New York Court of Appeals Affirms Higher Causation Standard in Asbestos Cases

By: Marc S. Gaffrey Practice Area: Environmental & Toxic Tort

It has often seemed that when defending asbestos lawsuits, courts come to the conclusion that contact with an asbestos product automatically makes the product hazardous and Plaintiffs’ experts merely have to opine that each and every contact with that product could cause disease.  New York Supreme Court Judge Barbara Jaffe’s decision to preclude Plaintiffs’ experts in the Juni matter changed the landscape of New York asbestos litigation.[1]  Specifically, Justice Jaffe precluded Plaintiffs’ experts since they did not take into consideration the specific properties of the defendant’s products and the epidemiology studies that support the defendant’s defenses.  As a result, Justice Jaffe vacated the verdict, which totaled $11 million dollars.  Thereafter, the First Department of the New York Appellate Division affirmed Justice Jaffe’s decision.    

On November 27, 2018, the New York Court of Appeals affirmed the Appellate Division’s decision.  In Matter of New York City Asbestos Litigation (Juni), 32 N.Y. 3d 1116 (2018), the Court of Appeals held that Plaintiff’s evidence was insufficient to satisfy the proximate cause standard under Parker/Cornell.  As such, the Court of Appeals noted that Judge Jaffe correctly set aside the verdict pursuant to CPLR 4404(a).  While Judge Fahey joined the majority’s decision, she noted that Plaintiff’s evidence did not show a connection between the defendant’s products and Plaintiff’s exposure to asbestos in a separate concurrence.  Justice Wilson also wrote a separate concurrence, highlighting that Plaintiff failed to prove general causation under the Parker/Cornell standard.  Essentially, Plaintiff’s experts failed to rebut the defendant’s expert’s contention that “the physical properties of the asbestos in the friction products had been so radically altered as to render conventional asbestos toxicology irrelevant.”[2] 

Judge Rivera dissented in this matter, writing that Judge Jaffe erroneously set aside the verdict pursuant to CPLR 4404(a).  Specifically, Judge Rivera contended that Plaintiff put forth sufficient evidence for the jury to be able to conclude that defendant’s products was a substantial cause of Plaintiff’s mesothelioma.  As such, the defendant did not meet their burden under CPLR 4404(a) to show that the jury’s verdict was utterly irrational.       

Notably, the Court of Appeals decision reinforces the notion that the Parker/Cornell standard of general and specific causation is the governing causation standard in New York asbestos litigation.  In addition, the Juni decision also shows that a plaintiff must prove both the general and specific causation standards at trial, as only meeting general causation or specific causation is insufficient to satisfy their burden.  Moving forward, these cases show the importance of the need for admissible scientific evidence to serve as the foundation for any medical opinions proffered at trial.[3]

The plaintiff’s bar will seek to limit the effect of Juni, arguing that in light of the concurring and dissenting opinions, it should be interpreted narrowly as applying only to its unique set of facts.  However, Juni gives attorneys representing defendants in New York asbestos litigation support from the highest appellate court in the state for the proposition that plaintiffs must prove general and specific causation through sufficient “scientific expression” by their experts.  Due to the acknowledged connection between exposure to asbestos and the development of certain forms of cancer, proving general causation in asbestos cases is normally not a formidable task.  By contrast, when proving specific causation, (i.e. that the factual circumstances regarding causation in a particular case are sufficiently supported by scientific evidence), the plaintiffs now have a greater burden as a result of the reasoning in Juni.

Where does that leave us?  Recently, Justice Mendez granted summary judgment to a defendant after Plaintiff alleged exposure to asbestos from their floor tile.[4]  Notably, Justice Mendez held that the plaintiff’s proofs failed to meet the Juni standard of specific causation.  Moving forward, will Juni only apply in circumstances where there has been repeated epidemiology testing on similar products, such as automobile brakes and clutches (Juni) or floor tiles (Mantovi)?  We expect that this issue will be clarified over the next several months.

For more information, please contact Marc S. Gaffrey or call (732) 545-4717 today.


[1] Matter of New York City Asbestos Litig., 48 Misc. 3d 460, 11 N.Y.S.3d 416 (2015).

[2] Juni, 32 N.Y. 3d 1116, 1119 (2018).

[3] Corazza v. Amchem Prods., Inc., 2019 N.Y. Slip. Op. 02413 (Index No. 190028/14, N.Y. App. Div. 1st Dep’t) (Decided on March 28, 2019).  

[4] Mantovi v. American Biltrite, Inc., 2019 N.Y. Slip. Op. 30247(U) (Index No. 190055/17, Sup. Ct., NY County) (Decided on January 29, 2019).