| Lopez v Gem Gravure Co., Inc. |
| 2008 NY Slip Op 04063 [50 AD3d 1102] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Antonio Lopez, Respondent, v Gem Gravure Co., Inc., etal., Appellants, et al., Defendants. (And Third-Party Actions.) |
—[*1] Richard A. Fogel, P.C., Islip, N.Y., for appellant Matthews International Corp. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Richard E. Lerner ofcounsel), for appellant Willett Limited. Levy, Phillips & Konigsberg, LLP, New York, N.Y. (Philip Monier III of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Gem Gravure Co., Inc.,Matthews International Corp., and Willett Limited each separately appeal, as limited by theirbriefs, from so much of an order of the Supreme Court, Kings County (Schneier, J.), datedDecember 11, 2006, as, upon renewal, vacated its prior order dated June 30, 2006, granting thatbranch of their motion which was for summary judgment dismissing the complaint insofar asasserted against them, and thereupon denied that branch of the motion.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
Upon renewal, the Supreme Court properly denied that branch of the motion of thedefendants Gem Gravure Co., Inc., Matthews International Corp., and Willett Limited(hereinafter collectively the chemical defendants) which was for summary judgment dismissingthe complaint insofar as asserted against them. In opposition to the prima facie showing made bythe chemical [*2]defendants, the plaintiff adduced sufficientevidence to raise a triable issue of fact as to whether his exposure to chemicals contained inproducts manufactured and sold by the chemical defendants caused him to suffer from end-stagerenal failure (see Parker v Mobil OilCorp., 7 NY3d 434, 448 [2006]). In reply, the chemical defendants submitted expertaffidavits assailing the opinions of the plaintiff's experts, which merely raised issues ofcredibility that are for a jury to resolve (see Barbuto v Winthrop Univ. Hosp., 305 AD2d623, 624 [2003]; Stoves v City of New York, 293 AD2d 666, 667 [2002]; Halkias vOtolaryngology-Facial Plastic Surgery Assoc., 282 AD2d 650, 651 [2001]). In light of theconflicting expert opinions, upon renewal, the court properly denied the summary judgmentmotion (see Barbuto v Winthrop Univ. Hosp., 305 AD2d at 624; Zarzana vSheepshead Bay Obstetrics & Gynecology, 289 AD2d 570, 571 [2001]).
We note our disagreement with our dissenting colleague's conclusion that one of theplaintiff's experts, Dr. Jacqueline Moline, is unqualified to render an opinion because shespecializes in environmental and occupational medicine, rather than nephrology. An expert isqualified to render an opinion if he or she is "possessed of the requisite skill, training, education,knowledge or experience from which it can be assumed that the information imparted or theopinion is reliable" (Matott v Ward, 48 NY2d 455, 459 [1979]). As a board-certifiedphysician in internal medicine and occupational medicine, the vice-chair of the Department ofCommunity and Preventive Medicine and an Associate Professor in the Department ofCommunity and Preventive Medicine and Internal Medicine at the Mount Sinai School ofMedicine, and as a physician who has extensively lectured and published on occupationalmedicine, Dr. Moline is qualified to render an opinion in this case (see Miele v American Tobacco Co., 2AD3d 799, 802 [2003]; Matter of Enu v Sobol, 208 AD2d 1123, 1124 [1994]). Thechemical defendants' objections to Dr. Moline's qualifications do not preclude the admission ofher testimony, but only raise an issue of fact as to the weight to be accorded to it, which is for ajury to resolve (see Liriano v Hobart Corp., 92 NY2d 232, 241 [1998]; Miele vAmerican Tobacco Co., 2 AD3d at 802).
