Caligiuri v. AO Smith Corp. (N.Y. Sup. Ct., Feb. 9, 2024)

Our plain-English summary of Caligiuri v. AO Smith Corp. (New York Supreme Court, February 9, 2024).

Mario Caligiuri and Susan Caligiuri sued many companies in New York County. Mario Caligiuri's claim is about mesothelioma. One defendant, QCP, Inc., formerly Bakers Pride Oven Company, asked the court to bar three of the plaintiffs' causation experts: Drs. Jacqueline Moline, Arthur Frank and David Zhang. It argued that they used a cumulative exposure approach. It also argued that they did not measure how much exposure came from Bakers Pride products or show that this amount causes mesothelioma, citing Nemeth and Parker. The court applied the Frye test, under which the side offering expert testimony must show its method is generally accepted. Plaintiffs presented evidence that the method is generally accepted and has been accepted in similar cases. Bakers Pride offered no expert of its own and relied only on other cases in which different experts were found insufficient. The court treated its remaining arguments as going to the weight of the testimony and to whether plaintiffs can prove their case at trial. It denied the motion to preclude in full. It also noted that the motion was not one for summary judgment.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court
• Decided: February 9, 2024
• Citation: 2024 NY Slip Op 30438(U)
• Stage: Discovery or evidence ruling
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied defendant QCP, Inc. f/k/a Bakers Pride Oven Company's motion to preclude plaintiffs' causation experts Drs. Moline, Frank and Zhang, so plaintiffs prevailed on the motion.

What the court held. Under the Frye standard, the party offering expert testimony must show its methodology is generally accepted, and a defendant who offers no contrary expert and relies only on other cases has not shown otherwise. Objections that the experts failed to show sufficient exposure go to the weight of the testimony and plaintiff's prima facie case at trial, not to admissibility.

Issues decided: Expert Testimony.

The people and their exposure

• Mario Caligiuri: mesothelioma

The defendants

• QCP, Inc. f/k/a Bakers Pride Oven Company, Inc. (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Caligiuri v. AO Smith Corp. (January 8, 2024). The trial court denied defendant Olympic Glove & Safety Co.'s motion for summary judgment, so plaintiffs Mario and Susan Caligiuri's claims against Olympic continue.
• Caligiuri v. AO Smith Corp. (January 9, 2024). The trial court denied defendant QCP, Inc. f/k/a Bakers Pride Oven Company's motion for summary judgment, so plaintiffs Mario and Susan Caligiuri's claims against it continue.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Nemeth v. Brenntag N. Am. (New York Court of Appeals, 2022). The Court of Appeals reversed the Appellate Division and dismissed the complaint against Whittaker, Clark & Daniels, Inc., holding that the plaintiff's causation proof was legally insufficient, so the defendant won and the plaintiff lost the jury verdict.
• Sason v. Dykes Lumber Co., Inc. (New York Supreme Court, Appellate Division, 1st Dept., 2023). The Appellate Division affirmed the denial of Dykes Lumber Company's summary judgment motion, so plaintiff Raphael Sason's claims against Dykes Lumber continue.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2024 NY Slip Op 30438(U)

MARIO CALIGIURI, SUSAN CALIGIURI, Plaintiff,

v.

A.O. SMITH CORPORATION, AERCO INTERNATIONAL, INC., AII ACQUISITION LLC, BAKERS

PRIDE OVEN CO., INC., BAKERS PRIDE OVEN CO. LLC, BMCE INC., BRYAN STEAM LLC,

BURNHAM LLC, CARRIER CORPORATION, CRANE CO., DAV CORPORATION, DAVID

FABRICATORS OF NEW YORK, INC., ECR INTERNATIONAL, INC., FORT KENT HOLDINGS INC.,

FOSTER WHEELER ENERGY CORPORATION, GENERAL ELECTRIC COMPANY, GREENE, TWEED

& CO., INC., INDUSTRIAL HOLDINGS CORPORATION, INTERNATIONAL COMFORT PRODUCTS

LLC, ITT LLC, JOHN CRANE, INC., KOHLER COMPANY, LENNOX INDUSTRIES, INC., MORSE TEC

LLC, OLYMPIC GLOVE & SAFETY CO., INC., PARAMOUNT GLOBAL, QCP, INC., UNION CARBIDE

CORPORATION, UTICA BOILERS, INC., WEIL-McLAIN INC., JOHN DOE 1 THROUGH JOHN DOE 75

Defendant.

