FILED: SUFFOLK COUNTY CLERK 07/27/2018 01:40 PM
`NYSCEF DOC. NO. 259
`
`INDEX NO. 620180/2016
`
`RECEIVED NYSCEF: 07/27/2018
`
` Positive
`As of: February 13, 2018 3:11 PM Z
`
`Matter of New York City Asbestos Litig.
`
`Supreme Court of New York, New York County
`
` April 13, 2015, Decided
`
`190315/12
`
`Reporter
`48 Misc. 3d 460 *; 11 N.Y.S.3d 416 **; 2015 N.Y. Misc. LEXIS 1272 ***; 2015 NY Slip Op 25125 ****
`causation, under a Parker analysis, did not sufficiently
`establish that his exposure was capable of causing his
`mesothelioma;
`[3]-Specific causation was also not
`shown, as the expert was unable to provide scientific
`expression of the mechanic's exposure absent data,
`which was not provided and did not exist in the record.
`
` [****1] In the Matter of New York City Asbestos
`Litigation. Arthur H. Juni et al., Plaintiffs, v A.O. Smith
`Water Products et al., Defendants.
`
`Subsequent History: As Corrected June 8, 2015.
`
`Affirmed by, Appeal dismissed by Matter of New York
`City Asbestos Litig., 148 AD3d 233, 48 NYS3d 365,
`2017 N.Y. App. Div. LEXIS 1505 (N.Y. App. Div. 1st
`Dep't, Feb. 28, 2017)
`
`Prior History: Matter of New York City Asbestos Litig.,
`2015 N.Y. Misc. LEXIS 1168 (N.Y. Sup. Ct., Apr. 13,
`2015)
`Juni v A.O. Smith Water Prods., 2015 N.Y. Misc. LEXIS
`1218 (N.Y. Sup. Ct., Apr. 13, 2015)
`
`Core Terms
`
`exposure, causation, mesothelioma, asbestos, brakes,
`studies, products, dust, exposed to asbestos, clutches,
`benzene, disease, gaskets, exposed, friction, scientific,
`cumulative, gasoline, mechanics, quantify, levels,
`distributed, increased risk, visible, epidemiological,
`expert opinion, causes, toxic tort, vehicles, garage
`
`Case Summary
`
`Overview
`
`judicial
`review of
`[1]-Based on a
`HOLDINGS:
`precedents, Parker and Cornell were deemed
`controlling in deciding whether the opinions of plaintiffs'
`experts are sufficient to prove causation as a matter of
`law in all toxic tort matters, including asbestos cases;
`[2]-A verdict for a mechanic in his asbestos exposure
`action against a vehicle manufacturer
`that used
`asbestos-containing replacement parts was set aside
`under CPLR 4404(a), as the expert opinion on general
`
`Outcome
`Motion to set aside verdict granted; verdict set aside in
`entirety. Judgment rendered for vehicle manufacturer.
`
`LexisNexis® Headnotes
`
`Civil Procedure > Trials > Judgment as Matter of
`Law > General Overview
`
`Evidence > Weight & Sufficiency
`
`HN1[
`
`] Trials, Judgment as Matter of Law
`
`Pursuant to CPLR 4404(a), the court may set aside a
`verdict or judgment entered after trial and direct that
`judgment be entered in favor of a party entitled to
`judgment as a matter of law on the ground that the
`verdict was not supported by legally sufficient evidence.
`In order to find that a verdict should be set aside as a
`matter of law, the court must determine that there is no
`valid line of reasoning and permissible inferences which
`could possibly lead rational jurors to the conclusion
`reached by the jury on the basis of the evidence
`presented at trial. Thus, it must appear upon a fair
`interpretation of the evidence that no valid line of
`reasoning or set of permissible inferences exist that
`would permit the jurors to arrive at the verdict reached.
