Mesothelioma Motion: Court conclusion
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The issue in this motion is whether the court should exercise its gatekeeping
function to hold a hearing on an limine motion to preclude evidence in a mesothelioma personal injury case where the alleged harmful exposure came from
asbestos contained in friction products.
For the reasons stated by the majority of judges who have dealt with this
specific issue and based on what appears to be clear direction from the First
Department in Brown v AC&S (supra), Lustenring v AC&S (supra), and
Matter of New York City Asbestos Litig. (supra), a Frye hearing to establish
causation or lack thereof for all cases in New York City Asbestos Litig. or for
these particular plaintiffs is not appropriate. See also Gayle v Port Auth. of
N.Y. & N.J. (6 AD3d 183 [1st Dept 2004]) rejecting defendant's posttrial
request for a Frye hearing where novel science was not involved. As the First
Department has stated, it is not novel science that exposure to asbestos causes
mesothelioma.
Moreover, defendants have not shown that it is not generally accepted by a
significant number of well-credentialed scientists and physicians that exposure
to friction products can be a cause or contributing factor to the development of
mesothelioma or other signature asbestos related diseases. While eminent
scientists, some of whom have been hired by or done work for friction
defendants, have reviewed or conducted epidemiological studies that demonstrate
that garage workers in general or garage mechanics in particular are not at
"increased risk," other epidemiological evidence shows that brake and clutch
mechanics may well be at increased risk.
The Australian registry of mesothelioma victims shows an apparent increased
risk of friction workers as do other peer reviewed articles describing relevant
studies. Chrysotile asbestos fibers have been found embedded in the pleural
tissue of brake mechanics who died of mesothelioma. Scientists and physicians
use various means to establish causation in particular situations, not the least
of which are toxicological and pathological studies and documented case studies.
While epidemiology may be the "gold" standard, it cannot be the only standard
in an area where causation is both particularistic and well established. Federal
courts have also held that epidemiological evidence is not necessary to
establish causation. (See In re Phenylpropanolamine (PPA) Prods. Liab. Litig.,
289 F Supp 2d 1230 [WD Wash 2003]; Christophersen v Allied-Signal Corp., 902 F2d
362 [5th Cir 1990].)
This court also agrees with Judge Kane who stated, "I agree with Judge
Colombo's observation that: 'It is not really important to have an
epidemiological study to determine whether the risk of cancer is increased by
asbestos exposure in every occupation.' " Where, as here, extensive
epidemiological evidence has been adduced that chrysotile fibers cause
mesothelioma and other asbestos diseases, and where it is undisputed that
defendant's products were made up of as much as 50% chrysotile, even though they
were embedded in resin and most but not all were shorter than five microns, and
where the plaintiffs developed mesothelioma, there is sufficient empiric
evidence to allow the jury to consider causation.
Weitz & Luxenberg is a leading plaintiffs' law firm that has represented
people affected by mesothelioma for over 20
years. Men and women diagnosed with mesothelioma or lung cancer caused by asbestos exposure may be
entitled to compensation from the companies responsible for their disease. If
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