Further, the plaintiff's failure to warn cause of action, based on the chemical defendants'material safety data sheets for specific chemicals to which the plaintiff allegedly was exposed,was not preempted by the federal Occupational Safety and Health Administration standards orthe regulations promulgated thereunder (see Gade v National Solid Wastes ManagementAssn., 505 US 88, 107 [1992]; In re Welding Fume Prods. Liab. Litig., 364 F Supp2d 669, 697 [2005]; see also Darsan v Guncalito Corp., 153 AD2d 868, 870 [1989];accord Gross v Edmer Sanitary Supply Co., 154 AD2d 652, 654 [1989]). To the extentthat the chemical defendants otherwise contend that this cause of action should be dismissed,their argument raises an issue of the adequacy of the warnings, which is for a jury to resolve(see DaBenigno v Sunbeam Corp., 216 AD2d 248, 249 [1995]).
Finally, contrary to the chemical defendants' contention, the Supreme Court did not givecollateral estoppel effect to the decision and order of the Appellate Division, Third Department,dated July 13, 2006, in the plaintiff's worker's compensation proceeding against his employer, inwhich that Court determined that a question of fact existed as to causation (see Matter of Lopez v Superflex, Ltd.,31 AD3d 914 [2006]). Rather, the Supreme Court merely relied on that decision, whichconstituted new facts and which post-dated its June 30, 2006 order, to grant the plaintiff's motionfor leave to renew, which was not improper (see CPLR 2221 [e]; Peycke v Newport Media Acquisition II,Inc., 40 AD3d 722 [2007]). Santucci, Covello and McCarthy, JJ., concur.
Lifson, J.P. (dissenting and voting to reverse the order dated December 11, 2006, insofar asappealed from, and reinstate the order dated June 30, 2006, with the following memorandum):The plaintiff was an employee of Superflex Limited (hereinafter Superflex), which manufacturesflexible plastic hoses. He worked on production lines, where labeling was printed on the hoses.His job required him to load ink and place it into the printer, apply printing to the hoses, and thencoil and pack the hoses. He did not use gloves to perform his job. The inks applied and thecleaning solvents used by the plaintiff were manufactured by the defendants Gem Gravure Co.,Inc., Matthews International Corp., and Willett Limited (hereinafter collectively the chemicaldefendants).
The plaintiff brought the instant action against, among others, the chemical defendants,alleging that his exposure to various chemicals (including ketones) contained in the productsmanufactured by the chemical defendants to which he was exposed, caused him to suffer renalfailure or end-stage renal disease (hereinafter ESRD). The procedural context in which thisappeal comes before us is quite complex, involving the plaintiff's application to the Workers'Compensation Board, a reversal by the Appellate Division, Third Department, of the initialdenial of benefits for lack of sufficient evidence of causation (see Matter of Lopez v Superflex, Ltd., 31 AD3d 914 [2006]), and,upon renewal, the Supreme Court's vacatur of its original order granting the chemical defendants'motion for summary judgment dismissing the complaint insofar as asserted against them.
In the instant case, the chemical defendants, on their summary judgment motion, assertedthat the plaintiff's experts' opinions were scientifically unreliable because they failed to identify asingle study finding that occupational exposure to ketones over the relatively brief period of 21months that the plaintiff was exposed to the chemicals, which were inherent in the performanceof his job, can result in ESRD, failed to quantify the plaintiff's exposure, and failed to identifyany judicial opinion admitting similar testimony. The chemical defendants further argued thatthere was no toxicological evidence that ketones caused kidney failure in humans, and that theplaintiff failed to provide any specific quantitative exposure data. They contended that theplaintiff could not show the extent of his ketone exposure during his employment, and withoutsuch data, he could not sustain his burden of demonstrating, with any degree of scientificcertainty, that a harmful exposure occurred.