`
`Evidence > Admissibility > Expert Witnesses > Kelly
`
`Michael Gorman
`
`

`

`FILED: SUFFOLK COUNTY CLERK 07/27/2018 01:40 PM
`NYSCEF DOC. NO. 259
`RECEIVED NYSCEF: 07/27/2018
`Page 2 of 21
`48 Misc. 3d 460, *460; 11 N.Y.S.3d 416, **416; 2015 N.Y. Misc. LEXIS 1272, ***1272; 2015 NY Slip Op 25125,
`****1
`
`INDEX NO. 620180/2016
`
`Frye Standard
`
`Torts > ... > Elements > Causation > General
`Overview
`
`Torts > ... > Elements > Causation > General
`Overview
`
`HN4[
`
`] Evidence, Expert Testimony
`
`HN2[
`
`] Expert Witnesses, Kelly Frye Standard
`
`In addressing the admissibility of expert opinions for a
`toxic tort case, the pertinent inquiry is whether there is a
`proper foundation - to determine whether the accepted
`methods were appropriately employed in a particular
`case. The Court contrasted a Frye hearing, by which the
`trial court determines if the scientific procedure and
`results are generally accepted as reliable
`in
`the
`scientific community. The relevant inquiry in a toxic tort
`case is whether the methods employed by the plaintiff's
`experts led to a reliable result, specifically, whether they
`provided a reliable causation opinion without using a
`dose-response relationship and without quantifying the
`plaintiff's exposure.
`
`Torts > ... > Proof > Evidence > Expert Testimony
`
`Torts > ... > Elements > Causation > General
`Overview
`
`HN3[
`
`] Evidence, Expert Testimony
`
`Although one problem with establishing causation in
`toxic tort cases is that, often, a plaintiff's exposure to a
`toxin will be difficult or impossible to quantify by
`pinpointing an exact numerical value,
`the well-
`established requirement is that an expert opinion on
`causation sets 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). It is not always necessary for a plaintiff to
`quantify exposure levels precisely or use the dose-
`response relationship, provided that whatever methods
`an expert uses to establish causation are generally
`accepted in the scientific community. Those methods
`could include estimating the plaintiff's exposure through
`mathematical modeling based on a plaintiff's work
`history, or comparing the plaintiff's exposures with those
`reported in studies, provided that the expert specifically
`compares the plaintiff's exposure level with those of the
`other study's subjects.
`
`is
`first question an epidemiologist addresses
`The
`whether an association exists between exposure to the
`agent and disease. Although a causal relationship is
`one possible explanation for an observed association
`between an exposure and a disease, an association
`does not necessarily mean that there is a cause-effect
`relationship.
`
`Torts > ... > Proof > Evidence > Burdens of Proof
`
`HN5[
`
`] Evidence, Burdens of Proof
`
`While it was acknowledged in Parker that a precise
`quantification or dose-response relationship or an exact
`number is not required to show specific causation, such
`as for a toxic tort, Parker by no means dispensed with a
`plaintiff's burden to establish sufficient exposure to a
`substance to cause the claimed adverse health effect,
`and it is not enough for a plaintiff to show that a certain
`agent sometimes causes the kind of harm that he or she
`is complaining of. Rather, and at a minimum, there must
`be evidence from which the factfinder can conclude that
`the plaintiff was exposed to levels of that agent that are
`known to cause the kind of harm that the plaintiff claims
`to have suffered.
`
`Torts > ... > Proof > Evidence > Expert Testimony
`
`Torts > ... > Elements > Causation > General
`Overview
`
`HN6[
`
`] Evidence, Expert Testimony
`
`Courts ruling on the sufficiency of expert evidence in a
`variety of toxic tort cases have relied on Parker.
`
`Governments > Courts > Authority to Adjudicate
`
`HN7[
`
`] Courts, Authority to Adjudicate
`
`The Court of Appeals is "the State's policy-making
`tribunal."
`
`Torts > ... > Proof > Evidence > Expert Testimony
`
`Michael Gorman
`
`

`

`FILED: SUFFOLK COUNTY CLERK 07/27/2018 01:40 PM
`NYSCEF DOC. NO. 259
`RECEIVED NYSCEF: 07/27/2018
`Page 3 of 21
`48 Misc. 3d 460, *460; 11 N.Y.S.3d 416, **416; 2015 N.Y. Misc. LEXIS 1272, ***1272; 2015 NY Slip Op 25125,
`****1
`HN10[
`
`INDEX NO. 620180/2016
`
`Torts > ... > Proof > Evidence > Burdens of Proof
`
`] Evidence, Burdens of Proof
`
`Torts > ... > Proof > Evidence > Expert Testimony
`
`Torts > ... > Elements > Causation > General
`Overview
`
`HN8[
`
`] Evidence, Burdens of Proof
`
`Parker and Cornell are the controlling precedents in
`deciding whether the opinions of plaintiffs' experts are
`sufficient to prove causation as a matter of law in all
`toxic tort matters including asbestos cases. It is for the
`Court of Appeals alone to determine whether the link
`between mesothelioma and asbestos warrants relieving
`plaintiffs of the burden of establishing a foundation for
`the admission of an expert's opinion concerning general
`causation.
