New York Law Review

Tag: toxic tort

  • Reeps v. BMW of North America, LLC, 115 A.D.3d 432 (1st Dept. 2014): Admissibility of Expert Testimony in Toxic Tort Cases

    115 A.D.3d 432 (1st Dept. 2014)

    Expert testimony on causation in toxic tort cases must be based on methodologies generally accepted as reliable within the scientific community, particularly regarding exposure levels.

    Summary

    In a personal injury case alleging that in utero exposure to gasoline vapor caused birth defects, the court addressed the admissibility of expert testimony concerning causation. The plaintiff’s experts relied on the mother’s reported symptoms (headaches, nausea, dizziness) to estimate the level of gasoline vapor exposure. The court held that this methodology was not generally accepted within the scientific community, and therefore, the expert testimony was inadmissible under the Frye standard. The court distinguished the methodology from the accepted “odor threshold” analysis, where exposure levels are estimated based on the minimum concentration detectable by smell. The Appellate Division affirmed the trial court’s preclusion of the expert testimony.

    Facts

    Debra R. drove a BMW 525i, which had a defective fuel hose, emitting a gasoline odor. She smelled gasoline during her pregnancy with Sean R. After the child was born with severe mental and physical disabilities, the parents sued BMW. The plaintiff offered expert testimony from Dr. Frazier and Dr. Kramer, who concluded that the gasoline vapor caused the child’s disabilities. They based their conclusions on the symptoms Debra R. experienced and studies of gasoline vapor exposure. BMW challenged the methodology used by these experts.

    Procedural History

    The trial court initially denied BMW’s motion for summary judgment, but later granted BMW’s motion to preclude the expert testimony of Dr. Frazier and Dr. Kramer, finding the methodologies were not generally accepted in the scientific community. The Appellate Division affirmed this decision, and certified a question to the New York Court of Appeals.

    Issue(s)

    Whether the trial court properly precluded expert testimony of Dr. Frazier and Dr. Kramer regarding causation, based on their methodology for determining gasoline vapor exposure.

    Holding

    Yes, because the methodology used by the plaintiff’s experts to estimate gasoline vapor exposure, based on reported symptoms, was not generally accepted within the scientific community, and therefore, the expert testimony was inadmissible under the Frye standard.

    Court’s Reasoning

    The court applied the Frye standard, which requires that expert testimony be based on methods generally accepted in the relevant scientific community. The court found that the experts’ methodology, which extrapolated exposure levels from reported symptoms, lacked a foundation in established scientific principles. The court distinguished this methodology from the “odor threshold” approach, which is accepted and relies on the lowest concentration of a substance detectable by smell. The experts failed to identify scientific literature or studies that validated their approach of working backward from symptoms to calculate exposure. The court also emphasized that “At a minimum, … there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are known to cause the kind of harm that the plaintiff claims to have suffered.” The court noted that the smell of a substance is not the same as a toxic level of exposure. The court noted “we have not dispensed with the requirement that a causation expert in a toxic tort case show, through generally accepted methodologies, that a plaintiff was exposed to a sufficient amount of a toxin to have caused his injuries”.

    Practical Implications

    This case underscores the critical importance of the Frye standard in New York and the need for scientific reliability in expert testimony, particularly in toxic tort litigation. Attorneys must ensure that their experts’ methodologies are widely accepted by the scientific community. Expert opinions in toxic tort cases, to be admissible, must demonstrate (1) exposure, (2) the toxin’s capacity to cause the injury, and (3) sufficient exposure to the toxin. Reliance on subjective symptoms alone to determine exposure levels is insufficient, and experts must employ established methods for determining exposure, such as measuring the substance’s concentration using the odor threshold. This case is important because it emphasizes the importance of grounding expert testimony in established scientific methodologies, and reinforces the significance of general acceptance in the scientific community as a prerequisite for admissibility.

  • Angelilli v. City of New York, 10 N.Y.3d 823 (2008): Standard for Dismissal Based on Causation at Pleading Stage

    10 N.Y.3d 823 (2008)

    On a motion to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true and determine only whether those facts fit within any cognizable legal theory; the motion should not be granted if the plaintiff has not been given adequate notice and opportunity to present all evidence relevant to causation.

    Summary

    Plaintiffs, residents near a landfill, sued New York City, alleging negligence in maintaining the landfill led to toxic exposure, causing illnesses. The City moved to dismiss, arguing the complaints failed to state a cause of action due to lack of causal connection. The trial court denied the motion, and the Appellate Division modified. The Court of Appeals affirmed, holding that because the City’s motion to dismiss was not converted to a motion for summary judgment, the plaintiffs were not required to present a complete evidentiary record on causation, and dismissal was inappropriate at this stage.

