Jump to Navigation | Jump to Content
American Bar Association


Decisions Limiting Toxic-Tort Claims: Aberration or Potential Trend?

By Andrew J. Scholz – June 10, 2014


In defending against toxic-tort claims, New York stands out as one of the most difficult jurisdictions for defendants and their insurers. To illustrate, within the last decade, New York juries have rendered shockingly high multimillion-dollar verdicts in asbestos litigation as well as lead-paint litigation. See, e.g., In re New York City Asbestos Litig., Index Nos. 190008/12, 190026/12, 190200/12, 190183/12, 190184/12 (N.Y. Sup. Ct., N.Y. Cnty. July 13, 2013) ($190 million verdict involving consolidated trial of five plaintiffs); Sandra Guerrero v. 2246 Holding Corp. and Chama Holding Corp., Index No. 1683/2004 (N.Y. Sup. Ct., Kings Cnty. Oct. 17, 2007) ($5 million single plaintiff).

As for settlements, the World Trade Center disaster litigation stands out because, even though virtually all of the claims involved non-life-threatening-injury claims, the docket settled for over $700 million. In re World Trade Center Disaster Site Litig., Master Docket No. 21-MC-100 (S.D.N.Y.). The initial demands in toxic-tort cases have skyrocketed, with plaintiffs in mold cases—plaintiffs who are not in extremis—suing for hundreds of millions of dollars in damages. Chenensky v. Glenwood Mgmt. Corp., No. 120461/00 (N.Y. Sup. Ct., N.Y. Cnty. July 19, 2001). Beyond dealing with astronomical damage demands and verdicts, defendants also battle against a well-funded plaintiffs’ bar, difficult juries, and relatively loose standards for the admissibility of scientific testimony.

Despite the odds, defendants have strategically pressed certain defenses at the trial and appellate levels in an effort to reduce their collective exposure to such suits. For example, defendants are still fighting against the appropriateness of consolidated trials, the recoverability of punitive damages, and issues related to causation. It is therefore notable that in the last six months, New York’s highest court, the New York Court of Appeals, has addressed and rendered decisions related to the following liability and damages issues in toxic-tort cases: (1) causation as it relates to personal-injury-based mold claims and (2) recoverability of “medical monitoring” damages. These decisions reflect significant victories for defendants and potentially breathe new life into a number of unresolved liability and damages defenses in toxic-tort cases.

Causation Defense—Continued Success in Defeating Mold Claims
Causation is probably the most potent defense to any toxic-tort claim. If a plaintiff cannot meet his or her threshold burden in demonstrating with admissible scientific proof that an injury is causally related to exposure to a substance, the claim will never make it to trial. New York, however, possesses antiquated discovery rules that make it exceedingly difficult to challenge an expert’s causation opinions before trial. Courts will not always permit a Frye hearing on a motion in limineseeking to exclude an expert’s opinions. The practical result is that the first opportunity to challenge an expert’s opinions occurs at trial. Given that the vast majority of cases settle before trial, a number of causation issues in toxic-tort cases remain undecided.

Despite the obstacles, defendants have actually enjoyed some success in defeating certain types of toxic cases based on causation defenses, such as personal-injury-based mold claims. Over five years ago in Fraser v. 301-52 Townhouse Corp., 57 AD3d 416 (1st Dep’t 2008), the Appellate Division, First Department, dismissed a toxic-mold-based personal-injury claim on the grounds that the plaintiff’s expert causation opinions failed to meet New York’s Frye standard. In short, the First Department held that the epidemiological literature did not support the plaintiff’s expert’s general and specific causation opinions.

The Fraser decision stemmed from a 2006 court-of-appeals causation decision, Parker v. Mobil Oil. Parker had reaffirmed the long-standing general rule that the plaintiff must offer admissible expert proof of exposure and general and specific causation to prove a causal relationship between a toxic exposure and injury. Fraser became a significant impediment to would-be plaintiffs seeking to advance most mold claims.

Unfortunately (from the defense perspective), that changed two years ago in Cornell v. 360 West 51st Street, where the First Department—the very same court that had issued Fraser—modified the trial court’s decision precluding a plaintiff’s mold expert from testifying as to general causation issues. The trial court, after a lengthy Frye hearing, had determined that the plaintiff’s general and specific causation opinions were not generally accepted in the scientific community. The trial court also cited Fraser.

