Today, MG+M was granted Summary Judgment in a New York City Asbestos Litigation (NYCAL) matter based upon the Juni decision on causation, on behalf of our client, a floor tile manufacturer.
Plaintiff alleged that he was exposed to asbestos from his work as an insurance agent visiting various residential and commercial construction sites to perform inspections from 1967-1979. It is at these job sites that he contended he was a bystander to the installation of vinyl asbestos floor tile which was a cause of his pleural mesothelioma.
Because the Defendant had made a prima facie case demonstrating a lack of causation, and Plaintiff did not properly establish causation, Justice Manuel Mendez granted summary judgment. The court found that Defendant had demonstrated a lack of both general and specific causation finding its experts properly relied on scientific studies.
The court rejected the opinions of Plaintiff's expert Dr. David Zhang. It found that Dr. Zhang's "cumulative exposure" opinion did not have the proper foundation to establish general or specific causation. Dr. Zhang made no reference to studies or reports establishing that the chrysotile fibers in floor tiles were capable of causing mesothelioma. Dr. Zhang also did not have the proper foundation to establish a specific causation opinion because, as the court found, "Dr. Zhang's report does not rely on comparison to the exposure levels of subjects of other studies, does not provide comparison of the encapsulated chrysotile fibers in the vinyl asbestos floor tiles to other forms of asbestos fibers, or establish that plaintiff was exposed to sufficient levels of asbestos from his [bystander] exposure to products."
The court further found inadequate Zhang's opinion that "a history of significant level of asbestos exposure" was enough to support a causation opinion.
Justice Mendez found that the Defendant's expert opinions of Certified Industrial Hygienist, Mr. John Spencer; pathologist, Dr. Stanley Geyer; and pulmonologist, Dr. David Weill overcame plaintiff's theories.
Mr. Spencer demonstrated floor tile is a non-friable, encapsulated product with potential for only low fiber release, if any at all. Mr. Spencer then estimated Plaintiff's cumulative exposure levels to the floor tiles by conducting a mathematical modeling analysis relying on Plaintiff's deposition testimony, scholarly reports and studies. The potential cumulative exposure level estimated was found to be indistinguishable from most lifetime cumulative exposures to asbestos in the ambient air.
Drs. Geyer and Weill determined, based in part on Mr. Spencer's findings and published literature, that low levels of chrysotile asbestos fibers are incapable of causing pleural mesothelioma. As such, Plantiff's mesothelioma could not be caused by the floor tile.
MG+M Associate Justin Reinhardt prepared the motions on behalf of our client, and Partner Bill Shultz presented the argument to Justice Mendez.