    Facts

    The City of New York owned and operated the Pelham Bay Landfill, which closed in 1978 after allegations of illegal dumping. In 1982, the City found the landfill’s water contained contaminants exceeding state standards, and it was listed as a hazardous waste site in 1983. Plaintiffs, living near the landfill, developed acute lymphoid leukemia or Hodgkin’s disease. They sued the City, alleging negligence in creating and maintaining the landfill led to toxic exposure and their illnesses.

    Procedural History

    Plaintiffs filed nine lawsuits between 1991 and 1993, which were later consolidated. In 2000, the City moved to dismiss under CPLR 3211 (statute of limitations and failure to state a cause of action) and 3212 (summary judgment). The City argued the plaintiffs could not establish a causal connection. The trial court denied the City’s CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action. The Appellate Division modified the order. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the City is entitled to dismissal of the plaintiffs’ complaints for failure to state a cause of action under CPLR 3211(a)(7) when the motion was not converted to one for summary judgment, thereby depriving plaintiffs of the opportunity to present all evidence relevant to a determination of causation.

    Holding

    No, because the City’s motion was never converted to one for summary judgment, plaintiffs were not put on notice of their obligation to make a complete record and come forward with all relevant evidence, therefore the City is not entitled to dismissal of the plaintiffs’ complaints for failure to state a cause of action.

    Court’s Reasoning

    The Court of Appeals emphasized the distinction between a CPLR 3211 motion to dismiss and a CPLR 3212 motion for summary judgment. On a motion to dismiss, the court accepts the facts alleged in the complaint as true and determines only whether those facts fit within any cognizable legal theory. Affidavits submitted at this stage are intended to remedy pleading defects, not to offer evidentiary support for properly pleaded claims. A motion for summary judgment, in contrast, seeks a determination that there are no material issues of fact for trial and assumes a complete evidentiary record.

    Because the City’s motion was never converted to one for summary judgment under CPLR 3211(c), the plaintiffs were not notified that they needed to present all their evidence related to causation. The court cited Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448 (2006). The court stated: “As the City’s motion was never converted to one for summary judgment, plaintiffs were not put on notice of their obligation to make a complete record and to come forward with any evidence that could possibly be considered.” Therefore, the City was not entitled to dismissal of the plaintiffs’ complaints for failure to state a cause of action at this preliminary stage.

  • MRI Broadway Rental, Inc. v. United States Mineral Products Co., 92 N.Y.2d 421 (1998): Accrual of Toxic Tort Claims for Property Damage

    92 N.Y.2d 421 (1998)

    In toxic tort cases involving property damage, the cause of action accrues upon initial exposure to the toxic substance, not when the contamination exceeds regulatory standards or when abatement is undertaken.

    Summary

    MRI Broadway Rental, Inc., owned a building constructed in 1971 with asbestos-containing materials. MRI sued the asbestos manufacturer in 1990, alleging continuous physical damage to the building from asbestos fibers and seeking damages for abatement costs and loss of value. The New York Court of Appeals held that the cause of action accrued when the asbestos was initially installed in the building, not when the building became “contaminated” or when MRI discovered the contamination. The court emphasized the need for a bright-line rule to provide certainty for potential defendants and avoid stale claims, and rejected basing accrual on fluctuating regulatory standards or an unascertainable date of contamination.

    Facts

    MRI owned a building constructed in 1971 using asbestos-containing fireproofing and insulation. MRI purchased the building in 1976 and retained Paramount Group, Inc. (PGI) as managing agent. By the early 1980s, MRI became aware of potential asbestos dangers, and tenants began expressing concerns. In 1983, MRI hired an environmental consultant to assess the asbestos. From 1986-1987, MRI conducted abatement work due to tenant complaints and to comply with local laws.

    Procedural History

    MRI sued the asbestos manufacturer on August 28, 1990. The Supreme Court initially denied the defendant’s motion for summary judgment. The Appellate Division reversed, granting summary judgment to the defendant, holding that the cause of action accrued before August 28, 1987. The Court of Appeals affirmed the Appellate Division’s decision.

    Issue(s)

    1. Whether the cause of action for property damage due to asbestos accrues upon the initial installation of the asbestos-containing materials or when the building becomes “contaminated” with friable asbestos.
    2. Whether CPLR 214-c, New York’s discovery rule for toxic torts, applies to revive MRI’s claim.

