In re N.Y.C. Asbestos Litig.

207 A.D.3d 415

171 N.Y.S.3d 503

In the MATTER OF NEW YORK CITY ASBESTOS LITIGATION

14875-14875A

Index No. 190328/17

Case No. 2020-04856, 2020-04860

Supreme Court, Appellate Division, First Department, New York.

ENTERED July 19, 2022

Orrick, Herrington & Sutcliffe LLP, New York (E. Joshua Rosenkranz of counsel), for appellants.

Levy Konigsberg LLP, New York (Jerome H. Block of counsel), for respondents.

Kapnick, J.P., Friedman, Gonza´lez, Rodriguez, Pitt, JJ.

Judgment, Supreme Court, New York County (Gerald Lebovits, J.), entered November 30, 2020, in plaintiffs’ favor against defendants Johnson & Johnson and Johnson & Johnson Consumer, Inc. (together, J & J), unanimously reversed, on the law, without costs, and J & J's motion pursuant to CPLR 4404(a) to set aside the verdict and to enter judgment in its favor or to direct a new trial is granted to the extent of setting aside the verdict and directing entry of judgment in J & J's favor. Appeal from order, same court and Justice, entered on or about November 11, 2020, which, upon J & J's motion pursuant to CPLR 4404(a), vacated the jury's damages award and ordered a new trial unless plaintiffs stipulated to a reduced damages award, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. The Clerk is directed to enter judgment accordingly.

At trial, plaintiffs failed, as a matter of law, to carry their burden "to establish sufficient exposure to a substance to cause the claimed adverse health effect" ( Nemeth v. Brenntag N. Am., ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2022 N.Y. Slip Op. 02769, *1 [2022] [internal quotation marks omitted]; see also Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584, 857 N.E.2d 1114 [2006] [proof of causation in a toxic tort case must establish "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)"]; Dyer v. Amchem Prods. Inc., ––– A.D.3d ––––, 171 N.Y.S.3d 498, Appeal No. 13739 [1st Dept. 2022] [decided herewith]). To make such a showing, a plaintiff must present expert testimony providing a "scientific expression of the level of exposure to toxins in defendant's products that was sufficient to have caused the disease" ( Matter of New York City Asbestos Litig. [Juni], 148 A.D.3d 233, 235, 48 N.Y.S.3d 365 [1st Dept. 2017] [internal quotation marks and citation omitted], affd 32 N.Y.3d 1116, 91 N.Y.S.3d 784, 116 N.E.3d 75 [2018] ). Even if it is assumed that plaintiffs presented sufficient...