`
`Torts > ... > Proof > Evidence > Expert Testimony
`
`Torts > ... > Elements > Causation > General
`Overview
`
`Torts > Products Liability > General Overview
`
`HN9[
`
`] Evidence, Expert Testimony
`
`That mesothelioma is caused only by exposure to
`asbestos does not dispose of the issue of whether a
`defendant's product caused the mesothelioma, as it is
`not
`the association between mesothelioma and
`asbestos that is in issue when determining causation,
`but whether a defendant may be held liable for having
`caused a plaintiff's mesothelioma, which depends on the
`sufficiency of the exposure, if any, to asbestos in the
`defendant's product and whether that exposure is
`capable of causing mesothelioma. And, where an expert
`concedes
`that asbestos contained within
`friction
`products becomes degraded
`in
`the manufacturing
`process, and the plaintiff is alleged to have been
`exposed to numerous asbestos-containing products
`over many years, this issue may not be overlooked or
`ignored.
`
`Proof of a risk, even an increased risk, does not
`constitute proof of causation. Association
`is not
`causation. Moreover, case reports or case studies are
`not generally accepted methods of establishing
`causation.
`
`Torts > ... > Proof > Evidence > Burdens of Proof
`
`Torts > ... > Proof > Evidence > Expert Testimony
`
`Torts > ... > Elements > Causation > General
`Overview
`
`HN11[
`
`] Evidence, Burdens of Proof
`
`the
`that only summarizes
`literature
`Peer-reviewed
`studies is also insufficient to establish causation for a
`toxic tort. And the reports and findings of governmental
`agencies are irrelevant as they constitute insufficient
`proof of causation.
`
`Torts > ... > Proof > Evidence > Burdens of Proof
`
`Torts > ... > Elements > Causation > General
`Overview
`
`Torts > ... > Proof > Evidence > Expert Testimony
`
`HN12[
`
`] Evidence, Burdens of Proof
`
`Epidemiological studies specific to a profession, or even
`epidemiological studies in general, are not necessary to
`prove causation, and an expert need not submit or cite
`to epidemiological studies related
`to
`the specific
`profession at
`issue
`in order
`to prove causation.
`However, that epidemiological studies are not required
`does not mean that they are not probative. The absence
`of an epidemiological study is not fatal to proving
`causation.
`
`Torts > ... > Proof > Evidence > Burdens of Proof
`
`Torts > ... > Elements > Causation > General
`Overview
`
`Torts > ... > Proof > Evidence > Expert Testimony
`
`Torts > ... > Elements > Causation > General
`Overview
`
`HN13[
`
`] Evidence, Expert Testimony
`
`Michael Gorman
`
`

`

`FILED: SUFFOLK COUNTY CLERK 07/27/2018 01:40 PM
`NYSCEF DOC. NO. 259
`RECEIVED NYSCEF: 07/27/2018
`Page 4 of 21
`48 Misc. 3d 460, *460; 11 N.Y.S.3d 416, **416; 2015 N.Y. Misc. LEXIS 1272, ***1272; 2015 NY Slip Op 25125,
`****1
`The opinion that every single exposure constitutes a
`significant contributing factor because the exposures
`cumulatively cause the disease is irreconcilable with the
`well-recognized scientific requirement that the amount,
`duration, and frequency of exposure be considered in
`assessing the sufficiency of an exposure in increasing
`the risk of developing a disease. In other words, the risk
`of developing a disease
`increases or decreases
`depending on the nature of the exposure to the toxic
`tort, which depends on the amount, duration, and
`frequency of the exposure.
