing a disease. She was not aware of the details of Juni’s exposure to Ford’s products during his work, so she could not quantify his exposure. Although she did not use the term “each and every exposure,” she opined that the regular use of products containing asbestos constituted a substantial contributing factor in causing an asbestos-related disease. She maintained her opinion that the amount of asbestos to which Juni was exposed from brake-wear debris was a contributing factor to the development of his mesothelioma.

Ford’s arguments. Ford argued that it was entitled to judgment as matter of law or a new trial because the opinions of the plaintiffs’ experts on causation were inadmissible absent a sufficient foundation and were otherwise based on invalid assumptions. Ford asserted that the scientific evidence presented at trial demonstrated that exposure to friction products did not cause mesothelioma and relied on the agreement of the Junis’ experts “that the chrysotile asbestos used in friction products differs from other forms of the mineral and is less carcinogenic than other forms of asbestos.” Pointing to 21 of 22 epidemiological studies concluding that there was no increased risk of asbestos exposure in vehicle mechanics, Ford contended that the Junis’ experts failed to lay a reliable foundation as to general causation—i.e., that exposure to chrysotile asbestos contained within friction products can cause mesothelioma.

Further, the manufacturer argued that neither of the expert opinions was based on a scientific expression of Juni’s exposure to dust from friction products, and pursuant to the New York high court’s opinion in Parker v Mobil Oil Corp., 7 NY3d 434 (2006), a scientific expression of exposure was a required predicate for the admission of evidence of causation in any toxic tort case, that the Junis offered no evidence of the dose, frequency, and/or intensity of Juni’s alleged exposures, and that neither expert compared the mechanic’s exposures with those described in the studies on which they relied. Because the Junis never quantified Juni’s exposure to dust emanating from brakes, clutches, or gaskets sold or distributed by Ford, it was Ford’s contention that neither could the two experts, who instead opined that all of his exposures, cumulatively, constituted a substantial contributing factor—a theory rejected by many courts. Ford maintained that neither the description of the mechanic’s exposure as cumulative, nor the allegation that he was exposed to undifferentiated visible dust constituted a basis for finding that the dust contained asbestos or satisfied the requirements in Parker. According to Ford, even if the experts’ opinions were admissible, a general connection between asbestos exposure and the development of mesothelioma was insufficient evidence absent a showing of a causal connection between the disease and exposure to asbestos from a particular friction product.

Decision. The court agreed with Ford that the Junis failed to put forth reliable expert evidence establishing the causation element of their claims. In order to establish that Ford’s failure to warn Juni adequately of the dangers of exposure to asbestos was a substantial contributing factor in causing his mesothelioma, the plaintiffs had to prove not only that Juni’s mesothelioma was caused by his exposure to asbestos, but that he was exposed to sufficient levels of asbestos to cause his illness as a result of his work on brakes, clutches, or gaskets sold or distributed by Ford. The court noted that in Parker, the New York Court of Appeals addressed the sufficiency of evidence of causation in toxic tort cases. The state high court clarified its decision in Cornell v 360 W 5J8f St. Realty, LLC, 22 NY3d 762 (2014). The current court determined that Parker and Cornell were the controlling precedents in deciding whether the opinions of experts were sufficient to prove causation as a matter of law in toxic tort matters, including asbestos cases.

The court rejected the Junis’ contention that they should be relieved of the burden of establishing a quantifiable level of exposure to asbestos. The court found that in Parker, as in the current case, the plaintiff offered evidence that there was no safe level of exposure to “the toxin.” In Parker, in which the plaintiff’s exposure was to gasoline fumes, which are not visible, the court nonetheless required some quantification of the exposure to the benzene contained in gasoline, the particular product at issue in that case. The court in the Junis’ case stated that mesothelioma’s being caused only by exposure to asbestos did not prove that Ford’s product caused the mesothelioma because it was not the association between mesothelioma and asbestos that was at issue, but rather whether a defendant could be held liable for having caused a plaintiff’s mesothelioma, which was dependent upon the sufficiency of the exposure, if any, to asbestos in the defendant’s product and whether that exposure was capable of causing mesothelioma.

The court analyzed the evidence using the standard set forth in Parker to determine whether Markowitz’s and Moline’s expert opinions on causation sufficiently established that Juni’s exposure to asbestos contained within Ford’s brakes, clutches, or gaskets was capable of causing his mesothelioma, and that Juni, as such, was exposed to sufficient levels of asbestos to cause his mesothelioma. The court found that Markowitz's opinions, either individually or collectively, did not establish that asbestos contained in friction products could cause mesothelioma. Markowitz could not identify any study to support his proposition of an increased risk of contracting mesothelioma from exposure to auto brakes, clutches, or gaskets or that there was an increased risk of mesothelioma from the use of friction products or work on friction materials in the automobile industry. Further, the court stated that epidemiological studies were probative, and Markowitz had acknowledged that 21 of 22 epidemiological studies yielded no evidence of an increased risk of developing an asbestos-related disease. While the absence of an epidemiological study was not fatal to proving causation, the court said, the failure to offer in evidence any study to support Markowitz’s opinion was insufficient to support causation.

As for specific causation, Moline’s opinion that Juni's exposure to asbestos contained in brakes, clutches, or gaskets sold or distributed by Ford was a substantial contributing factor in causing his mesothelioma was mostly based on hypothetical facts she was instructed to assumed, the court said. Moline conceded that she could provide no scientific expression of Juni’s exposure without data, which was not provided and did not exist in the record. Moline also conceded that she did not know whether the dust to which Juni was exposed contained any asbestos, let alone whether it was enough to cause mesothelioma. Also, she had no personal knowledge of the dust’s composition, had not conducted tests or any analyses, and was unfamiliar with what happened to chrysotile asbestos fibers during the brake manufacturing process, or whether the fibers to which Juni was allegedly exposed were biologically active and could cause mesothelioma. The court found that absent knowledge of the amount, duration, or frequency of Juni’s exposures to asbestos-containing dust from brakes, clutches, or gaskets sold or distributed by defendant, Moline could not and did not establish a dose-response relationship or even minimally quantify Juni’s exposures. Moline also failed to use any other method identified in Parker and Cornell to express Juni’s exposure scientifically, such as estimating his exposure through mathematical modeling by taking into account his work history. To the extent she mentioned or relied on studies, she did not and could not compare the exposures reported in the studies with Juni’s exposures. Therefore, the court held that Moline failed to provide a scientific expression of Juni’s exposure to asbestos from brakes, clutches, or gaskets sold or distributed by Ford, and as a result, the Junis failed to prove specific causation. The court said that evidence of Juni's “regular” exposure to brakes, clutches, or gaskets sold or distributed by Ford during Juni’s work life, absent any quantification of the exposure, was insufficient to constitute a scientific expression of his exposure.

Visible asbestos dust. Finally, the court held that to the extent that the Junis argued that proof of visible asbestos dust constituted or was a proxy for the scientific expression of causation, the evidence they offered was insufficient to prove that the dust to which Juni was exposed contained any asbestos or enough to cause his mesothelioma.

The case is No. 190315/12.

Attorneys: Pierre Ratzki (Weitz & Luxenberg PC) for Mary Juni. Oded Burger (Aaronson Rappaport Feinstein & Deutsch, LLP) for Ford Motor Co.

Companies: Ford Motor Co.

MainStory: TopStory EvidentiaryNews DamagesNews ExpertEvidenceNews AsbestosNews NewYorkNews

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