Cohen v. American Biltrite (2018)

Our plain-English summary of Cohen v. American Biltrite (New York Supreme Court, August 23, 2018).

Steven Andrew Cohen sued American Biltrite, Colgate-Palmolive and other defendants individually and as representative of the estate of Sandra Cohen, who died of mesothelioma. Before trial, Colgate-Palmolive moved to bar the testimony of plaintiff's expert, Dr. James Webber, an environmental health scientist and microscopist. The opinion does not describe how Sandra Cohen was exposed to asbestos. The court noted that plaintiff was not offering Dr. Webber on the effects of nonasbestiform cleavage fragments or on the cause of her mesothelioma, other than whether asbestos fibers can be breathed in. Whether he could testify about communications between the cosmetic industry association (CTFA) and the FDA depended on whether those communications were admissible and needed expert interpretation. He could not testify about either body's reasoning or motives. The court found no challenge to the scientific methods of his fields, so it ordered no hearing. It barred any opinion on what the law requires, and otherwise denied the motion, leaving trial objections open to Colgate-Palmolive.

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: August 23, 2018
• Citation: 62 Misc. 3d 861
• Docket: No. 190044/2016
• Stage: Discovery or evidence ruling
• State: New York

Outcome. The court largely denied Colgate-Palmolive's motion to preclude plaintiff's expert Dr. Webber, but barred any opinion on what the law requires or allows, without prejudice to objections at trial.

What the court held. An expert may testify on matters within his expertise, including interpreting communications if they are admissible and open to expert interpretation, but may not testify to others' motives or to what the law requires. Disputes over the expert's opinions did not challenge the scientific principles underlying them, so no pretrial hearing was needed.

Issues decided: Expert Testimony.

The people and their exposure

• Sandra Florence Cohen: mesothelioma; died

The defendants

• Colgate-Palmolive Company (manufacturer)
• American Biltrite Inc. (manufacturer)

Other decisions in this case

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

• Cohen v. American Biltrite Inc. (August 27, 2018). The court denied Colgate-Palmolive's motion for summary judgment because it failed to meet its initial burden to show the absence of asbestos in its talc, and in any event plaintiff raised factual issues on causation.

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.

62 Misc.3d 861 (2018)

89 N.Y.S.3d 826

2018 NY Slip Op 28420

STEVEN ANDREW COHEN, Individually and as Personal Representative of the Estate of SANDRA

FLORENCE COHEN, Deceased, Plaintiff,

v.

AMERICAN BILTRITE INC. etal., Defendants.

No. 190044/2016.

Decided August 23, 2018.

Supreme Court, New York County.

Quinn Emanuel Urquhart & Sullivan, LLP, New York City (Adam Abensohn of counsel), and Gordon Rees Scully Mansukhani, [*862] LLP, New York City (Erik C. DiMarco of counsel), for Colgate-Palmolive Company, defendant. Simon Greenstone Panatier, P.C., New York City (Leah C. Kagan and Joseph Mandia of counsel), for plaintiff. OPINION OF THE COURT

LUCY BILLINGS, J.

Defendant Colgate-Palmolive Company moves to preclude the testimony at trial of plaintiff's expert environmental health scientist and microscopist, James Webber Ph.D. Contrary to defendant's suggestion, plaintiff does not offer Dr. Webber to testify regarding the effects of nonasbestiform cleavage fragments or causation of the decedent Sandra Cohen's mesothelioma, other than the respirability of asbestos fibers, which is within his expertise.

The admissibility of Dr. Webber's opinions regarding communications between the Cosmetic, Toiletry and Fragrance Association (CTFA) and the United States Food and Drug Administration (FDA) depends on the admissibility of those communications and whether they are susceptible of expert interpretation (States v Lourdes Hosp., 100 NY2d 208, 212-213 [2003]; Styles v General Motors Corp., 20 AD3d 338, 340 [1st Dept 2005]), rather than simply the jurors' own lay interpretation without expert assistance. (People v Clyde, 18 NY3d 145, 154 [2011]; People v Santi, 3 NY3d 234, 246-247 [2004].) His expertise may allow him to testify whether, for example, the CTFA proposed and the FDA adopted, due to the absence of accurate or necessary data, a method to test for asbestos content that was insufficiently stringent or reliable. He may not testify regarding either entity's reasoning or motivations, of which he has no personal knowledge, although they may be expressed in the communications themselves. The relevance and hence the admissibility of the communications may depend in part on whether defendant participated in the CTFA's interactions with the FDA.

These issues, however, are not questions whether Dr. Webber's opinions are based on scientific principles or procedures that are not accepted in his fields of environmental health, epidemiology, toxicology, or microscopy. (People v Wesley, 83 NY2d 417, 427-428 [1994]; Matter of Carniol v New York City Taxi & Limousine Commn., 126 AD3d 409, 410-411 [1st Dept 2015]; Marsh v Smyth, 12 AD3d 307, 307-308 [1st Dept 2004]; see Sean R. v BMW of N. Am., LLC, 26 NY3d 801, 809-810 [*863] [2016]; Marso v Novak, 42 AD3d 377, 378 [1st Dept 2007]; Styles v General Motors Corp., 20 AD3d at 339-340; Lara v New York City Health & Hosps. Corp., 305 AD2d 106, 106 [1st Dept 2003].) Therefore no hearing is necessary to determine whether to preclude his opinions on this basis. Insofar as Dr. Webber has given testimony contrary to what he offers here, defendant may use that testimony, if admissible for impeachment, for that purpose.

Insofar as plaintiff offers Dr. Webber to testify regarding the applicability of any law or what the law allows or requires, the court precludes any such opinion. (Morris v Pavarini Constr., 9 NY3d 47, 51 [2007]; Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 7 [2005]; Lopez v Chan, 102 AD3d 625, 626 [1st Dept 2013]; McCoy v Metropolitan Transp. Auth., 53 AD3d 457, 459 [1st Dept 2008].) It is the task of plaintiff's attorney to advocate and the court's task to determine what laws apply and what they require or allow. The court otherwise denies defendant Colgate-Palmolive Company's motion to preclude Dr. Webber's testimony, without prejudice to defendant's objections at trial.

Sources

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