Pistone v. American Biltrite, Inc. (2021)

Our plain-English summary of Pistone v. American Biltrite, Inc. (New York Supreme Court, Appellate Division, May 26, 2021).

Victoria Pistone and her husband, who sued derivatively, brought this action against American Biltrite, Inc. and Mannington Mills, Inc. They alleged that asbestos in the companies' flooring products caused her peritoneal mesothelioma. From about 1973 to 1981 her father cut and installed floor products, including Mannington vinyl sheet flooring and American Biltrite's "Amtico" tiles. As a child she went with him to work sites, helped cut the products and swept up the dust. She was also exposed to dust when she greeted him after work. The trial court granted both companies summary judgment for lack of causation. The Appellate Division, Second Department, reversed. The companies' experts said that chrysotile asbestos, especially in their products, cannot cause peritoneal mesothelioma and that her exposure was below a safe threshold. The plaintiffs' experts, however, raised factual questions on general and specific causation, supported by studies and medical literature. The court called the conflict a credibility battle for a jury, and denied the motions.

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, Appellate Division, 2nd Dept.
• Decided: May 26, 2021
• Citation: 194 A.D.3d 1085
• Stage: Appeal from summary judgment
• State: New York

Outcome. The Appellate Division reversed the order granting summary judgment to American Biltrite, Inc. and Mannington Mills, Inc., and denied their motions, so the plaintiffs' claims against them continue.

What the court held. In toxic tort cases an expert opinion must show exposure, general causation and specific causation, and conflicting expert opinions on these points raise a credibility question for the jury rather than permitting summary judgment.

Issues decided: Causation, Expert Testimony, Take-Home Exposure.

The people and their exposure

• Victoria Pistone (family member): peritoneal mesothelioma

The defendants

• American Biltrite, Inc. (manufacturer)
• Mannington Mills, Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Penn v. Amchem Products (New York Supreme Court, Appellate Division, 1st Dept., 2011). The Appellate Division held that the trial court was wrong and that the evidence was enough for the jury to find Kerr Corporation liable to plaintiff Penn. It rejected Kerr's unpreserved challenges, noted the damage awards deviate from reasonable compensation under CPLR 5501(c), and recalled and vacated its May 2010 decision.

Later decisions citing this one

One later decision in our library cites this one:

• Faivor v. Amchem Prods., Inc. (New York Supreme Court, 2021). The court denied summary judgment to DAP (without prejudice to renewal on proper papers), Hennessy Industries and American Biltrite, so the plaintiffs' claims against all three go forward.

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.

194 A.D.3d 1085 (2021)

149 N.Y.S.3d 204

2021 NY Slip Op 03341

Victoria Pistone et al., Appellants,

v.

American Biltrite, Inc., etal., Respondents, etal., Defendants. (And Third-Party Actions.)

2018-06602. Index No. 607637/15.

Decided May 26, 2021.

Appellate Division of the Supreme Court of New York, Second Department.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (George R. Peck, J.), entered April 19, 2018. The order, insofar as appealed from, granted those branches of the separate motions of the defendants American Biltrite, Inc., and Mannington Mills, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them.

Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY (Brian J. Isaac, Kyle A. Shamberg, and Mark Bibro of counsel), for appellants.

Manning Gross + Massenburg LLP, New York, NY (Robert C. Creighton, John J. Kurowski, David J. Fisher, and Justin Reinhardt of counsel), for respondent American Biltrite, Inc.

Hawkins Parnell & Young, LLP, New York, NY (Erich J. Gleber of counsel), for respondent Mannington Mills, Inc. Dillon, J.P., Hinds-Radix, Duffy and Iannacci, JJ., concur.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the separate motions of the defendants American Biltrite, Inc., and Mannington Mills, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them are denied.

The plaintiff Victoria Pistone (hereinafter the plaintiff), and her husband suing derivatively, commenced this action against, among others, the defendants American Biltrite, Inc., and Mannington Mills, Inc. (hereinafter together the defendants), alleging that exposure to asbestos in the defendants' flooring products caused her to contract peritoneal mesothelioma. From approximately 1973 to 1981, the plaintiff's father worked cutting and installing floor products, including vinyl sheet flooring manufactured by Mannington Mills, Inc., and "Amtico" floor tiles manufactured by American Biltrite, Inc. As a child, the plaintiff accompanied her father to work sites where she helped him cut the products and swept up the resulting dust. The plaintiff was also exposed to this dust when she greeted her father after he returned home from work. The defendants separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them, based on a lack of causation. In an order entered April 19, 2018, the Supreme Court, among other things, granted those branches of the defendants' motions. The plaintiffs appeal.

"In toxic tort cases, an expert opinion on causation must set forth (1) a plaintiff's exposure to a toxin, (2) that the toxin is capable of causing the particular injuries plaintiff suffered (general causation) and (3) that the plaintiff was exposed to [*1086] sufficient levels of the toxin to cause such injuries (specific causation)" (Sean R. v BMW of N. Am., LLC, 26 NY3d 801, 809 [2016]; see Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762, 784 [2014]; Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]). "[T]here must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of the agent that are known to cause the kind of harm that the plaintiff claims to have suffered" (Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d at 784 [internal quotation marks omitted]). "[I]t is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community" (Parker v Mobil Oil Corp., 7 NY3d at 448; see Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d at 784).

Here, the defendants each established their prima facie entitlement to judgment as a matter of law through the affidavits of their experts, who opined that chrysotile asbestos, and particularly the chrysotile asbestos found in their flooring products, is not capable of causing peritoneal mesothelioma, and that the plaintiff's maximum asbestos exposure from work around their products was below a safe threshold. However, in opposition, the plaintiffs submitted expert affidavits raising triable issues of fact as to both general and specific causation (see Dominick v Charles Millar & Son Co., 149 AD3d 1554, 1555-1556 [2017]; Penn v Amchem Prods., 85 AD3d 475, 476 [2011]). The conclusions of the plaintiffs' experts were sufficiently supported by studies and medical literature, and demonstrated specific causation through a scientific method (see Parker v Mobil Oil Corp., 7 NY3d at 449). The experts' conflicting interpretations of the underlying studies and literature presented a credibility battle between the parties' experts, which is properly left to a jury for its resolution (see Mehtvin v Ravi, 180 AD3d 661, 664 [2020]; Espinal v Jamaica Hosp. Med. Ctr., 71 AD3d 723, 724 [2010]).

Accordingly, the Supreme Court should have denied those branches of the defendants' separate motions which were for summary judgment dismissing the complaint insofar as asserted against each of them.

Sources

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