`
`INDEX NO. 620180/2016
`
`Torts > ... > Elements > Causation > General
`Overview
`
`Torts > ... > Proof > Evidence > Expert Testimony
`
`HN16[
`
`] Evidence, Burdens of Proof
`
`Although there may be cases where it will be difficult or
`impossible to quantify a plaintiff's exposure to a toxin,
`the Parker Court held that some quantification is
`nonetheless necessary for a plaintiff to prove causation.
`Therefore, that the plaintiff's burden of establishing that
`a particular exposure to asbestos was the cause of his
`mesothelioma is satisfied by an expert's opinion that a
`cumulative exposure to asbestos, no matter how small
`and without any quantification, was a substantial
`contributing factor to the development of a plaintiff's
`mesothelioma, is contrary to New York law as set forth
`in Parker and Cornell.
`
`Headnotes/Syllabus
`
`Headnotes
`
`Evidence—Scientific Evidence—Exposure to Toxic
`Substances—Foundation
`for Expert Opinion—
`Causation
`
`In an action alleging that exposure to asbestos from
`vehicle parts sold or distributed by defendant caused
`plaintiff to develop mesothelioma over the course of his
`employment as a garage mechanic and that defendant's
`failure to warn plaintiff of the dangers of asbestos
`exposure was a substantial contributing
`factor
`in
`causing his illness, plaintiff failed to establish a sufficient
`foundation
`for admission of his expert witnesses'
`opinions on the issue of causation. Plaintiff was obliged
`to prove not only that his mesothelioma was caused by
`exposure to asbestos, but that he was exposed to
`sufficient levels of the toxin to cause his illness as a
`result of his work on the parts sold or distributed by
`defendant. That mesothelioma
`is caused only by
`exposure to asbestos does not dispose of the issue of
`whether
`a
`defendant's
`product
`caused
`the
`mesothelioma, as it is not the association between the
`disease and asbestos that is in issue when determining
`causation, but whether a defendant may be held liable
`for having caused a plaintiff's mesothelioma, which
`depends on the sufficiency of the exposure, if any, to
`asbestos in defendant's product and whether that
`exposure is capable of causing mesothelioma. The
`reports and studies relied upon by plaintiff's experts
`
`Torts > ... > Elements > Causation > General
`Overview
`
`Torts > Products Liability > General Overview
`
`HN14[
`
`] Elements, Causation
`
`It is not the association between mesothelioma and
`asbestos that is in issue when determining legal
`causation for an asbestos exposure matter, but rather
`whether a particular defendant may be held liable for
`having caused a person's mesothelioma, which
`depends on the person's exposure to the defendant's
`product. Accepted science is that it is the nature and
`degree of
`the exposure
`that affects
`the risk of
`developing a disease.
`
`Torts > ... > Proof > Evidence > Burdens of Proof
`
`Torts > Products Liability > General Overview
`
`Torts > ... > Elements > Causation > General
`Overview
`
`HN15[
`
`] Evidence, Burdens of Proof
`
`The Court of Appeals's direction in Parker and Cornell
`regarding the proof necessary to establish causation as
`a matter of law in a toxic tort case conforms with the
`case law in other jurisdictions addressing the issue of
`the sufficiency of evidence of cumulative exposure in
`asbestos cases. Many of those courts require specific
`proof of exposure and have rejected the so-called
`cumulative exposure theory and its variant, the "each
`and every" exposure theory.
`
`Torts > ... > Proof > Evidence > Burdens of Proof
`
`Michael Gorman
`
`

`

`INDEX NO. 620180/2016
`
`FILED: SUFFOLK COUNTY CLERK 07/27/2018 01:40 PM
`NYSCEF DOC. NO. 259
`RECEIVED NYSCEF: 07/27/2018
`Page 5 of 21
`48 Misc. 3d 460, *460; 11 N.Y.S.3d 416, **416; 2015 N.Y. Misc. LEXIS 1272, ***1272; 2015 NY Slip Op 25125,
`****1
`I granted defendant
`trial,
`to
`were insufficient evidence of general causation, as they
`190367/12). Prior
`showed only an association between mesothelioma and
`Volkswagen of America's motion for an order precluding
`work with friction products in a vehicle repair setting.
`expert testimony in the Fersch matter to the extent of
`Moreover, absent knowledge of the amount, duration, or
`ordering a hearing pursuant to Parker v Mobil Oil Corp,
`frequency of plaintiff's exposures to asbestos-containing
`7 NY3d 434, 857 NE2d 1114, 824 NYS2d 584 [2006]).
`dust from defendant's products, the expert could not
`Before the hearing commenced, the Fersch plaintiffs
`establish a dose-response relationship or quantify
`settled their claims against Volkswagen.
`plaintiff's exposures, and thus failed to provide a
`scientific expression of plaintiff's exposure to asbestos
`from defendant's products.
`
`A jury trial commenced, soon after which the Middleton
`plaintiffs discontinued their case in its entirety. Thus, the
`trial proceeded to verdict only in Juni and only as
`against defendant. After plaintiffs rested, defendant
`moved for an order striking the causation testimony of
`plaintiffs' experts and for a directed verdict based on the
`insufficiency of the evidence. I reserved decision.
`
`At the charge conference, the parties agreed that the
`jury would be asked whether Juni was exposed to
`asbestos from [*462] brakes, clutches, or gaskets sold
`or distributed by defendant, and would be presented
`with
`three alternative
`theories of
`liability against
`defendant: (1) common-law [***3] negligence, (2) strict
`products liability (failure to warn), and (3) products
`liability (negligence). While plaintiffs conceded that
`"[defendant] didn't manufacture brakes, clutches or
`gaskets . . . [defendant] manufactured cars," they
`argued that defendant could additionally be held liable
`for Juni's exposure to asbestos-containing replacement
`parts used in its vehicles. (Tr at 2396.) Absent any
`evidence that defendant intended or required, within the
`meaning of Berkowitz v A.C. & S., Inc. (288 AD2d 148,
`733 NYS2d 410 [1st Dept 2001]), that asbestos-
`containing replacement components be used in its
`vehicles, I declined to instruct the jury on whether
`defendant
`failed
`to warn Juni of
`the danger of
`components used in its vehicles. (Tr at 2401; see also
`Matter of New York City Asbestos Litig., 121 AD3d 230,
`251-252, 990 NYS2d 174 [1st Dept 2014], lv granted
`2014 N.Y. App. Div. LEXIS 9175, 2014 NY Slip Op
`92113[U]
`[no duty
`to warn absent evidence
`that
`defendant had active role, interest, or influence in types
`of products to be used with own product after placing it
`into stream of commerce].)
`
`The jury rendered its verdict finding that: (1) Juni was
`exposed to asbestos from brakes, clutches, or gaskets
`sold or distributed by defendant; (2) defendant failed to
`exercise reasonable care by not providing an adequate
`warning about the hazards of exposure to asbestos with
`respect [***4] to the use of the brakes, clutches,
`or [**419] gaskets; and (3) defendant's failure to warn
`Juni adequately was a substantial contributing factor in
`causing his injury. It then considered whether liability
`
`Counsel: Aaronson Rappaport Feinstein & Deutsch,
`LLP [***1] , New York City (Oded Burger of counsel),
`for Ford Motor Co., defendant.
`
`Weitz & Luxenberg, P.C., New York City (Pierre Ratzki
`of counsel), for plaintiffs.
`
`Judges: BARBARA JAFFE, JSC.
`
`Opinion by: BARBARA JAFFE
`
`Opinion
`
` [*461] [**417] Barbara Jaffe, J.
`
`Defendant Ford Motor Company moves posttrial for
`orders: (1) striking the causation opinions of plaintiffs'
`expert witnesses; [**418] and (2) dismissing the action
`and entering judgment as a matter of law in favor of it
`based on plaintiffs' failure to establish a prima facie case
`at trial; or, alternatively (3) setting aside the verdict
`rendered against it at trial and granting a new trial; (4)
`granting it leave to renew its opposition to plaintiffs'
`motion to consolidate and upon renewal, denying the
`motion to consolidate and granting a new trial; (5)
`the [****2] verdict as
`setting aside and remitting
`excessive and contrary to the weight of the evidence;
`and (6) reducing the verdict by offsets from settlements
`before entering judgment. Plaintiffs oppose.
`
`I. Background and Trial
`
`Plaintiffs sued defendant, and others who have since
`settled, claiming
`that exposure
`to asbestos
`from
`products manufactured or used by them or used at their
`premises caused plaintiff Arthur Juni (Juni) to develop
`and die from [***2] mesothelioma. The trial of this
`action was consolidated with two other actions, Fersch v
`Amchem Prods., Inc. (index No. 190468/12), and
`Middleton v Amchem Prods.,
`Inc.
`(index No.
`
`Michael Gorman
`
`

`

`FILED: SUFFOLK COUNTY CLERK 07/27/2018 01:40 PM
`NYSCEF DOC. NO. 259
`RECEIVED NYSCEF: 07/27/2018
`Page 6 of 21
`48 Misc. 3d 460, *462; 11 N.Y.S.3d 416, **419; 2015 N.Y. Misc. LEXIS 1272, ***4; 2015 NY Slip Op 25125, ****2
`
`INDEX NO. 620180/2016
`
`should be apportioned among the 16 other entities listed
`on the verdict sheet, and found that Juni had been
`exposed to asbestos in all 16 of the other entities'
`products or by use of their products, but that only one of
`them, nonparty Orange & Rockland Utilities (Orange
`and Rockland), had failed to exercise reasonable care
`by not providing an adequate warning about the
`potential hazard of exposure to asbestos, and that its
`failure to warn adequately was a substantial contributing
`factor in causing Juni's injury.
`
`After apportioning 49% of the liability to defendant and
`51% to Orange and [****3] Rockland, the jury found
`that defendant had acted recklessly. It awarded Juni $8
`million for his pain and suffering from the onset of his
`symptoms to his death on March 15, 2014, and to
`plaintiff Mary Juni $3 million for her loss of consortium.
`
` [*463] A. Juni's Pertinent Testimony
`
`Juni's deposition testimony was read to the jury.
`Beginning in 1964, he worked for Orange and Rockland
`in its Nyack garage [***5] as a third-class mechanic. (Tr
`at 623.)
`
`As a third-class mechanic, he pumped gas, changed oil,
`and greased vehicle parts. As a second-class mechanic,
`he changed car tires and assisted with one brake job a
`week. (Tr at 624-625, 646.)
`
`First-class mechanics worked on brakes. (Tr at 625.) In
`assisting
`them, Juni
`jacked up
`the vehicles and
`removed the tires. (Tr at 629.) In removing the brake
`drums, the mechanics dropped them on the ground,
`leaving brake dust that Juni swept up each night. (Tr at
`631, 1097-1099.) Juni also assisted the first-class
`mechanics with clutch replacement. (Tr at 638.) On
`defendant's F-600s, for example, first-class mechanics
`would remove the bell housing, thereby producing clutch
`dust. (Tr at 637.)
`
`The Nyack garage serviced different kinds of vehicles,
`including bucket trucks and defendant's dump trucks
`and service vans, on which mechanics would install
`replacement brakes. (Tr at 626-628.) Juni also assisted
`the first-class mechanics with replacing the clutches on
`defendant's vehicles. (Tr at 632-633, 639-640.)
`
`In 1966, Juni began working at Orange and Rockland's
`Spring Valley garage as a second-class mechanic,
`performing weekly brake work (tr at 641, 646), removing
`brake drums [***6] and dumping the dust on the
`ground, although he tried to dump it onto rags (tr at
`650). When he performed brake jobs, dust collected in
`
`the disc brake vent holes. (Tr at 1292.) Juni also
`replaced gaskets (tr at 1037, 1041), by removing parts
`of the engine, removing the gaskets using small Brillo
`pads (tr at 1042, 1044), and clearing out the area with
`an air gun (id.). At the end of each workday, workers
`used compressed air to clean up the dust, and they
`swept up the dust with brooms. (Tr at 1586-1587.)
`
`Juni was promoted to first-class mechanic in the late
`1960s (tr at 642). As a first-class mechanic, he serviced
`all kinds of vehicles manufactured by defendant. (Tr at
`646, 991.) Approximately 500 vehicles, mostly
`defendant's, were serviced at that garage during Juni's
`tenure. (Tr at 1052.) Almost weekly, Juni performed
`clutch work on defendant's bucket trucks. (Tr at 657,
`660-661, 1507.)
