In Toxic Tort Case Court Holds That Defendant Failed To Demonstrate That Plaintiffs Cannot Establish...That Their Exposure...Caused The Illnesses...
December, 2007
The Appellate Division, Fourth Department, recently determined in B.T.N., an Infant, by his Mother and Natural Guardian, Deborah L. Netti, Deborah L. Netti, Individually, J.L.M., an Infant, by her Mother and Natural Guardian, Patricia A. Marcon, and Patricia A. Marcon, Individually, v. Auburn Enlarged City School District, 2007 N.Y. Slip.Op. 8561, 845 N.Y.S. 2d 614 (4th Dep’t 2007), that Defendant failed to demonstrate that Plaintiffs cannot establish that, based upon generally accepted scientific principles, their exposure to toxic substances in Defendant’s schools caused the illnesses for which they are seeking damages. Accordingly, the Court determined the Plaintiffs met their burden under the test established in Frye v. United States, 293 F. 1013 (1923) and created a triable issue of fact as to whether their exposure to the toxic substances caused their illnesses.
The Court noted that Defendant met its initial burden under Frye by submitting an expert’s Affidavit which established that there was no scientifically-based causal relationship between Plaintiffs’ exposure to the toxic substances and Plaintiffs’ symptoms. However, the Court stated that Plaintiffs were able to raise a triable issue of fact as to the causal relationship between exposure to the toxic substances and their illnesses.
The Court further determined that the record contained sufficient epidemiological evidence to support a finding of general causation, meaning that Plaintiffs were able to establish that exposure to the toxic substances (mold) found in Defendant’s schools can cause the symptoms of their illnesses. Further, the Court determined that the expert Affidavit submitted by Plaintiffs was sufficient to support a finding that Plaintiffs’ exposure to the mold in Defendant’s schools did, in fact, cause their illnesses. In so ruling, the Court stated that Plaintiffs are not required to have their expert precisely quantify their exposure levels or establish a specific dose-response relationship between exposure to the mold and their symptoms. Rather, the Court concluded that their expert could use a methodology generally accepted in the scientific community in concluding that their particular exposure to the toxic mold caused their symptoms.
Plaintiffs’ expert established “specific” causation, meaning that he demonstrated that Plaintiffs’ exposure to the toxic mold in Defendant’s schools did, in fact, cause their illnesses, by using the scientifically accepted methodology of differential diagnosis. Accordingly, since Plaintiffs’ expert used a generally accepted scientific methodology in finding that Plaintiffs’ illnesses were caused by their exposure to the toxic mold in Defendant’s schools, Plaintiffs met their burden under Frye and created a triable issue of fact as to whether or not their illnesses were, in fact, caused by their exposure to the toxic mold. The Court further determined that there was no basis in the record to support that part of Defendant’s motion seeking, in the alternative, to preclude Plaintiffs from presenting medical evidence at trial. Accordingly, the Court denied all aspects of Defendant’s motion and concluded that Plaintiffs met their burden under Frye of establishing that their exposure to the toxic mold in Defendant’s schools caused their illnesses.
Learning Point:
It is the burden of Defendants in toxic tort actions to demonstrate that Plaintiffs cannot meet their burden under Frye and establish that their exposure to toxic substances caused their illnesses. Generally, Defendants can meet this burden through the submission of an expert Affidavit stating that there is no causal relationship, either generally or specifically, between Plaintiffs’ exposure to the toxic substances and their diseases. However, once Defendants meet this burden, Plaintiffs can effectively rebut Defendant’s position by submitting an expert Affidavit which establishes, based upon a generally accepted scientific methodology, that their exposure to the toxic substances caused their illnesses. While Defendant in this case contended that Plaintiffs did not precisely quantify their exposure levels to the toxic mold or establish a specific dose-response relationship between exposure to the toxic mold and their diseases, the Court concluded that Plaintiffs were only required to demonstrate specific causation based upon a generally recognized scientific method, which Plaintiffs’ expert was able to do by using differential diagnosis methodology to establish that Plaintiffs’ exposure to the toxic mold caused their conditions.
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