Mesothelioma Motion: Court conclusion

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.

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