Can Plaintiffs Pass the Parker Test?  The Future of Asbestos Litigation (NY)

Back in 2017 in Matter of New York City Asbestos Litigation, the Appellate Division, First Department affirmed a trial court ruling that granted defendant Ford’s motion for to set aside the verdict.  And the Court of Appeals is set to rule on the admissibility of expert opinion in the underlying trial.

In the underlying action, decedent, Arthur Juni, passed away from mesothelioma allegedly caused by exposure to asbestos while he worked as an auto mechanic.  Decedent worked for non-party Orange & Rockland Utilities from 1966 – 2009, servicing predominantly Ford vehicles.  He was issued a respirator in 1988, but was exposed to asbestos for approximately 25 years prior to that.

The jury awarded decedent’s wife and administratrix $3M for her loss and $8M to the estate for pain and suffering.  The judge granted Ford’s motion to set aside the verdict for failing to quantify decedent’s exposure levels or provide scientific expression of his exposure level with respect to Ford’s products.  To be clear, a plaintiff must prove not only that mesothelioma was caused by exposure to asbestos, but also that exposure was to sufficient levels of the toxin to have caused the illness.  Due to studies that found mechanics working on friction products found no increased risk of mesothelioma and studies showing that only 1% of dust blown out from brake drums is comprised of asbestos, the trial court was not convinced with plaintiff’s experts that the cumulative exposure was sufficient to link decedent’s mesothelioma to the exposure.

Relying on Parker v. Mobil Oil Corp. which addressed a claim of years of workplace exposure to benzene in gasoline as a cause of acute myelogenous leukemia, New York established a rule in toxic tort cases that, “an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).”  In a fractured opinion, the Court agreed that there is consensus in the scientific community as to general causation, i.e., the link between asbestos and mesothelioma, but felt decedent failed in proving he was exposed to a sufficient amount of visible fibers to cause the disease, or, in the alternative, that a sufficient amount of toxins existed in the inhaled “visible dust” to cause the disease.

Given the complexity of the inquiry, the Court of Appeals heard oral arguments on decedent’s final appeal and is due to decide this issue within the next month.  Associate Justice Feinman who authored the dissent at the 1st Dept. level, and has recused himself, but should his brethren follow his lead, an asbestos plaintiff would have to show (1) regular use by an employer of the defendant’s asbestos-containing product, (2) plaintiff’s proximity to that product, and (3) exposure over an extended period of time.  Should the Court affirm the First Department, plaintiffs would have an additional hurdle in proving a specific relation to the exposure and the disease.  In the instant case, the Court found the experts to be too general, subjective and conclusory to find that decedent’s exposure was a significant factor in causing his cancer.  The battle of the experts in these cases have an unenviable job of using mathematical modeling or qualitative comparisons to recreate conditions, often decades after exposure and explaining their findings in lay terms for their non-medical audience in judges and jurors.  The Court of Appeals then must balance the danger of accepting correlation as causation and creating an insurmountable standard that would deprive plaintiffs of their day in court.  This decision could be a game changer in the future of asbestos litigation.  Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

Expert Not Needed to Overcome Summary Judgment (PA)

The Pennsylvania Superior Court recently vacated two orders of summary judgment following review of the trial court’s determination regarding the existence of a genuine issue of material fact.  In Medsger v. Hawaiian Tan, No. 1635 WDA 2016,  Nov. 20, 2017, the Superior Court held that the trial court’s granting of summary judgment for defendants was erroneous, and vacated the orders as well as remanding the case for trial.

The case arose from an incident in which defendant Matkovich, a patron of Hawaiian Tan salon, was turning left onto a highway after exiting the salon.  Plaintiff Medsger was traveling on his motorcycle northbound on the highway.  While turning onto the highway, Matkovich’s vehicle collided with Medsger, causing serious injuries to Medsger.  At the time of the collision, there were five temporary yard signs advertising Hawaiian Tan’s business that were located along the highway between the exit Matkovich was using and the entrance to the highway.  Plaintiff alleged that Hawaiian Tan was negligent in placing the sings too close to the highway in violation of local ordinances.  Plaintiff also alleged that the property owner of the building in which Hawaiian Tan was located was negligent by permitting Hawaiian Tan to erect and maintain the signs too close to the highway.

The trial court granted summary judgment in favor of Hawaiian Tan and the property owner, concluding that Plaintiff failed to present a prima facie case that the placement of the advertising signs contributed to the accident by blocking Matkovich’s view of the highway.  In granting defendants’ motions for summary judgment, the trial court rejected an affidavit by Plaintiff’s son which attached several photographs depicting the location of the signs.  The trial court ruled that the affidavit was an unscientific recreation of the accident scene and that it lacked assurance that it accurately reflected Matikovich’s viewpoint at the time of the accident; thus failing to raise a genuine issue of fact as to whether the sign placement impaired Matkovich’s view of the highway.

On appeal, the Superior Court applied a de novo standard of review as to the presence of a genuine issue of fact.  In reversing the trial court’s granting of summary judgment, the Superior Court stated that, under Pennsylvania law, credibility and weight of witness testimony are not proper considerations at summary judgment stage, but rather that they fall under the purview of the jury.  The Superior Court further stated that, when viewing the facts in the light most favorable to Plaintiff (the non-moving party), the information and photographs contained in the affidavit created a genuine issue of fact.  The court noted that, at the summary judgment stage, it was irrelevant whether Plaintiff’s son qualified as an expert witness, and that Plaintiff was entitled to introduce the photographs and have the jury weigh the credibility of the affidavit.  In its opinion, the PA Superior Court provides a concise and helpful articulation of the Pennsylvania standard for summary judgment, while also citing the specific examples of layperson’s affidavits and photographs from the scene of an accident.

The reality is, this decision is likely good news for plaintiffs in PA, who are seeking to avoid incurring expert witness fees at the motion stage.  Thanks for Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.


How Many Experts Are Too Many? (NJ)

In most states, the trial judge has substantial discretion to control the presentation of evidence.  Some judges are notoriously strict task masters, pushing the litigants to complete their presentations as quickly as possible so that the jury may begin the difficult job of deciding who wins.

Just how far may a trial judge go in her quest to “keep things moving”?  Can the court restrict the number of witnesses, particularly experts, who will testify about a common issue?

In McLean v. Liberty Health System, the New Jersey Appellate Division upended what had been the prevailing view that trial judges could restrict the parties to one expert per issue.   Young Kevin McClean, aged 16, died after an infection went undetected at a local hospital.  The administratrix of his estate claimed that the hospital’s emergency room physician failed to meet the standard of care required under the circumstances. The case was expected to be long and complicated so the trial judge restricted each side to one expert per specialty, thus limiting the plaintiff to one expert on the issue of the standard of care expected of an emergency room doctor.

During opening statements, the attorney for the defendant doctor went on the offensive, advising the jury that “we will prove that no emergency room physician with the possible exception of [plaintiff’s expert] ….would ever have thought for a scintilla of a moment that this is a patient with an infection. None.”  The problem was that the plaintiff had already disclosed the reports of two expert witnesses who would both say that the defendant doctor botched the care provided the decedent by failing to identify the infection.  According to the Appellate Division, the defense attorney’s statement was false and the defense lawyer knew it.  Not surprisingly, the jury found in favor of the defense.

Employing sweeping language, the Appellate Division held that “Nothing in our rules of evidence, or other laws or rules, gives the trial court authority to balance the number of witnesses presented by each side at trial.”  The court further cautioned that a trial court may not bar the testimony of witnesses “merely on the ground that it duplicates another witness’s testimony.”

There are many lessons to be learned from McClean.  There seems to be no doubt that a party cannot be precluded from calling multiple witnesses, either fact or expert, on identical issues that are crucial to the case.  Judicial efficiency may be an important goal but it is trumped by a party’s right to put all relevant evidence, even if duplicative, before the jury on crucial issues.

If you have any questions or comments on this post, please email Paul at .