Pomponi v. AO Smith Water Prods. Co. (2022)

Our plain-English summary of Pomponi v. AO Smith Water Prods. Co. (New York Supreme Court, Appellate Division, July 19, 2022).

Eileen Pomponi sued as executrix of the estate of her husband Italo Pomponi, an electrician who was diagnosed with lung cancer in 2014 and died in 2016. She alleged that his exposure to asbestos products, including Amtico vinyl floor tile and sheet flooring made by American Biltrite Inc., contributed to his cancer. He had testified that at various job sites he worked as close as five feet from flooring installers and inhaled the visible dust. American Biltrite moved for summary judgment, and the trial court denied it. The Appellate Division reversed and granted the motion. American Biltrite had submitted an industrial hygienist's report, based on a study of airborne fibers from cutting Amtico tiles. The report calculated a cumulative dose for the decedent that was indistinguishable from ambient levels and below occupational exposure levels. The plaintiff's medical expert cited simulation studies of tile cutting and sanding, but did not connect the fiber levels to the amount of asbestos needed to cause the decedent's lung cancer. The court therefore found no triable issue on specific causation and did not reach other issues.

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, 1st Dept.
• Decided: July 19, 2022
• Citation: 207 A.D.3d 417
• Stage: Appeal from summary judgment
• State: New York

Outcome. The Appellate Division reversed the trial court's order and granted American Biltrite Inc.'s motion for summary judgment, dismissing the plaintiff's complaint and cross claims against it.

What the court held. To show specific causation, a plaintiff must offer evidence tying the level of asbestos exposure to an amount known to cause the illness; evidence that a worker was in asbestos-laden dust, without a correlation between exposure levels and a harmful dose, is insufficient.

Issues decided: Causation, Expert Testimony.

The people and their exposure

• Italo Pomponi: lung cancer; died

The defendants

• American Biltrite Inc. (manufacturer)
• A.O. Smith Water Products Co.

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.

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.

207 A.D.3d 417 (2022)

172 N.Y.S.3d 680

2022 NY Slip Op 04612

Eileen Pomponi, as Executrix for the Estate of Italo Pomponi, Respondent,

v.

A.O. Smith Water Products Co. etal., Defendants, and

American Biltrite Inc., Appellant.

Index No. 190101/15. Appeal No. 14982. Case No. 2020-04690.

Decided July 19, 2022.

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

Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about November 2, 2020, which denied defendant American Biltrite Inc.'s motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Manning Gross + Massenburg, LLP, New York (Justin A. Reinhardt of counsel), for appellant.

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

Concur—Kern, J.P., Mazzarelli, Gesmer, González, Higgitt, JJ.

Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about November 2, 2020, which denied defendant American Biltrite Inc.'s motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Defendant American Biltrite, Inc. (ABI) is the manufacturer of Amtico vinyl floor tile and sheet vinyl flooring that contained asbestos. Plaintiff's decedent, Italo Pompani, was diagnosed with lung cancer in 2014, which led to his death in 2016. The complaint alleges that decedent's exposure to asbestos products, including Amtico floor tiles, contributed to the development of his lung cancer. At his deposition, decedent testified that, at various job sites during his career as an electrician, he worked as close as five feet from flooring installers installing Amtico asbestos-containing floor tiles and sheet vinyl flooring, which produced visible dust that he inhaled.

In asbestos exposure and other toxic tort cases, "an opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)" (Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]; accord Nemeth v Brenntag N. Am., 38 NY3d 336, 343 [2022]). As to specific causation, "there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are known to cause the [relevant] harm" (Sean R. v BMW of N. Am., LLC, 26 NY3d 801, 808-809 [2016] [internal quotation marks omitted]).

Nonetheless, "because there are times that `a plaintiff's exposure to a toxin will be difficult or impossible to quantify by pinpointing an exact numerical value,' `it 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'" (Nemeth, 38 NY3d 343, quoting Parker, 7 NY3d at 447-448).

[*418] Plaintiff asserts that defendant's Amtico tiles contained chrysotile asbestos which contributed to the development of decedent's ultimately fatal lung cancer. In its motion for summary judgment, defendant established prima facie a lack of specific causation. In particular, defendant submitted a report affirmed by industrial hygienist John W. Spencer of Environmental Profiles, Inc. (EPI). Spencer relied on a 2007 EPI study of airborne asbestos generated by cutting Amtico tiles. The study found an eight-hour weighted average airborne concentration level of less than .00044 fibers per cubic centimer (f/cc). Based on that finding, Spencer calculated that decedent's work near Amtico tile installations exposed him to

a cumulative dose of .0000086 f/cc, a level "indistinguishable from mot ambient measurements and below occupational exposure levels." This report establishes that decedent was not exposed to levels of asbestos from its products sufficient to contribute to his lung cancer.

Plaintiff's opposition failed to raise any issue of fact as to specific causation. A showing that the decedent "work[ed] in dust laden with asbestos generated from products containing asbestos" accompanied by "expert testimony that dust raised from manipulating asbestos products `necessarily' contains enough asbestos to cause mesothelioma" is not enough (Nemeth, 38 NY3d at 344 n 3). Plaintiff's medical expert did point to simulation studies measuring an average level of airborne asbestos as high as 0.27 f/cc during the cutting, sanding, and snapping of asbestos-containing floor tile. He did not, however, provide any correlation between the asbestos fiber levels to which plaintiff may have been exposed and the amount of inhaled asbestos that would have caused decedent's lung cancer (see Nemeth, 38 NY3d at 346-347; Dyer v Amchem Prods. Inc., 207 AD3d 408 [2022] [decided herewith]).

In light of our conclusion that plaintiff failed to raise a triable issue of fact as to specific causation, we need not reach any other issue.

Sources

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