Juni v. Ford Motor Co. (Matter of New York City Asbestos Litigation, 2018)

Our plain-English summary of Matter of New York City Asbestos Litigation (New York Court of Appeals, November 27, 2018).

Arthur Juni died of mesothelioma. His wife, Mary Juni, sued Ford Motor Company and others in New York City, individually and as administratrix of his estate. The concurring opinions describe him as a lifelong employee of Orange and Rockland Utilities who worked about 25 years as an auto mechanic servicing Ford vehicles. In that work he handled Ford brakes and clutches containing chrysotile asbestos. A jury found Ford 49% liable, but the trial court set aside the verdict as legally insufficient, and the Appellate Division upheld that ruling. The Court of Appeals affirmed in a short memorandum. It held that, viewing the evidence in plaintiff's favor, the proof was not enough as a matter of law to show Ford's conduct was a proximate cause of his injuries. Judge Fahey said the proof did not connect Ford's products to the exposure. Judge Wilson said plaintiff's experts did not address whether asbestos heated in making and using friction products was still toxic. Judge Rivera dissented, finding the verdict supported by the evidence.

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 Court of Appeals
• Decided: November 27, 2018
• Citation: 32 N.Y.3d 1116
• Docket: No. 123
• Stage: Appeal from post-trial motions
• State: New York

Outcome. The Court of Appeals affirmed the Appellate Division's order, leaving in place the setting aside of the jury verdict against Ford Motor Company, so plaintiff Mary Juni lost and Ford won judgment as a matter of law.

What the court held. Viewing the evidence in plaintiff's favor, it was legally insufficient to establish that Ford's conduct was a proximate cause of the decedent's mesothelioma under Parker v Mobil Oil Corp. and Cornell v 360 W. 51st St. Realty, so Ford was entitled to judgment as a matter of law under CPLR 4404 (a).

Issues decided: Causation, Expert Testimony, Trial Procedure and Discovery, Product Identification.

Why this case is relevant

The New York Court of Appeals affirmed, in a memorandum, the setting aside of a jury verdict against Ford. It held that, even viewing the evidence in the plaintiff's favor, the proof was legally insufficient to show that Ford's conduct was a proximate cause of the decedent's mesothelioma under the Parker and Cornell causation standards. It rested that ruling on "this particular record." The concurring judges gave different reasons. Judge Fahey found no proven link between Ford's products and the exposure. Judge Wilson found a gap in proof on whether the asbestos in Ford's friction products was still toxic. Judge Rivera dissented.

Later decisions often cite it together with the Appellate Division ruling it affirmed. Appellate Division panels have used that pairing for two points: a plaintiff needs expert testimony giving a "scientific expression" of exposure sufficient to cause disease, and exposure to dust alone is not enough. One Appellate Division panel also noted that exact mathematical precision in quantifying exposure is not required. Another Appellate Division panel rejected a defendant's argument that this decision compelled a different result. A federal court in the Southern District of New York cited it on insufficient proof of proximate causation. In numerous trial-level summary judgment motions, defendants invoked it alongside Parker and Cornell.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Arthur H. Juni, Jr.: mesothelioma; died

Who	Work	Where	When	Products
Arthur H. Juni, Jr.	auto mechanic servicing Ford vehicles (power plants and utilities)	Orange and Rockland Utilities	25 years	brakes, clutches and friction materials, chrysotile, Ford brakes and clutches (friction products)

The defendants

• Ford Motor Company (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Mtr OF Nyc Asbestos Litig. (New York Court of Appeals, 2016). The Court of Appeals affirmed both Appellate Division orders, leaving in place the plaintiffs' jury verdicts against Crane Co. in the Dummitt and Suttner mesothelioma cases.
• Mtr OF Nyc Asbestos Litig. (New York Supreme Court, Appellate Division, 1st Dept., 2017). The Appellate Division affirmed the judgment for Ford Motor Company, upholding the trial court's order setting aside the jury's verdict for plaintiff Mary Juni, and dismissed the appeal from the order as subsumed in the appeal from the judgment.

Later decisions citing this one

25 later decisions in our library cite this one:

• Olson v. Johnson & Johnson (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2022). The First Department reversed the judgment for plaintiffs against Johnson & Johnson and directed entry of judgment for J&J, because plaintiffs' expert proof of causation was legally insufficient; the appeal from the damages-reduction order was dismissed as subsumed.
• Stock v. Jenkins Bros. (Matter of Eighth Judicial District Asbestos Litigation) (New York Supreme Court, Appellate Division, 4th Dept., 2020). The Fourth Department unanimously affirmed the order denying both Jenkins Bros.' and plaintiff Lynn Stock's post-trial motions, leaving the jury verdict for plaintiff in place.
• Matter of New York City Asbestos Litig. v. Air & Liquid Sys. Corp. (New York Supreme Court, Appellate Division, 1st Dept., 2020). The First Department upheld the jury's liability verdict against the Federal-Mogul Asbestos Personal Injury Trust (successor to Felt Products) but ordered a new trial on past pain and suffering and past loss of consortium unless plaintiff agreed to reduce those awards to $5.5 million and $650,000.
• Nemeth v. Brenntag N. Am. (New York Supreme Court, Appellate Division, 1st Dept., 2020). The Appellate Division modified the judgment against Whittaker, Clark & Daniels (WCD) to increase it to $3,300,000 because the trial court had miscalculated the settlement offsets, and otherwise affirmed the plaintiff's jury verdict; one judge dissented and would have entered judgment for WCD.
• Ford v. AO Smith Water Products (New York Supreme Court, Appellate Division, 1st Dept., 2019). The First Department modified the judgment against Burnham LLC, vacating the $2 million future pain and suffering award and ordering a new trial on those damages unless plaintiff stipulated to reduce it to $500,000, and otherwise affirmed the verdict for plaintiff.
• Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, 1st Dept., 2019). The Appellate Division reversed the judgment entered on a jury verdict for plaintiff, granted Whittaker Clark & Daniels' motion for judgment notwithstanding the verdict, and dismissed the complaint against it.
• Phelps v. CBS Corporation (U.S. District Court, Southern District of New York, 2020). The court granted in part and denied in part Crane Co.'s motions to exclude plaintiff's experts (excluding part of the lost-earnings and fringe-benefit testimony) and denied Crane Co.'s motion for summary judgment, so the estate's claim against Crane Co. goes forward.
• Luca v. American Int'l Indus. (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The court denied American International Industries' motion for summary judgment dismissing the complaint and cross-claims, and its alternative motion to dismiss the punitive damages claims, so the plaintiffs (the Luca estate and widow) won.
• Luca v. Whittaker, Clark and Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2020). The court denied Whittaker, Clark and Daniels' motion for summary judgment dismissing the plaintiffs' complaint and cross-claims, and its alternative request to dismiss the punitive damages claim, so the plaintiffs' claims go forward.
• Olson v. Brenntag N. Am., Inc. (New York Supreme Court, 2020). The trial court denied Johnson & Johnson's motions for judgment as a matter of law and for a new trial on liability, but vacated the damages awards and ordered a new trial on damages unless the Olsons accept reduced compensatory and punitive awards.
• Schrank v. Amchem Prods., Inc. (New York Supreme Court, 2020). The trial court granted Ford Motor Company's motion for summary judgment and dismissed the complaint and cross claims against Ford, finding the plaintiffs' experts failed to show specific causation.
• Stock v. Jenkins Bros. (IN the Matter of the Eighth Judicial District Asbestos Litigation) (New York Supreme Court, Erie, 2019). The trial court denied defendant Jenkins Bros.' motions for judgment notwithstanding the verdict, a new trial and remittitur, and also denied the plaintiffs' motion for a separate jury charge or new trial on future household services, leaving the verdict for the Stocks in place.
• Carlstrand v. Mannington Mills (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The trial court denied defendant Mannington Mills, Inc.'s motion for summary judgment dismissing the plaintiffs' complaint and all cross-claims, so the plaintiffs' claims against it continue.
• Rosen v. Fisher Scientific Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The trial court denied Fisher Scientific Company, LLC's motion for summary judgment (and its alternative request for a hearing on plaintiff's experts' methodology), so plaintiff Michael Rosen's claims against Fisher go forward.
• Hernandez v. Whittaker, Clark & Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court granted Whittaker, Clark & Daniels' summary judgment motion only for claims after 2004 and for talc sold to Johnson & Johnson for Baby Powder in 1976-1983, and denied it otherwise, so plaintiffs' claims over talc supplied to Avon for 1960-2004 and punitive damages go to trial.
• Lattanzio v. Rockwell Automation (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied Rockwell Automation, as successor to Allen-Bradley, summary judgment dismissing plaintiffs' complaint and cross-claims, so plaintiffs Philip and Kathleen Lattanzio won the motion.
• Gayoso v. Nissan North America (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied Nissan North America's motion to dismiss for lack of personal jurisdiction, finding the defense waived, and denied its alternative request to preclude plaintiffs' causation expert and for summary judgment on causation, so plaintiffs prevailed.
• Young v. Whittaker, Clark & Daniels (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The trial court denied defendant Whittaker, Clark & Daniels' motion for summary judgment, so plaintiffs Kim and J.C. Young's claims, including punitive damages, proceed to trial.
• Young v. Avon Prods. (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court granted Avon Products' summary judgment motion only as to the conspiracy and loss of consortium claims, which were dismissed, and denied it on causation and punitive damages, so the plaintiffs' claims proceed to trial.
• Djokic v. Steel Grip (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied Steel Grip's summary judgment motion on causation but granted it as to the spousal loss of consortium claim, dismissing Venetia Kontogouris's individual claim; plaintiffs largely prevailed.
• Linsky v. Mannington Mills (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The trial court denied Mannington Mills, Inc.'s motion for summary judgment dismissing plaintiff Allison Linsky's complaint and all cross-claims, finding issues of fact on general and specific causation.
• Albin v. Mannington Mills (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied Mannington Mills, Inc.'s motion for summary judgment dismissing the Albins' complaint and all cross-claims against it, so the plaintiffs prevailed on the motion.
• Carlstrand v. American Biltrite (In re New York City Asbestos Litigation) (New York Supreme Court, 2019). The court denied defendant American Biltrite, Inc.'s motion for summary judgment to dismiss plaintiffs' complaint and all cross-claims, finding fact issues on general and specific causation.
• Matter of Marzigliano v. Amchem Prods., Inc. (New York Supreme Court, 2019). The trial court denied Mannington Mills, Inc.'s motion for summary judgment dismissing plaintiffs' complaint and all cross-claims, finding fact issues on general and specific causation.
• Moldow v. AI Friedman, LP (New York Supreme Court, 2019). The court denied Colgate-Palmolive Company's motion for summary judgment dismissing plaintiff Chris Moldow's complaint, the cross-claims and the punitive damages claim, finding issues of fact for trial.

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.

32 N.Y.3d 1116 (2018)

116 N.E.3d 75

91 N.Y.S.3d 784

2018 NY Slip Op 08059

In the Matter of NEW YORK CITY ASBESTOS LITIGATION.

MARY JUNI, Individually and as Administratrix of the Estate of ARTHUR H. JUNI, JR., Deceased,

Appellant,

v.

A.O. SMITH WATER PRODUCTS CO. etal., Defendants, and

FORD MOTOR COMPANY, Respondent.

No. 123.

Argued October 16, 2018.

Decided November 27, 2018.

Court of Appeals of New York.

Weitz & Luxenberg, P.C., New York City (Alani Golanski of counsel), for appellant.

[*1118] McGuire Woods, LLP, Richmond, Virginia (J. Tracy Walker, IV, of the Virginia bar, admitted pro hac vice, and Tennille J. Checkovich of counsel), and Aaronson Rappaport Feinstein & Deutsch, LLP, New York City (Nancy L. Pennie of counsel), for respondent.

Lipsitz & Ponterio, LLC, Buffalo (John Ned Lipsitz of counsel), for Philip J. Landrigan and others, amici curiae. Nathan A. Schachtman, Esq., P.C., New York City (Nathan A. Schachtman of counsel), and Crowell & Moring, LLP, Washington, D.C. (William L. Anderson, of the District of Columbia bar, admitted pro hac vice, of counsel), for Coalition for Litigation Justice, Inc., and others, amici curiae.