In his affidavit, an expert for the chemical defendants Dr. Sheldon H. Rabinovitz, anindustrial hygienist and toxicologist, stated that there were no toxicology studies showing thatketone exposure results in the type of kidney failure experienced by the plaintiff or any animal, orthat such kidney damage was characterized by shrunken kidneys. He also stated that the onlyeffects seen in the kidneys of animals exposed to ketones were associated with a globulin(protein) not present in humans. He opined that the plaintiff could not prove that he was exposedto any amount of ketones for a sufficient period of time which, according to scientific studies,result in adverse effects such as liver changes or nervous system damage. Therefore, according toRabinovitz, the plaintiff could not meet his burden of demonstrating causation of his injury fromhis exposure to ketones in the chemical defendants' products. Rabinovitz also asserted, in relationto the other defendants, that the plaintiff could not show that ESRD was caused by exposure toany off-gassing chemical from PVC extrusion.[*3]
The chemical defendants also submitted the affidavit ofanother expert Dr. David S. Goldfarb, a nephrologist, who reviewed the plaintiff's medicalrecords from the time when his renal failure was first diagnosed. Dr. Goldfarb found nodocumentation of any significant chemical exposure, and stated that no levels of any toxins inthe plaintiff's blood, urine, tissue, or other bodily secretions were measured or reported(emphasis added). According to this expert, the plaintiff presented a complete absence ofsymptoms attributable to toxicologic exposures. Based upon his physical examination of theplaintiff, Dr. Goldfarb stated that the plaintiff had no skin changes, deterioration of teeth,pulmonary findings, heart disease, or neurologic disorders, or any other findings consistent withoccupational exposure to harmful chemicals. Moreover, this expert asserted there was norecognizable medical authority which would sustain the theory that ESRD could be caused byexposure to chemicals. A probable alternative was presented, to wit, that the plaintiff sufferedfrom a chronic condition that evolved over a substantial period of time.
In opposition, the plaintiff's experts indicated that during the plaintiff's employment, theplaintiff was exposed to unsafe levels of cyclohexanone, isophorone, methyl isobutyl ketone, andother toxins manufactured by the chemical defendants. In his affidavit and report, Dr. JackCaravanos, an Industrial Hygienist, opined that given the frequency of such excessive, elevated,and lengthy exposure, it was "more likely than not that these workplace conditions producedelevated airborne levels and subsequently created elevated blood levels of chemicals" to whichthe plaintiff was exposed. No references to actual chemicals in the plaintiff's body were made,and no indication of medical literature concluding that such exposure, while otherwise potentiallyhazardous, would cause ESRD failure was set forth.
The plaintiff also submitted the affidavit and report of Dr. Jacqueline Moline, who practicesEnvironmental and Occupational Medicine. Dr. Moline stated that the medical literatureestablished that kidney injuries occur as a result of exposure to the toxins to which the plaintiffwas exposed. She also stated that she considered other causes of the plaintiff's kidney failure andfound that he did not have any of the recognized risk factors such as Hepatitis C or B, abnormalthyroid or collagen-vascular functioning, had no family history of kidney disease, and no historyof hypertension, diabetes, or drug use.
In reply, the chemical defendants submitted an Occupational Safety and HealthAdministration (hereinafter OSHA) air sampling report of the Superflex factory from March 14,2001, which indicated that butanone, hexone, antimony, beryllium, chromium, cobalt, copper,iron oxide, lead, manganese, molybdenum, nickel, vanadium, cadmium, cyclohexanone,isophorone, and vinyl chloride were all below the detection/reporting limits, and inferentiallycould not be causative of the plaintiff's alleged injuries. Moreover, the chemical defendantsasserted without contradiction that Dr. Caravanos assumed facts that were conjectural since theybore no relationship to the facts of this case. In particular, Dr. Caravanos' calculationscontradicted the OSHA findings as to what the levels of safe exposure were, and he ignored theactual exposure data presented from the plaintiff's workplace. In contrast, the opinion of theirexpert Dr. Rabinovitz was based on information derived from actual data gathered at the site.
The chemical defendants asserted that Dr. Moline was not a qualified expert, as she is not anephrologist and her opinions generally would not be accepted within the medical community ofnephrology. Additionally, they contended that Dr. Moline's opinion was scientifically unreliablesince she failed to identify a single study finding that occupational exposure to ketones over thecourse of 21 months can result in renal failure. She failed to account for the small size of the[*4]plaintiff's kidneys, the fact that 21 months was too short atime of exposure to cause ESRD, the absence in any cited literature conclusively linking ESRDwith occupational exposure to chemicals, the lack of diagnostic data such as a kidney biopsysuggesting that the plaintiff's ESRD resulted from occupational exposure, and the fact that thehigher rate of kidney failure among Hispanics was attributable to other causes. The chemicaldefendants' expert, Dr. Goldfarb, stated that chemical exposure that would have an adverse effecton the kidneys would also affect other organs, causing symptoms such as liver disease, skinchanges, teeth deterioration, pulmonary findings, heart disease, or neurologic disorders. Theplaintiff did not have any of these other marker symptoms.