`
` [*464] After Juni became a foreman in the 1970s, he
`assisted other workers with brake work on defendant's
`vehicles. (Tr at 991-992.) He performed manifold gasket
`work on defendant's bucket trucks, replacing the original
`gaskets (tr at 994), and from [**420] 1970 to 1979, he
`assisted with clutch work once every three months. (Tr
`at 995.) [***7] After 1979, the garage serviced a fleet of
`16 to 18 of defendant's bucket trucks. Clutch jobs were
`performed once or twice a week. (Tr at 996, 999-1000.)
`
`Juni personally replaced or assisted with replacing
`clutches and
`installing
`replacement gaskets on
`defendant's C-8000s (tr at 1036-1038, 1042, 1512) and
`brakes on defendant's service vans, F-250s, and F-350s
`(tr at 1299-1300), and performing intake manifold work
`on its C-800s and C-8000s (tr at 1505-1507). He
`assisted when others installed gaskets. (Tr at 1595.)
`
`Juni also repaired his own and his family's vehicles,
`included defendant's vehicles. [****4] He
`which
`changed the engines and exhaust, and built a hitch on
`the back of one of defendant's 1965 F-100s. (Tr at 1077,
`1083-1084.) He twice changed the brakes. (Tr at 1086.)
`
`B. Expert Evidence
`
`1. Dr. Steven Markowitz
`
`To establish general causation, plaintiffs called Steven
`Markowitz, M.D., a board-certified physician specializing
`in internal and occupational medicine. As pertinent here,
`Markowitz testified that asbestos fibers have the ability
`to bypass the lung's defense mechanisms, depending
`on the quantity and size of the fiber. (Tr at 289.). He
`named chrysotile as
`the
`fiber most used
`in
`manufacturing brakes [***8] (tr at 296), and opined that
`"no level [of exposure to asbestos] has been identified
`
`Michael Gorman
`
`

`

`FILED: SUFFOLK COUNTY CLERK 07/27/2018 01:40 PM
`NYSCEF DOC. NO. 259
`RECEIVED NYSCEF: 07/27/2018
`Page 7 of 21
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`
`INDEX NO. 620180/2016
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`that separates out increased risk from no risk" (tr at
`308).
`
`According to Markowitz, 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," he stated, acts as a contributing
`factor. While Markowitz contended that no exposure
`may be discounted, no matter how remote
`the
`occurrence, as "it's
`the cumulative exposure
`that
`matters" (tr at 334-335), he also testified that exposure
`to one of defendant's brakes in a year and a half would
`not be a substantial contributing
`factor
`to
`the
`development of a worker's mesothelioma, that exposure
`to two of defendant's brakes during the same period
`would "probably not" be a substantial factor, and [*465]
`that there is "some point" where exposure does not
`constitute a substantial factor. (Tr at 435-436.) Still,
`Markowitz stated that "there's no magic number above
`which there's a substantial factor and below which
`there's not. The science doesn't permit us to say that.
`The more the exposure, the more contribution there is,"
`and the more the [***9] exposure, the greater the risk.
`(Tr at 443-444.)
`
`Markowitz also opined that when a worker manipulates
`or works with asbestos-containing material and creates
`visible dust, asbestos is released into the air (tr at 337),
`and that if it becomes airborne and is inhaled, the
`chrysotile fibers contained within friction products, such
`as brakes, clutches, and gaskets, can cause
`mesothelioma.
`
`Markowitz based his opinion on:
`
`1. "general knowledge" that chrysotile asbestos causes
`malignant mesothelioma;
`
`2. certain industrial hygiene studies of workers using
`friction products, some of which showed "elevated levels
`of asbestos in the air of garage mechanics who are
`working with friction products";
`
`due to asbestos as the result of their work repairing
`brakes, removing engine gaskets, working with [***10]
`clutches, and performing other similar functions;
`
`5. peer-reviewed literature in which the previously-
`mentioned studies are examined; and
`
`6. statements and findings made by agencies that have
`studied
`the
`issue,
`including
`the Environmental
`Protection Agency, Occupational Safety and Health
`Administration, and the World Trade Organization. (Tr at
`315-318.)