Belluck & Fox, L.L.P., New York City (Seth A. Dymond of counsel), for Military-Veterans Advocacy, Inc., amicus curiae. Atlantic Legal Foundation, Harrison (Martin S. Kaufman of counsel), for John Henderson Duffus and others, amici curiae. [*1117] OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. Viewing the evidence in the light most favorable to plaintiff, the evidence was insufficient as a matter of law to establish that defendant Ford Motor Company's conduct was a proximate cause of the decedent's injuries pursuant to the standards set forth in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]) and Cornell v 360 W. 51st St. Realty, LLC (22 NY3d 762 [2014]). Accordingly, on this particular record, defendant was entitled to judgment as a matter of law under CPLR 4404 (a).[*] FAHEY, J. (concurring).

I join the majority's memorandum decision, but write separately to highlight that, in my view, plaintiff's proof failed to establish, by legally sufficient evidence, a connection between defendant Ford Motor Company's products and decedent's exposure to asbestos. I do not address any other issues of general or specific causation reached by the Appellate Division. [*1119] Wilson, J. (concurring).

I concur in the Court's opinion but write separately to explain what I see as the failure in the proof here. In brief, I believe that the failure of proof as to general causation identified by Supreme Court, and not any failure as to specific causation

identified by the Appellate Division, warrants affirmance.

Mr. Juni spent his entire career working for Orange and Rockland Utilities, where he was exposed to asbestos in various capacities. For 25 of those years, he worked as an auto mechanic servicing Ford Motor Company (Ford) vehicles. As part of that job, Mr. Juni worked with Ford and other "friction" products (i.e., brakes and clutches) that contained chrysotile asbestos; his employment exposed him to other types of asbestos-containing products as well (e.g., during welding work or work in the powerhouse). There is no dispute that raw chrysotile asbestos greater than five microns in length is toxic and exposure to it carries increased risk for mesothelioma, or that Mr. Juni died of mesothelioma, and the proof is more than sufficient to establish that his exposure to asbestos caused his disease and death.

However, Ford adduced evidence that the process of manufacturing friction products under extreme temperatures alters the chemical composition of the asbestos, and the subsequent use of those products also subjects them to very high temperatures causing the conversion of the asbestos into a biologically inert substance called Forsterite. Plaintiffs did not produce an expert to rebut the argument that the physical properties of the asbestos in Ford's friction products had been so radically altered as to render conventional asbestos toxicology irrelevant. Instead, one of plaintiffs' causation experts testified extensively that chrysotile asbestos in its raw state caused mesothelioma. But when asked about chrysotile asbestos subjected to the extreme temperatures involved in the manufacture and use of friction products, he testified that he had not studied the release of chrysotile asbestos from friction products because he was "not an engineer or industrial hygienist." He further admitted that the only study of which he was aware on the subject of "the biological activity ... [of] this [heat-]altered state of chrysotile" concluded that "[c]hrysotile biological activity is thereby greatly reduced, and can become virtually nil hundreds of degrees below" the relevant temperatures. He also opined that the epidemiological studies examining a relationship between garage workers and mesothelioma failed to show a causal relationship, which he ascribed to data and methodological [*1120] issues. Plaintiff's other causation expert, when asked specifically about the high temperature transformation of asbestos to Forsterite, testified that "no one knows" whether the friction product dust to which Mr. Juni was exposed when replacing the used products was toxic. Supreme Court, in setting aside the jury verdict, relied on this same problem as to both of plaintiff's experts (see Matter of New York City Asbestos Litig., 48 Misc 3d 460, 482-486 [Sup Ct, NY County 2015]).

Thus, a necessary link in the proof of proximate cause was missing. I do not suggest that Ford is correct as a scientific matter; that question remains for the trier of fact in each case. Here, in my view, there was simply a gap in proof as to the toxicity of the products at issue (see Parker v Mobil Oil Corp., 7 NY3d 434, 449-450 [2006] ["(the plaintiff's expert) concentrates on the relationship between exposure to benzene and the risk of developing AML — an association that is not in dispute. Key to this litigation is the relationship, if any, between exposure to gasoline containing benzene as a component and AML"]).

RIVERA, J. (dissenting).

Arthur H. Juni, Jr., died of mesothelioma, a rare and fatal cancer caused by exposure to asbestos. He and his wife sued, among others, defendant Ford Motor Company, claiming Ford's failure to warn him of the dangers of exposure to its asbestos-containing products was a substantial cause of his illness. Mr. Juni passed away before trial and his wife substituted as administrator for his estate. Although the jury returned a verdict in his favor, finding Ford 49% liable, Supreme Court granted that part of Ford's motion to set aside the verdict pursuant to CPLR 4404 (a), on the ground that the evidence was legally insufficient to support the verdict.[*] That was error.

