The recent decision of New York’s Appellate Division, First Department, in Lotrean v. 3M Co. marks a notable victory for toxic tort defendants. The Lotrean decision emphasizes the exacting causation standard outlined by the New York Court of Appeals in Parker v. Mobil Corp. and Nemeth v. Brenntag N. Am. and confirms how this standard continues to allow defendants to prevail on summary judgment. Toxic tort defendants can use this decision to reinforce challenges to expert opinions that do not relate to the specific substance at issue or lack quantifiable estimations of exposure based on generally accepted methodology, positioning themselves to dispose of vulnerable claims at the summary judgment stage.
Parker/Nemeth Causation Standard
In Parker, the Court of Appeals held that plaintiffs must establish both general and specific causation in toxic tort cases, and clarified what constitutes a sufficient expert opinion on causation. As the Court articulated, general causation requires evidence that exposure to the specific substance at issue can cause the specific disease the plaintiff alleges is at issue. Specific causation requires evidence the plaintiff’s exposure reached sufficient levels to cause the plaintiff’s disease. Expert opinions must be generally accepted in the scientific community.
Parker involved a gas station employee who alleged that years of exposure from pumping gasoline caused him to develop acute myelogenous leukemia (AML). The Court dismissed the claims because the plaintiff did not establish specific causation, as his expert described his exposure from gasoline containing benzene as a component as “frequent” and “excessive,” without scientifically quantifying the level of exposure.
The Court emphasized that conclusory descriptions are insufficient, and expert methods must be scientifically accepted and tied to measurable exposure. The Court acknowledged that precise quantification of toxin exposure is often difficult. But the Court listed several potential methods of quantification, including analyzing exposure intensity, inputting a plaintiff’s work history into mathematical models, and comparing exposure of subjects in studies to the plaintiff’s exposure, all of which could establish causation, provided they are generally accepted in the scientific community. Without such quantification, however, expert opinions rely on conclusory descriptions or assumptions, which are insufficient to establish causation.
The Court has since applied its causation standard beyond the context of benzene and AML. In Nemeth, the Court rejected expert testimony that “brief or low level” asbestos exposure from talcum powder daily over more than a decade could cause mesothelioma. Because the plaintiff’s expert did not quantify what “low level” asbestos exposure meant, the plaintiff could not establish general causation. Together, Parker and Nemeth demonstrate that defendants may insist plaintiffs provide scientifically supported, quantifiable evidence of exposure.
Application of Parker/Nemeth Standard to Lotrean
Lotrean involved a plaintiff who alleged that, after working in auto-body shops for more than a decade, he developed myelodysplastic syndrome (MDS) from exposure to solvents containing benzene. The New York County Supreme Court denied various defendants’ summary judgment motions, and defendants appealed, arguing the plaintiffs could not establish causation between their products and MDS.
The First Department found the plaintiffs did not establish general and specific causation under the Parker and Nemeth framework. The court found the plaintiffs did not prove general causation because the plaintiffs’ experts did not link the solvents containing benzene as a component to MDS. Instead, the plaintiffs’ experts opined on the relationship between benzene and MDS, which the court characterized as inapplicable to the plaintiffs’ specific claim of MDS allegedly caused by exposure to solvents containing benzene.
Likewise, the First Department determined that the plaintiffs failed to show specific causation, noting the plaintiffs’ experts assumed each defendant’s solvent contained 0.1% benzene, but offered no evidence to support this assumption. Because the plaintiffs’ exposure calculations rested on an unsupported assumption, the plaintiffs lacked evidence the exposure was sufficient to cause his MDS.
The First Department’s analysis closely tracks Parker and Nemeth, reinforcing that expert opinion must quantify exposure and tie it directly to the specific substance and disease at issue.
Strategy Moving Forward
The Lotrean decision strengthens defendants’ ability to challenge causation in toxic tort litigation. It confirms that plaintiffs must link the alleged disease to the specific substance at issue, not merely a component of that substance. The decision further demonstrates that plaintiffs must present quantifiable evidence of exposure levels based on scientifically accepted methodology, and reaffirms that conclusory or assumption based opinions are insufficient, consistent with Parker and Nemeth.
Toxic tort defendants should leverage these precedents to press for summary judgment where plaintiffs’ experts fail to meet New York’s causation requirements. By proactively challenging expert methodology and demanding quantification, defendants can position themselves to dispose of claims before trial.
Law Clerk Eric K. Chubinsky contributed to this report.
Our Mass Torts and Industry-Wide Litigation Practice Group and Medical and Life Sciences Industry Team attorneys are following this issue and other important court decisions throughout New York and the nation. Should you have questions on this or related matters, please contact attorney Abbie L. Eliasberg Fuchs at (212) 313-5408 and afuchs@harrisbeachmurtha.com; attorney Alex Anolik at (212) 912-3502 and aanolik@harrisbeachmurtha.com; attorney Bradley M Wanner at (212) 912-3653 and bwanner@harrisbeachmurtha.com; or the Harris Beach Murtha attorney with whom you most frequently work.
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