`
`The studies and literature on which Markowitz relied
`were neither identified nor offered in evidence, and on
`cross-examination, he conceded that the subjects of the
`industrial hygiene studies were factory workers who
`mass-produced friction products from raw asbestos and
`not garage workers, and that exposure to asbestos in
`the factory setting differs [*466] significantly from a
`mechanic's exposure to asbestos in a vehicle repair
`garage. (Tr at 397-398.) Markowitz also admitted that he
`was not aware of any epidemiological cohort studies
`supporting his opinion that there is an increased risk of
`contracting mesothelioma from exposure to auto brakes,
`clutches or gaskets.
`(Tr at 380.) Rather, he
`acknowledged that 21 of 22 studies "do not show much
`evidence
`in support of a
`relationship between
`mesothelioma
`and
`exposure
`to
`friction
`products," [***11] and reveal that for those who work
`with friction products, there is no increased risk of
`developing mesothelioma.
`
`Markowitz also allowed that it has been found that when
`asbestos fibers are mixed with certain resins used in
`manufacturing brakes,
`the
`fibers
`"would not be
`respirable" (tr at 426), and that in the "vast majority" of
`studies assessing the composition of debris formed from
`work performed on brakes, it was found that almost all
`of the asbestos in the brakes had been converted to a
`nontoxic substance, and that any resulting dust is
`composed of less than one percent asbestos. (Tr at
`457-458.)
`
`3. case series (individual and group reports) of
`malignant mesothelioma occurring among garage
`mechanics or those who work with friction products in
`the vehicle repair setting, which he believes [**421]
`"speaks to the evidence of a causal relationship in this
`instance";
`
`Notwithstanding the above concessions, and having
`discredited the 21 studies, inter alia, as based on data
`culled from a small number of subjects, Markowitz
`hewed to his opinion that working with friction products
`generally causes mesothelioma. (Tr at 320-321, 520-
`522.)
`
`4. evidence of those who work with friction products in
`vehicle repair who develop asbestos-related non-
`malignant diseases or some asbestos-related scarring
`
`2. Dr. Jacqueline Moline
`
`Dr. Jacqueline Moline, an expert in internal medicine
`
`Michael Gorman
`
`

`

`FILED: SUFFOLK COUNTY CLERK 07/27/2018 01:40 PM
`NYSCEF DOC. NO. 259
`RECEIVED NYSCEF: 07/27/2018
`Page 8 of 21
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`
`INDEX NO. 620180/2016
`
`and occupational and environmental medicine, testified,
`that based on her review of Juni's medical records and
`deposition transcripts (tr at 1345), Juni's cumulative
`exposures caused his mesothelioma, stating that it is
`not possible to separate out or [***12] exclude any
`particular exposure. (Tr at 1367.) In her opinion, "all" of
`Juni's occupational exposures constitute substantial
`contributing factors in causing his disease, and his
`cumulative lifetime exposure was sufficient to cause it.
`(Tr at 1369-1370.)
`
`On direct examination, Moline was asked to assume
`that: (1) from 1964 to 1988, Juni personally and
`regularly assisted in performing brake and clutch work
`including on defendant's brakes and clutches; (2) Juni
`assisted in removing defendant's original brakes and
`clutches and replacing them with defendant's new
`brakes and clutches; and (3) Juni's work created and
`exposed him to visible asbestos dust. Assuming the
`truth of
`these
`facts, Moline opined, within a
`reasonable [**422] degree of medical certainty, that
`Juni's "cumulative exposure to asbestos dust [*467]
`from [defendant's] brakes and clutches associated with
`[defendant's] vehicles was a substantial contributing
`factor to causing his mesothelioma." (Tr at 1370-1372.)
`
`Moline based her opinion on the following:
`
`1. her clinical experience interviewing and evaluating
`people whose exposures to asbestos were similar to
`Juni's;
` [****5]
`
`2. industrial hygiene studies in which elevated levels of
`dust were found to have emanated [***13] from the
`manipulation of brakes, and thereafter asbestosis was
`diagnosed in brake mechanics, which shows that there
`was exposure to asbestos from the manipulation;
`
`3. animal studies showing an association between
`mesothelioma and the type of asbestos used in brakes;
`
`4. human studies showing an association between
`asbestos and mesothelioma; and
`
`5. national and international research organizations
`holding the same opinion. (Tr at 1372-1373.)
`
`Moline equated Juni's testimony that he saw dust with
`evidence that he was in fact exposed to asbestos at
`levels above the minimum at wh