The First Department, however, reversed the trial court and distinguished its earlier Fraser decision based solely on two post-Fraser studies that the court determined “easily satisfied the test of scientific reliability set forth in Frye.” The First Department further held that the lower court “incorrectly interpreted our ruling in Fraser . . . as setting forth a categorical rule requiring dismissal of plaintiff’s toxic mold claim due to failure to meet the standard of scientific reliability set forth in Frye.”

Given the number of people residing in expensive apartments and homes within the footprint of the First Department (e.g., Manhattan high-rises), Cornell was observed by practitioners, insurers, and premises owners as a potential opening of the floodgates to mold claims. The court of appeals, however, agreed to review the First Department decision and, upon review, squarely reversed it. The court determined that the plaintiff’s experts failed to establish both general and specific causation between the plaintiff’s alleged injuries and exposure to mold. Citing Parker, the court specifically found that the plaintiff’s expert “departed from the generally accepted methodology for evaluating epidemiologic evidence when determining whether exposure to an agent causes a harmful effect or disease.” Therefore, the plaintiff’s two post-Fraser studies that showed an association between a damp indoor environment and the medical conditions that the plaintiff complained of did “not establish that the relevant scientific community generally accepts that molds cause these adverse health effects.” Furthermore, as to specific causation, the court determined that the plaintiff’s expert failed to “identify the specific disease-causing agent to which [the plaintiff] was allegedly exposed other than to vaguely describe it as ‘an unusual mixture of atypical microbial contaminants.’”

The Cornell decision will not eliminate all mold cases in New York. For now, though, the decision is a significant victory for premises owners and their insurers in fighting mold claims.

“Medical Monitoring” Damages Unavailable Absent Physical Manifestation
Depending on the type of case, damages in toxic-tort cases can be extremely high. Plaintiffs typically pursue traditional tort-based damages (e.g., pain and suffering, economic damages). However, damages in toxic cases are unique in that, in some jurisdictions, plaintiffs seek a type of damages known as “medical monitoring.” In essence, plaintiffs seeking a medical-monitoring claim assert that they were exposed to a toxic substance and, therefore, they need to be medically monitored and treated in the future. In many cases, plaintiffs demand a fund to pay for the monitoring as part of a global settlement.

As of a few months ago, New York’s courts were all over the map in determining whether medical-monitoring damages were available where the plaintiffs have not demonstrated that they are actually injured. At the end of 2013, however, the court of appeals in Caronia v. Philip Morris USA, Inc., 2013 N.Y. LEXIS 3476, 2013 N.Y. Slip. Op. 8372 (N.Y. Dec. 17, 2013), resolved the issue. In Caronia, the plaintiffs, purportedly on behalf of those smokers of a certain age but who did not suffer from cancer, brought an action that included a claim for medical monitoring in addition to traditional common-law claims of negligence and products liability.

The court of appeals determined that risk of future injury cannot support a claim for medical monitoring. The court overruled lower-court cases that held to the contrary and distinguished cases involving those with proven injuries. As a matter of public policy, the court found that the legislature is best able to decide whether and under what circumstances a medical-monitoring claim can be advanced in the absence of physical manifestation. The court also expressed concern for wasting the defendants’ resources in cases of no physical manifestation to the prejudice of plaintiffs with proven injuries.

Since Caronia,the Appellate Division, Third Department, in Ivory v. IBM, No. 516276 (N.Y. App. Div. Feb. 20, 2014) expanded on the Caronia holding. In Ivory, the plaintiffs-landowners claimed groundwater contamination from a local business facility and sought medical-monitoring expenses as consequential damages from exposure to contaminated drinking water. The court determined that, as for some plaintiffs, mere exposure to toxic substances fails to constitute a physical injury; as a result, only two of the plaintiffs who demonstrated physical manifestation could maintain a medical-monitoring damages claim. Caronia, and now Ivory, finally answer the question that a medical-monitoring claim cannot be asserted where the plaintiffs have not proven physical manifestation.

Recent defense victories on key liability and damages issues certainly represent a positive development to defendants in mold litigation and in cases involving medical monitoring. It is unclear whether the recent cases represent a trend or will be limited to unique situations.

Keywords: litigation, mass torts, toxic torts, mold claims, New York Supreme Court, asbestos

Andrew J. Scholz is a partner with Goldberg Segalla, LLP, in White Plains, New York.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).