    Holding

    1. No, because the injury occurs when the asbestos is installed in the building.
    2. No, because the injury was discoverable before July 1, 1986, precluding application of the discovery rule under CPLR 214-c (6)(b).

    Court’s Reasoning

    The Court of Appeals relied on its precedent in Schmidt v. Merchants Desp. Transp. Co., which held that a cause of action arising from toxic exposure accrues upon initial exposure. The Court acknowledged that the “actual physical damage” rationale in Schmidt may be flawed, but reaffirmed its holding for practical and policy reasons. The court stated, “a bright line, readily verifiable rule was adopted in which, as a matter of law, the tortious injury is deemed to have occurred upon the introduction of the toxic substance into the body.” The Court found the Second Circuit’s reasoning in Maryland Cas. Co. v. Grace & Co. persuasive, noting that “the damage that building owners are seeking to `undo’ is not the fact that they discovered asbestos, but the fact of its incorporation in their buildings.” The Court rejected the “contamination” standard proposed by MRI, finding it difficult to define and subject to ever-changing regulatory standards. The Court also held that CPLR 214-c did not apply because MRI was or should have been aware of the presence of asbestos and its dangers before July 1, 1986. The court emphasized the need for predictability and certainty in assessing liability risks. “In keeping with the important purposes of avoiding stale claims and providing defendants with a degree of certainty and predictability in risk assessment, our precedents have rejected accrual dates which cannot be ascertained with any degree of certainty, in favor of a bright line approach.”

  • Rothstein v. Tennessee Gas Pipeline Co., 87 N.Y.2d 95 (1995): Application of the Toxic Tort Discovery Rule to Pre-1986 Exposures

    87 N.Y.2d 95 (1995)

    New York’s toxic tort discovery rule (CPLR 214-c) applies to actions where the exposure to a harmful substance occurred before July 1, 1986, but the injury was not discovered until after that date, unless the injury was discoverable before July 1, 1986, and the statute of limitations had already expired.

    Summary

    Ari Rothstein ingested Thorotrast, a radioactive contrast dye, in the late 1940s. He was diagnosed with liver cancer in 1988 and died shortly after. His widow sued the dye manufacturers in 1990, alleging his cancer was caused by the dye. The trial court dismissed the claim as time-barred, arguing that CPLR 214-c only applied if both exposure and discovery occurred after 1986. The Appellate Division reversed. The New York Court of Appeals affirmed, holding that CPLR 214-c applies even when exposure predates 1986, as long as the injury wasn’t discovered (or reasonably discoverable) until after that date and the statute of limitations had not already expired prior to that date.

    Facts

    • In 1948 or 1949, Ari Rothstein ingested Thorotrast, a radioactive contrast dye, during an X-ray procedure.
    • Approximately 40 years later, on December 6, 1988, Rothstein underwent exploratory surgery due to severe abdominal pain.
    • The surgery revealed a malignancy of his liver, and Rothstein died the same day from complications related to the cancer and surgery.
    • In September 1990, Rothstein’s widow sued the manufacturers of Thorotrast, alleging negligence, strict products liability, wrongful death, and breach of warranty.
    • The suit claimed Rothstein’s cancer was caused by the ingestion of the radioactive dye decades earlier.

    Procedural History

    • The Supreme Court dismissed the complaint, holding it was time-barred under CPLR 3211(a)(5). The court interpreted CPLR 214-c as applying only when both the exposure and discovery occurred after the statute’s effective date in 1986.
    • The Appellate Division reversed the Supreme Court’s dismissal regarding all causes of action except for breach of warranty.
    • The Appellate Division granted the defendants leave to appeal to the Court of Appeals and certified the question of whether its order was properly made.

    Issue(s)

    Whether CPLR 214-c, New York’s toxic tort discovery statute, applies to cases where the exposure to a harmful substance occurred before July 1, 1986, but the injury was not discovered until after that date.

    Holding

    Yes, because CPLR 214-c(6) states the section applies to acts or omissions occurring before, on, or after July 1, 1986, unless the injury was discovered or should have been discovered before that date, and the action was or would have been time-barred before that date.

    Court’s Reasoning

    The Court of Appeals emphasized that CPLR 214-c(6) states that the law applies to acts occurring prior to July 1, 1986, unless (1) the exposure occurred before July 1, 1986, (2) the injury was discovered or should have been discovered before July 1, 1986, and (3) the statute of limitations had expired before that date. The court rejected the argument that applying the law in this manner would render a related revival statute meaningless. The court stated that the revival statute only applied to specific substances (DES, asbestos, etc.) where actions were dismissed before the effective date due to the statute of limitations. CPLR 214-c, on the other hand, establishes an accrual mechanism for injuries discovered after the effective date, regardless of when the exposure occurred, provided the limitations period had not already expired. The court noted that CPLR 214-c was enacted to remedy the injustice of barring claims before victims were even aware of their injuries. The court stated, “The discovery rule was enacted to ‘remed[y] a fundamental injustice in the laws of our State which has deprived persons suffering from exposure to toxic or harmful substances from having an opportunity to present their case in court‘” (Governor’s Mem approving L 1986, ch 682, 1986 NY Legis Ann, at 288). Because Rothstein’s injury was allegedly not discovered until 1988, the cause of action was not time-barred until 1991, making the 1990 action timely. The court explicitly stated they were making no implications concerning causation at this procedural stage.

  • Jensen v. General Electric Co., 82 N.Y.2d 77 (1993): Statute of Limitations for Toxic Tort Property Damage Claims

    82 N.Y.2d 77 (1993)

    CPLR 214-c(2), the statute of limitations for property damage caused by exposure to substances, applies to actions for damages resulting from continuing trespass and nuisance, limiting the time to bring suit to three years from the date of discovery of the injury.

    Summary

    Plaintiffs sued General Electric (GE) and Albert J. Smaldone, Sr. and Sons, Inc., alleging property damage from hazardous waste contamination. GE had disposed of waste on a site later purchased by Smaldone. Plaintiffs discovered the contamination in 1986 but did not sue until 1990. The lower courts disagreed about whether the claim was time-barred under CPLR 214-c(2). The Court of Appeals held that the statute applied to continuing trespass and nuisance claims, barring the recovery of damages because the suit was filed more than three years after discovery, but did not affect the availability of equitable injunctive relief.

    Facts

    From 1958 to 1969, General Electric disposed of hazardous waste at the Moreau Site. In 1970, Albert J. Smaldone, Sr. and Sons, Inc. purchased the site. In 1984, GE contacted plaintiff Perkett for permission to place monitoring wells on her property. GE informed Perkett in December 1984 that her property was contaminated with trichloroethylene (TCE). In 1986, Perkett and Jensen took title to the property as joint tenants. GE sent Jensen technical data and notified him that wells on his property showed contamination.

    Procedural History

    Plaintiffs commenced an action in June 1990, seeking damages and an injunction. The defendants moved to dismiss based on CPLR 214-c(2). The Supreme Court granted the motion. The Appellate Division modified the order and reinstated the causes of action for damages and injunctive relief based on continuing trespass and nuisance. The Court of Appeals then modified the Appellate Division’s order, dismissing the damages claims.

    Issue(s)

    Whether CPLR 214-c(2) applies to actions for damages caused by continuing trespass and nuisance, thereby limiting the time to bring such actions to three years from the date the injury was discovered.

    Holding

    Yes, because CPLR 214-c(2) applies to actions for “injury to property caused by the latent effects of exposure to any substance,” encompassing continuing trespass and nuisance actions seeking damages. It does not affect the availability of equitable injunctive relief.

    Court’s Reasoning

    The court reasoned that CPLR 214-c(2) is a comprehensive statute designed to provide relief to injured parties who were previously barred from suing due to the old accrual rule, which started the statute of limitations running from the date of exposure. The court found no evidence that the legislature intended to exempt continuing nuisance and continuing trespass actions from the statute’s scope. The statute’s language is broad and inclusive, covering “injury to property caused by the latent effects of exposure to any substance.” The Court emphasized that it would be ironic for the courts to reformulate the enacted version of this statute. The purpose of CPLR 214-c (2) was to replace the archaic rule, which commences the three-year period for suit on the date that an exposure occurs. The court acknowledged that pre-CPLR 214-c(2), a common-law exception existed for continuing wrongs, but found that the new statute displaced the rationale for this exception, providing a balanced approach that protects both plaintiffs and defendants. The discovery rule allows plaintiffs who act timely to sue for all damages incurred since the wrong began, while defendants are not left potentially liable in perpetuity. As the statute applies only to actions “to recover damages,” it does not affect the availability of injunctive equitable relief. Dissenting opinions argued that the statute was only intended to address the accrual rule and not to abrogate common law rights related to continuing wrongs and that the majority’s approach compels plaintiffs to speculate about future economic loss.