Juni v. A.O. Smith Water Prods. Co. (In re N.Y.C. Asbestos Litig.)

32 N.Y.3d 1116

116 N.E.3d 75

91 N.Y.S.3d 784 (Mem)

In the MATTER OF NEW YORK CITY ASBESTOS LITIGATION.

Mary Juni, Individually and as Administratrix of the Estate of Arthur H. Juni, Jr., Deceased, Appellant,

v.A.O. Smith Water Products Co., et al., Defendants,Ford Motor Company, Respondent.

No. 123

Court of Appeals of New York.

November 27, 2018

OPINION OF THE COURTMEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Viewing the evidence in the light most favorable to plaintiffs, the evidence was insufficient as a matter of law to establish that respondent Ford Motor Company's conduct was a proximate cause of the decedent's injuries pursuant to the standards set forth in Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114 (2006) and Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 986 N.Y.S.2d 389, 9 N.E.3d 884 (2014). Accordingly, on this particular record, defendant was entitled to judgment as a matter of law under CPLR 4404(a).^*

FAHEY, J. (concurring).

I join the majority's memorandum decision, but write separately to highlight that, in my view, plaintiffs' proof failed to establish, by legally sufficient evidence, a connection between defendant Ford Motor Company's products and decedent's exposure to asbestos. I do not address any other issues of general or specific causation reached by the Appellate Division.

WILSON, J. (concurring).

I concur in the Court's opinion but write separately to explain what I see as the failure in the proof here. In brief, I believe that the failure of proof as to general causation identified by Supreme Court, and not any failure as to specific causation identified by the Appellate Division, warrants affirmance.

Mr. Juni spent his entire career working for Orange and Rockland utilities, where he was exposed to asbestos in various capacities. For 25 of those years, he worked as auto mechanic servicing Ford Motor Company (Ford) vehicles. As part of that job, Mr. Juni worked with Ford and other "friction" products (i.e., brakes and clutches) that contained chrysotile asbestos; his employment exposed him to other types of asbestos-containing products as well (e.g., during welding work or work in the powerhouse). There is no dispute that raw chrysotile asbestos greater than 5 microns in length is toxic and exposure to it carries increased risk for mesothelioma, or that Mr. Juni died of mesothelioma, and the proof is more than sufficient to establish that his exposure to asbestos caused his disease and death.

However, Ford adduced evidence that the process of manufacturing friction products under extreme temperatures alters the chemical composition of the asbestos, and the subsequent use of those products also subjects them to very high temperatures causing the conversion of the asbestos into a biologically inert substance called Forsterite. Plaintiffs did not produce an expert to rebut the argument that the physical properties of the asbestos in Ford's friction products had been so radically altered as to render conventional asbestos toxicology irrelevant. Instead, one of plaintiffs' causation experts testified extensively that chrysotile asbestos in its raw state caused mesothelioma. But when asked about chrysotile asbestos subjected to the extreme temperatures involved in the manufacture and use of friction products, he testified that he had not studied the release of chrysotile asbestos from friction products because he was "not an engineer or industrial hygienist." He further admitted that the only study of which he was aware on the subject of "the biological activity of this [heat-]altered state of chrysotile" concluded that "chrysotile biological activity is thereby greatly reduced, and can become virtually nil hundreds of degrees below" the relevant temperatures. He also opined that that the epidemiological studies examining a relationship between garage workers and mesothelioma failed to show a causal relationship, which he ascribed to data and methodological issues. Plaintiffs' other causation expert, when asked specifically about the high temperature transformation of asbestos to Forsterite, testified that "no one knows" whether the friction product dust to which Mr. Juni was exposed when replacing the used products was toxic. Supreme Court, in setting aside the jury verdict, relied on this same problem as to both of plaintiffs' experts (see Matter of N.Y. City Asbestos Litig., 48 Misc.3d 460, 482–86, 11 N.Y.S.3d 416 [Sup. Ct., N.Y. County 2015] ).

Thus, a necessary link in the proof of proximate cause was missing. I do not suggest that Ford is correct as a scientific matter; that question remains for the trier of fact in each case. Here, in my view, there was simply a gap in proof as to the toxicity of the products at issue (see Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 449–50, 824 N.Y.S.2d 584, 857 N.E.2d 1114 [2006] ["(the plaintiff's expert) concentrates on the relationship between exposure to benzene and the risk of developing AML—an association that is not in dispute. Key to this litigation is the relationship, if any, between exposure to gasoline containing benzene as a component and AML"] ).

RIVERA, J. (dissenting).

Arthur H. Juni, Jr. died of mesothelioma, a rare and fatal cancer caused by exposure to asbestos. He and his wife sued, among others, defendant Ford Motor Company, claiming Ford's failure to warn him of the dangers of exposure to its asbestos-containing products was a substantial cause of his illness. Mr. Juni passed away before trial and his wife substituted as administrator for his estate. Although the jury returned a verdict in his favor, finding Ford 49% liable, Supreme Court granted that part of Ford's motion to set aside the verdict pursuant to CPLR 4404(a), on the ground that the evidence was legally insufficient to support the verdict^* . That was error.

The jury heard testimony by way of Mr. Juni's deposition, that for over 25 years he worked as a garage mechanic, servicing Ford vehicles. On a daily basis, he was exposed to asbestos-laden dust from new and used brakes, clutches, and...