[*1121] The jury heard testimony by way of Mr. Juni's deposition that for over 25 years he worked as a garage mechanic, servicing Ford vehicles. On a daily basis, he was exposed to asbestos-laden dust from new and used brakes, clutches, and manifold and engine gaskets. That dust emanated from parts worked on by himself and other mechanics in the surrounding work area. The jury also heard expert testimony that during the time of Mr. Juni's exposure, Ford's vehicle parts contained chrysotile asbestos, which had been linked to mesothelioma. Another expert opined that the presence of visible dust is a scientifically recognized way of identifying the presence of air-borne asbestos in amounts generally recognized within the scientific community as toxic to humans, and that it is the cumulative exposure to asbestos that increases the risk of mesothelioma. The jury was presented with various internal Ford documents revealing that Ford recognized that friction products in Ford vehicles "[o]verexpos[ed]" mechanics to carcinogenic asbestos fibers and that Ford took steps to protect its own employees from exposure to dust from these products. Nevertheless, Ford disputed causation and presented expert testimony contesting the toxicity of the product contents to which Mr. Juni was exposed during his years as a mechanic, and

whether mechanics, like Mr. Juni, had an increased risk of developing mesothelioma based on the type of work performed and their work environment.

To succeed on its CPLR 4404 (a) motion, defendant had to establish that the jury's verdict was "utterly irrational" (Killon v Parrotta, 28 NY3d 101, 108 [2016], quoting Campbell v City of Elmira, 84 NY2d 505, 510 [1994]). "To conclude that a verdict is utterly irrational, requiring vacatur of the verdict, the Court must determine that `there is simply no valid line of reasoning and permissible inferences which could possibly lead [a] rational [person] to the conclusion reached by the jury on the basis of the evidence presented at trial'" (id., quoting Campbell v City of Elmira at 509).

For the reasons stated in then-Justice Feinman's well-reasoned and thorough dissent, defendant failed to meet its burden, as the evidence was sufficient to support the jury's verdict that Ford was a substantial cause of Mr. Juni's illness (Matter of New York City Asbestos Litig., 148 AD3d 233, 242-256 [1st Dept 2017] [Feinman, J., dissenting]). In light of the compelling evidence of Mr. Juni's exposure to asbestos while working on Ford vehicles and products, I find no basis to conclude that the verdict was utterly irrational. Essentially, [*1122] the jury was unpersuaded by Ford's experts. That decision should stand. I would reverse the Appellate Division order and remit to the trial court for consideration of those grounds raised by Ford and not addressed below.

Chief Judge DIFIORE and Judges STEIN, FAHEY and WILSON concur; Judge FAHEY in a concurring opinion and Judge WILSON in a separate concurring opinion; Judge RIVERA dissents in an opinion; Judges GARCIA and FEINMAN taking no part.

Order affirmed, with costs, and certified question answered in the affirmative, in a memorandum.

[*] Inasmuch as the parties make no arguments about Matter of New York City Asbestos Litig. (27 NY3d 765 [2016] [Dummitt]), we have no occasion to address whether, as the dissent concludes, the jury charge given in this case conflicts with our decision therein. [*] Plaintiff litigated to verdict prior to our decision in Dummitt v A.W. Chesterton (27 NY3d 765 [2016]), where we held that "the manufacturer of a product has a duty to warn of the danger arising from the known and reasonably foreseeable use of its product in combination with a third-party product which, as a matter of design, mechanics or economic necessity, is necessary to enable the manufacturer's product to function as intended" (id. at 793). Plaintiff had requested a jury charge in Supreme Court instructing the jury that defendant Ford could be liable for asbestos-containing replacement parts used in its vehicles even if Ford did not manufacture those products. Supreme Court rejected plaintiff's request, and "declined to instruct the jury on whether defendant failed to warn Juni of the danger of components used in its vehicles" (Matter of New York City Asbestos Litig., 48 Misc 3d 460, 462 [Sup Ct, NY County 2015, Jaffe, J.]). That decision conflicts with Dummitt.

Sources

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