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Asbestos Case Tracker

Real-Time Court Decisions and Other Developments in Asbestos Litigation.

• Asbestos Case Tracker, New York, Summary Judgment

Floor Tile Manufacturer Granted Summary Judgment on Specific Causation in NYCAL

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Supreme Court of New York, New York County

In this asbestos action, Plaintiff Joseph Murawski alleged that he was exposed to asbestos from tile manufactured by defendant American Biltrite (“the defendant”) from 1963 to 1985. The defendant moved for summary judgment on general and specific causation grounds. First, the court rejected the defendant’s arguments regarding general causation and plaintiff’s smoking history being causative of his mesothelioma.

However, with regard to specific causation, the defendant argued that they met their burden as their proofs were nearly identical to the proofs offered in Dyer. Specifically, the defendant proffered expert reports from an industrial hygienist and medical experts. The industrial hygienist used his studies of the defendant’s tile to conduct a cumulative dose assessment. As a result of the cumulative dose assessment, the defendant contended that Plaintiff’s lifetime cumulative exposure were “well within the range of historic ambient or background levels of asbestos in the general air,” as well as “well and substantially below OSHA’s permissible exposure level [and] the EPA’s clearance level.” The defendant further argued that the medical experts “opined that any exposure [P]laintiff would have been exposed to from [the defendant’s tile] or other products containing chrysotile as a minority ingredient would not and could not have been causative of his mesothelioma.”

Thereafter, the defendant argued that Plaintiff failed to raise general issues of material fact as Plaintiff’s experts reports failed to establish specific causation as per Nemeth and Dyer, among other prior court decisions. In this matter, Plaintiff proffered supplemental reports from other doctors and an industrial hygienist. The defendant argued that the industrial hygienist’s opinions were flawed for the following reasons: (1) he calculated a dose assessment calculating all exposures to floor tiles generally and did not calculate a dose assessment as to only this defendant’s product; (2) that dose assessment considered work with a different product (sheet vinyl flooring that contained asbestos-felt backings) and there were no specific allegations that Plaintiff worked with that type of flooring made by this defendant; and (3) he relied on a single study for his calculations that involved a different product at issue (vinyl sheet flooring).

During oral argument, Plaintiff conceded that Plaintiff did not use sheet products manufactured by the defendant. However, among other arguments, Plaintiff argued that they met their burden. Plaintiff stated that mathematical modeling is one methodology which was found to demonstrate causation under Parker.  Plaintiff’s counsel further argued that this matter was similar to Pistone where both plaintiff and defendant offered calculations and opinions from their respective industrial hygienists. Finally, Plaintiff argued that this matter is analogous to Widercrantz, where a medical expert relied on a floor tile study to support his opinion.

Ultimately, the court granted the defendant’s motion on specific causation grounds. The court found that the defendant met its burden as “through its experts, [the defendant] has demonstrated that [P]laintiff’s cumulative exposure to asbestos from [the defendant’s] tiles, if any, would have been less than 0.007984 FCC years which is indistinguishable from ambient air exposure levels; and, hence, not causative of [P]laintiff’s mesothelioma.” The court also found that Plaintiff’s “experts . . . failed to satisfactorily provide a dose calculation that is representative of [P]laintiff’s exposure to asbestos from his work with and around [the defendant’s] tiles.” The court set forth that Plaintiff’s industrial hygienist estimated Plaintiff’s cumulative lifetime asbestos exposure from “various flooring activities” as 8.7 FCC years. Thereafter, the industrial hygienist estimated that Plaintiff encountered the defendant’s tiles twenty-three percent (23%) of the time during his career. Taking these numbers, the industrial hygienist calculated Plaintiff’s lifetime exposure to the defendant’s tiles as 2.0 FCC years. The court characterized this calculation as “overstated and not reliable as the 8.7 FCC years cumulative exposure was calculated based on activities that [P]laintiff did not perform with respect to [the defendant’s] tiles.” In support, the court cited Dyer and Styles v. GMC. While the industrial hygienist “used the average durations and average reported exposure levels for relevant floor work activities,” the industrial hygienist did not explain his rationale for “us[ing] the highest reported range for sheet floor removal, the lowest reported range for floor tile removal and the mean reported range for floor tile and sheet installations respectively.” The court also noted that there was “no evidence that [P]laintiff installed [the defendant’s] floor sheeting.” Further, “there is no evidence as to what percentage of [the defendant’s] tiles that [P]laintiff used contained asbestos.” As such, the medical expert specific causation opinions also fail as they are based on the industrial hygienist’s “flawed calculations.” Therefore, Plaintiff did not raise genuine issues of material fact as to specific causation. Thus, the court granted the defendant’s motion for summary judgment.