An important decision issued on February 28 by the Appellate Division, First Department, tees up a grand refresher course on New York’s legal standards for admitting expert testimony in toxic tort litigation—in this case, a claim on behalf of a deceased auto mechanic alleging that his mesothelioma was caused by asbestos found in defendant Ford Motor Company’s brakes, clutches and gaskets. This new decision, Matter of New York City Asbestos Litigation, 2017 NY Slip Op. 01523, 2017 N.Y. App. Div. LEXIS 1505 (1st Dep’t, Feb. 28, 2017), boasts an informative opinion for the court by Justice David B. Saxe; a concurring opinion by Justice Marcy L. Kahn reminding all that changes in the state’s jurisprudence on expert testimony must be made by the Court of Appeals; and a robust dissenting opinion by Justice Paul G. Feinman that adds some intellectual tension to the expert reliability issues. This opinion bundle teaches important lessons, and interested readers can learn about the big picture of what’s needed from experts. While the factual setting is an asbestos case with which many lawyers may not identify, the gleanings on experts’ opinions transcend asbestos.
Mrs. Juni, the auto mechanic’s widow, obtained an $11 million jury verdict against Ford Motor. Eight million dollars was for the decedent’s pain and suffering from symptom onset to death. Three million was for the widow’s loss of consortium. However, on post-trial motions, Supreme Court Judge Barbara Jaffe set aside the verdict and entered judgment for defendant because plaintiff’s expert proofs were deemed insufficient under expert reliability standards established in prior rulings by New York’s highest court. Juni v. A.O. Smith Water Products, 2015 N.Y. Misc. LEXIS 1168 (N.Y. Co. April 13, 2015). The latter precedents have come to be known as the Parker and Cornell decisions and are considered to be a road map for admitting or excluding experts’ scientific opinions and methodologies in New York state courts. Parker v. Mobil Oil, 7 N.Y. 3d 434 (2006); Cornell v. 360 W. 51st St. Realty, 22 N.Y. 3d 762 (2014).
