Sason v. Dykes Lumber Co., Inc. (2023)

Our plain-English summary of Sason v. Dykes Lumber Co., Inc. (New York Supreme Court, Appellate Division, November 16, 2023).

Raphael Sason sued Dykes Lumber Company and other defendants over the death of his brother, Uziel Sason, from mesothelioma. Raphael testified that from about 1967 to 1980 the brothers ran a woodworking shop. They often used a putty called Durham Rock Hard, which they got from Dykes Lumber and other suppliers. Plaintiff alleged the putty contained asbestos and contributed to the disease. Dykes Lumber moved for summary judgment, and the trial court denied it. On appeal the question was whether plaintiff had enough proof that the exposure was high enough to cause the disease. Dykes Lumber's industrial hygienist said Uziel's lifetime exposure, about 0.7 fiber-years from all sources, was within the range from ordinary ambient air. Plaintiff's medical expert and industrial hygienist said the exposure exceeded levels known to cause mesothelioma. They relied on simulation studies of mixing and sanding joint compound and putty. The court held these studies met the Court of Appeals' requirements, and that the competing experts created a fact issue. It affirmed the denial.

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: November 16, 2023
• Citation: 221 A.D.3d 491
• Stage: Appeal from summary judgment
• State: New York

Outcome. The Appellate Division affirmed the denial of Dykes Lumber Company's summary judgment motion, so plaintiff Raphael Sason's claims against Dykes Lumber continue.

What the court held. To establish specific causation, a plaintiff must give a scientific expression linking actual asbestos exposure to a level known to cause mesothelioma. Competing expert evidence on that point raises a fact issue that defeats summary judgment.

Issues decided: Causation, Expert Testimony, Product Identification.

The people and their exposure

• Uziel Sason: mesothelioma; died

The defendants

• Dykes Lumber Company, Inc. (supplier)

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.

Later decisions citing this one

13 later decisions in our library cite this one:

• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2025). The First Department affirmed the jury-verdict judgment for plaintiffs Romeo and Rosa Maffei against Burnham LLC, including compensatory, consortium and punitive awards, and dismissed the appeal from the post-trial order as subsumed in the judgment.
• McWilliams v. Jenkins Bros. (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2024). The First Department affirmed the denial of Jenkins Bros.' motion for JNOV, a new trial, or remittitur, leaving plaintiff McWilliams' $13,000,000 past and $10,000,000 future pain and suffering verdict intact.
• Caligiuri v. AO Smith Corp. (New York Supreme Court, 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.
• Caligiuri v. AO Smith Corp. (New York Supreme Court, 2024). 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.
• Caligiuri v. AO Smith Corp. (New York Supreme Court, 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.
• Pefanis v. AO Smith Water Prods. Co. (New York Supreme Court, 2024). The court denied defendant DAP, Inc.'s motion for summary judgment in its entirety, so the plaintiff executrix's claim against DAP continues.
• Pefanis v. AO Smith Water Prods. Co. (New York Supreme Court, 2024). The court denied the summary judgment motions of Donald Durham Company and Vanderbilt Minerals, LLC in full, so the estate's claims, including the punitive damages claim against Vanderbilt, go forward.
• Pira v. Air & Liquid Sys. Corp. (New York Supreme Court, 2024). The court denied defendant Steel Grip, Inc.'s motion for summary judgment in its entirety, so the estate's claims against Steel Grip continue.
• Savianeso v. Aerco Intl., Inc. (New York Supreme Court, 2024). The trial court granted defendant QCP (Bakers Pride)'s motion for summary judgment and dismissed the complaint against it, ruling against plaintiff June Savianeso; the action continued against the other defendants.
• Stiglitz v. AO Smith Water Prods. Co. (New York Supreme Court, 2024). The trial court denied general contractor Morse Diesel's motion for summary judgment in its entirety, so the plaintiff's claims against it go forward.
• Tippin v. 3M Co. (New York Supreme Court, 2024). The court granted American International Industries partial summary judgment dismissing plaintiff Corey Tippin's punitive damages claim against it and denied the rest of its motion, leaving causation for trial.
• Wagner v. Aerco Intl., Inc. (New York Supreme Court, 2024). The court denied defendant American Biltrite's motion for summary judgment, so plaintiff Michael Wagner's claims over his mesothelioma proceed to trial.
• Bassier v. AO Smith Water Prods. Co. (New York Supreme Court, 2023). The trial court denied defendant Burnham, LLC's motion for summary judgment, so plaintiff Bassier's claims against Burnham remain pending.

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.

221 A.D.3d 491 (2023)

199 N.Y.S.3d 56

2023 NY Slip Op 05796

Raphael Sason, Respondent,

v.

Dykes Lumber Company, Inc., Appellant, etal., Defendants.

Index No. 190257/17. Appeal No. 1033. Case No. 2023-03840.

Decided November 16, 2023.

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

Appeal from the Supreme Court, New York County (Adam Silvera, J.), entered on or about July 24, 2023.

Clyde & Co US LLP, New York (Kevin C. McCaffrey of counsel), for appellant.

Weitz & Luxenberg, P.C., New York (Pierre A. Ratzki of counsel), for respondent.

Concur—Renwick, P.J., Kern, Gesmer, Shulman, O'Neill Levy, JJ.

[*493] Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about July 24, 2023, which denied defendant Dykes Lumber Company, Inc.'s motion for summary judgment dismissing the complaint and any cross-claims as against it, unanimously affirmed, without costs.

Plaintiff Raphael Sason testified that he and his brother, decedent Uziel Sason, operated a woodworking shop from approximately 1967 to 1980, and frequently used a product called Durham Rock Hard putty that they obtained from defendant and other defendant suppliers. Plaintiff alleges that the product contained asbestos and contributed to decedent's development of mesothelioma.

Defendant's motion for summary judgment was properly [*492] denied. "`[I]t is well-established that 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)'" (Nemeth v Brenntag N. Am., 38 NY3d 336, 342-343 [2022], quoting Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]). The Court of Appeals has recently held that, to establish specific causation, a plaintiff must "provide a[] scientific expression linking ... actual exposure to asbestos to a level known to cause mesothelioma" (Nemeth at 346). Instead of "[s]imply quantifying the magnitudes of asbestos fibers released into the environment," the scientific expression must be "specifically designed to capture asbestos fibers created by the simulated activity in the breathable zones of the participating worker and helper" (Dyer v Amchem Prods. Inc., 207 AD3d 408, 412 [1st Dept 2022]).

Here, defendant established, prima facie, the absence of specific causation by submitting an affidavit from its industrial hygienist Neva Jacobs, who calculated decedent's cumulative dose of asbestos and opined that decedent's lifetime cumulative exposure of approximately 0.7 fiber years from all sources was within the range of lifetime cumulative exposures to asbestos from breathing ambient air. However, in opposition, plaintiff raised an issue of fact by submitting affidavits from medical expert Dr. Mark Ginsburg and industrial hygienist Kenneth Garza. Dr. Ginsburg opined that decedent's approximate exposure range exceeded the known causative levels for mesothelioma. In reaching his opinion, Dr. Ginsburg relied on Garza's report, which cited simulation studies that demonstrated that decedent's work mixing and sanding joint compound and putty would have released toxic concentrations of asbestos fibers into his breathing zone. These studies satisfy the scientific expression requirements articulated by the Court of Appeals in Nemeth (see Dyer at 412).

Accordingly, Supreme Court correctly denied defendant's summary judgment motion, as the parties' competing causation evidence constituted the classic "battle of the experts" (Shillingford v New York City Tr. Auth., 147 AD3d 465, 465 [1st Dept 2017]; see also Scholastic Inc. v Pace Plumbing Corp., 129 AD3d 75, 87 [1st Dept 2015]; Boston v Weissbart, 62 AD3d 517, 518 [1st Dept 2009]).

Sources

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