Under CPLR 4404 (a), a court may set aside a verdict entered after trial if the verdict was not supported by legally sufficient evidence  On April 13, 2015, the trial judge, Justice Barbara Jaffe, set aside an $11 million verdict in a New York County case, Juni v. A.O. Smith Water Products Co., Et Al.  Arthur Juni was a mechanic who was allegedly exposed to asbestos through his work on automotive parts including brakes. He was diagnosed with mesothelioma in 2012 and died in 2014.

In setting aside the verdict, Justice Jaffe held that the plaintiffs' causation experts did not offer sufficient proof that exposure to friction products in the context of vehicle repair can cause mesothelioma. Citing the Court of Appeals decisions, Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006), and Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762 (2014), Justice Jaffe found that plaintiff’s experts’ opinion that the cumulative exposure to asbestos, no matter how small and without any quantification, was a substantial contributing factor to the development of a plaintiff’s mesothelioma was lacking in a proper foundation. This case was then appealed by Plaintiff.

On February 28, 2017, the First Department of the New York Appellate Division affirmed Judge Jaffe’s decision in Juni. In citing to Parker, the Appellate Division stated in toxic tort cases, an expert opinion on causation must set forth 1) a plaintiff’s exposure to a toxin, 2) that the toxin is capable of causing the particular injuries plaintiff suffered (general causation) and 3) that the plaintiff was exposed to sufficient levels of the toxin to cause such injuries (specific causation). Furthermore, the Court ultimately held that Plaintiff’s experts’ opinion testimony relying only on the existence of visible dust and the theory of cumulative exposure (that each and every exposure can be treated as contributing to causing an asbestos-related disease) is “irreconcilable with the rule requiring at least some quantification or means of assessing the amount, duration and frequency of exposure to determine whether exposure was sufficient to be found a contributing cause of the disease”.

While the decision in Juni references facts specific to automotive brake dust, it should have a broader applicability in future asbestos litigation. Plaintiff’s experts will now have to base their opinions on more than broad testimony stating only that there was visible dust which the Plaintiff breathed. It will be argued in defense of these cases that the Juni decision requires a more proof of a scientific nature and testimony regarding the specifics of the content of any dust, including citing specific scientific studies indicating the quantity of fiber released from a specific product type.  This is a very recent decision and there has not yet been an opportunity to review how it will be interpreted by the trial courts, however it is fairly certain that Juni has set a higher bar of proof for plaintiffs.

Should you have any questions regarding asbestos litigation or toxic torts, please feel free to contact Jessica Saad at jsaad@hoaglandlongo.com or (732) 545-4717.