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New York Civil Litigation Review

First Department Finds That Quantification of Environmental Contaminants Necessary for Plaintiff To Survive Summary Judgment:

Posted in Toxic Torts

In Cleghorne, et. al. v. The City of New York, et. al., 2012 NY Slip Op. 06648 (1st Dept., October 4, 2012), the Appellate Division, First Department, dismissed Plaintiffs’ claims, granting summary judgment to the Board of Education of the City of New York (Board of Ed.), because Plaintiffs’ expert failed to quantify Plaintiffs’ exposure to allergens, which allegedly caused her asthma and because Plaintiffs’ expert failed to specify what level of exposure in general would cause the disease.

Cleghorne sued various entities, including the Board of Ed., alleging that the conditions in her classroom at the New School for Arts and Sciences caused her to develop asthma.  Specifically, Cleghorne said that she spent several hours per day during the week before the school opened cleaning up dust, dirt, rodent droppings and carcasses, cobwebs, dead insects, mildew, and mold.  She further stated that after classes began, she cleaned her classroom twice daily.

Defendants moved for summary judgment.  Their expert pulmonologist, Dr. Jack Adler, concluded that based on prior medical records, Cleghorne developed asthma prior to moving to the new classroom and that environmental contaminants at the school did not cause the condition.  Importantly, none of the allergens identified by Cleghorne were exclusive to the New School.  Because those environmental contaminants are prevalent, Cleghorne would have likely had similar symptoms in any other urban environment and was simply experiencing asthmatic symptoms triggered by common allergens.

Plaintiffs opposed and cross-moved for summary judgment.  In opposition, Plaintiff’s expert, Dr. Hugh Cassiere opined that Cleghorne did not have asthma prior to moving into her new classroom, but rather suffered from asymptomatic airway hyper-responsiveness.  Based on Cleghorne’s account of her exposures, memorialized in a signed affidavit 9 years after the events in question, Cassiere concluded that her asthma was caused by “high-level exposure to, and daily inhalation of dust, dirt, rodents, rodent dander, mold, mildew, cockroaches, and bug carcasses.”

In reply, Defendants asked the motion court to exclude Dr. Cassiere’s report on the basis that his opinion on causation and the methodology used to form that opinion was not generally accepted in the medical community or, alternatively to conduct a Frye hearing.  In a supporting affidavit, Dr. Adler asserted that Dr. Cassiere’s methodology was not generally accepted and that Cleghorne had not shown what levels of allergens or toxins she was exposed to, much less that the alleged level of exposure was sufficient to cause asthma.

The motion part denied both motions, finding that summary judgment was inappropriate as there were issues of fact outstanding.

The First Department unanimously reversed and found that Cleghorne was obliged to show specific causation, under the landmark  Court of Appeals decision, Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006).  The First Department held:

“Plaintiff must at least raise a triable issue of fact as to her exposure to a specific toxin or allergen; quantify the level of exposure to some degree; and posit that such level of exposure was sufficient to produce the alleged injuries.”  Id. at 448-449.

The First Department was cautious in adhering to the Court of Appeals’ Parker ruling, stating:  “While Parker recognizes that the level of exposure need not always be quantified “precisely,” it is still necessary that “whatever methods an expert uses to establish causation [they be] generally accepted in the [medical] community.”  Such methods include “mathematical modeling or comparing plaintiff’s exposure level to those of study subjects whose exposure levels were precisely determined.”

The Court noted that the only method plaintiffs’ expert used to establish specific causation was to accept, at face value, the anecdotal allegations of Plaintiff’s affidavit, signed nine years after the events in question.  Further, Dr. Cassiere characterized Cleghorne’s exposure as “high level” – a “meaningless and vague quantifying adjective.” Cassiere also failed to provide any evidence or methodology to measure the level of toxins present in the school or posit the level of exposure necessary for the causation of the injury.  Although Dr. Cassiere cited six studies in support of his theory of causation, he neglected to compare plaintiff’s exposure to any of those studies.  Taken together, plaintiff failed to sufficiently quantify her exposures and show specific causation and failed to establish the threshold level of exposure, in general, which would cause the disease.

The Cleghorne decision should embolden defendants to aggressively pursue motions to preclude plaintiff’s expert testimony and to request the Courts to hold Frye hearings, particularly in the field of toxic torts.