Index No. 190130/2022, Motion Seq. No. 003.

Motion October 24, 2023.

February 9, 2024.

Supreme Court, New York County.

AMENDED DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

It is ordered that this court sua sponte amends its Decision/Order dated Jan. 5, 2024 to correct a typo on page 2. The Decision/Order is amended as follows:

Upon the foregoing documents, it is ordered that the instant motion seeking to preclude plaintiff's causation experts Drs. Jacqueline Moline, Arthur Frank, and David Zhang is denied in accordance with the decision below.

Here, defendant QCP, Inc. f/k/a Bakers Pride Oven Company, Inc. ("Bakers Pride") seeks to preclude the abovenamed experts on the basis that they employ a cumulative exposure approach and have failed to quantify, with appropriate specificity under Nemeth v Brenntag N. Am., 38 NY3d 336 (2022), the level of exposure to plaintiff Mario Caligiuri from Bakers Pride products and establish that such level causes mesothelioma. Plaintiff opposes, highlighting denials of defendant's similar motions in other cases and the experts' qualifications, and identifying no concrete issues raised by moving defendant regarding the experts' methodologies. Plaintiff also notes that moving defendant offers no expert testimony of their own in this matter.

Expert testimony in New York must meet the Frye standard, as articulated by the Court of Appeals in People v Wesley. "The long-recognized rule of Frye v United States ... is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has `gained general acceptance' in its specified field." People v Wesley, 83 NY2d 417, 422 (1994) (citing Frye v United States, 293 F. 1013 [D.C. Cir. 1923]).

As to methodology, "[t]he burden of proving general acceptance rests upon the party offering the disputed expert testimony". Dovberg v Laubach, 154 A.D. 3d 810, 813 (2nd Dept 2017). Plaintiff has offered evidence herein to establish that all three experts are using a generally accepted methodology and one that has been accepted in many similar cases. See Plaintiffs' Memorandum of Law in Opposition to Defendant QCP, Inc.'s Motion to Preclude Plaintiff's Causation Experts, p. 3-8. Contrarily, moving defendant offers no expert opinion to dispute that these methods are not generally scientifically accepted. Moving defendant solely cites to other cases, including notable asbestos causation cases Parker v Mobil Oil Corp., 7 NY3d 434 (2006) and Nemeth, supra, in which causation testimony by the experts in those two individual cases were deemed

insufficient for those specific matters. Such reliance does not meet the burden under Frye. In the instant action, plaintiff has provided evidence that the three experts are using methods that are generally acceptable in the scientific community. Moving defendant's remaining arguments focus on the inadequacy of the experts' causation analysis to prove sufficient levels of exposure from defendant's products to cause illness. These are not arguments that apply to precluding the expert. These are arguments that apply to the weight of the expert's testimony and whether the plaintiff has established their prima facie case at the time of trial.

In a footnote in moving defendant's reply papers, defendant argues that "preclusion of plaintiffs experts under Parker/Nemeth creates an independent basis for summary judgment." Reply Memorandum of Law in Further Support of Defendant QCP, Inc.'s Motion to Preclude Plaintiffs' Causation Experts, p. 2, fn. 1. However, the instant motion is not one for summary judgment. Were defendant to have made a summary judgment argument on this issue, the appropriate standard for moving defendant would be found in Dyer v Amchem Products Inc., 207 AD3d 408, 409 (1st Dep't 2022). In Dyer, defendants were granted summary judgment not by "simply argu[ing] that plaintiff could not affirmatively prove causation" but by "affirmatively prov[ing], as a matter of law, that there was no causation." Id. Moving defendant has offered no such affirmative argument here to prove that their products could not have caused the plaintiff's injury, while plaintiffs have offered a conflicting viewpoint supported by multiple experts. The Appellate Division, First Department, recently affirmed this Court's decision in Sason v Dykes Lumber Co., Inc., et. al., 2023 NY Slip Op 05796 (1st Dep't 2023), stating that "the parties' competing causation evidence constituted the classic `battle of the experts' sufficient to raise a question of fact, and to preclude summary judgment. Here, plaintiffs experts have met the Frye standard sufficient to deny preclusion. Accordingly, it is

ORDERED that defendant Bakers Pride's motion to preclude plaintiff's experts' testimony is denied in its entirety; and it is further

ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this Decision/Order with notice of entry. This constitutes the Decision/Order of the Court.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites