| B.T.N. v Auburn Enlarged City School Dist. |
| 2007 NY Slip Op 08561 [45 AD3d 1339] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| B.T.N., an Infant, by His Mother and Natural Guardian, Deborah L.Netti, et al., Respondents, v Auburn Enlarged City School District,Appellant. |
—[*1] Woods Oviatt Gilman LLP, Rochester (Julie S. Jordan of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Cayuga County (Peter E. Corning, A.J.), enteredSeptember 21, 2006 in a personal injury action. The order, insofar as appealed from, denieddefendant's motion for summary judgment dismissing the complaint or, in the alternative, topreclude the testimony of plaintiffs' expert witness.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Defendant appeals from an order that, inter alia, denied its motion forsummary judgment dismissing the complaint in this toxic tort action. In support of its motion,defendant contended plaintiffs cannot meet the Frye test inasmuch as they cannotestablish, based on generally accepted scientific principles, that their exposure to alleged harmfulairborne substances while they were students at defendant's school building caused the symptomsfor which they seek damages (see Frye v United States, 293 F 1013, 1014 [1923]). Wereject that contention. Although defendant met its initial burden by submitting an expert'saffidavit establishing that there was no scientifically-based causal relationship between plaintiffs'exposure and symptoms, plaintiffs raised a triable issue of fact. The record contains sufficientepidemiological evidence to support a finding of general causation, i.e., that the atypical moldsfound to be present in the school building can cause plaintiffs' symptoms (see generally Parker v Mobil Oil Corp.,7 NY3d 434, 448 [2006], rearg denied 8 NY3d 828 [2007]). In addition, the affidavitof plaintiffs' expert is sufficient to support a finding of causation. There is no requirement that anexpert precisely quantify exposure levels or establish a dose-response relationship. Rather, anexpert may use a methodology generally accepted in the scientific community in concluding thatthe particular exposure caused the plaintiffs' symptoms (see id.; Jackson v Nutmeg Tech., Inc., 43AD3d 599, 601 [2007]). Here, plaintiffs' expert determined specific causation by the use ofthe [*2]scientifically-accepted methodology of differentialdiagnosis (cf. Marso v Novak, 42AD3d 377, 378 [2007]; see generally Terry v Ottawa County Bd. of Mental Retardation& Dev. Delay, 165 Ohio App 3d 638, 656-658, 847 NE2d 1246, 1259-1261 [2006], revdin part on other grounds sub nom. Terry v Caputo, 115 Ohio St 3d 351, 875 NE2d 72 [2007];Alder v Bayer Corp., AGFA Div., 61 P3d 1068, 1084 [Utah 2002]). We have reviewedthe remaining contention of defendant with respect to Supreme Court's denial of that part of itsmotion seeking, in the alternative, to preclude plaintiffs from presenting medical evidence attrial, and we conclude that there is no basis in the record for granting such relief.Present—Hurlbutt, J.P., Martoche, Smith, Centra and Fahey, JJ.