Moreover, the chemical defendants argued that Dr. Moline's causation theory was speculativeand unsupported by the references she cited. The chemical defendants' expert Dr. Rabinovitzstated that the animal studies cited by Dr. Moline showed that ketones did not cause kidneydamage when the animals were not exposed to a second chemical. The patient reports cited byDr. Moline involved kidney damage and not ESRD; one only mentioned ketones in passing,while the other made no mention of ketones. The epidemiological studies also did not supportDr. Moline's conclusion since one did not identify the chemicals studied and the other did notinvolve kidney disease or ESRD. The other reports referred to by Dr. Moline did not identify theketones involved, or mention that the exposure caused kidney damage. Lastly, the chemicaldefendants allege that Dr. Moline also failed to quantify the plaintiff's alleged exposure toketones.
Based on that record, the Supreme Court determined, and the majority herein concludes, thatissues of fact are present.
For the reasons set forth below, I believe the order of the Supreme Court should be reversedinsofar as appealed from, and the order dated June 30, 2006, granting that branch of the chemicaldefendants' motion which was for summary judgment dismissing the complaint insofar asasserted against them should be reinstated. In order to prevail in a toxic tort case, the burden is onthe plaintiff to establish causation through an expert's testimony that exposure to the toxicmaterial is generally recognized in the scientific community as capable of causing the particularillness, and that the plaintiff was exposed to sufficient levels of the toxic material to cause theillness (see Parker v Mobil Oil Corp.,7 NY3d 434, 448 [2006]). Therefore, in the context of the inevitable motion forsummary judgment to dismiss the complaint, the burdens of proof are virtually reversed. Thedefendant is required to prove the negative, to wit, that the plaintiff's injuries, whatever they maybe, could not have been caused by the toxic material in question (see Cinquemani v Old Slip Assoc., LP,43 AD3d 1096, 1097-1098 [2007]). To defeat such a motion, the plaintiff's burden isvery slight. The plaintiff need only show that an issue of fact exists as to whether the toxicmaterial in question might be a cause of the plaintiff's injuries (see Miceli v Purex Corp.,84 AD2d 562 [1981]). However, as on any motion for summary judgment, unsubstantiatedspeculation will not suffice (see Romano v Stanley, 90 NY2d 444, 451-452 [1997]; Edelson v Placeway Constr. Corp., 33AD3d 844, 845 [2006]; Kracker v Spartan Chem. Co., 183 AD2d 810, 811-812[1992]). Therefore, the plaintiff must establish through an expert that the injuries in questioncould be attributable to the exposure to the toxic material, leaving to the trier of fact the ultimatedetermination whether there was exposure which did, in fact, cause the plaintiff's injuries (seeClarke v Helene Curtis, Inc., 293 AD2d 701, 701-702 [2002]).
If a defendant is able to establish that the expert upon whom the plaintiff intends to rely isnot properly credentialed or that the theories offered have not received general acceptance in thescientific community, the plaintiff's expert's testimony is rendered a nullity and the claim may bedeemed incapable of proof (seeHeckstall v Pincus, 19 AD3d 203, 204-205 [2005]).[*5]
In the present case, the chemical defendants established,prima facie, their entitlement to judgment as a matter of law by demonstrating that the plaintiff'sinjuries could not have been caused by the toxic materials in question, and further establishedthat the theory of causation asserted by the plaintiff's experts is legally unacceptable. Specifically,the defendants satisfactorily established, through their experts, that the plaintiff's injuries areattributable to circumstances other than his exposure to the toxic material in question. Thedefendants' experts identified the following irrefutable facts: (1) that one suffering from toxicexposure would be expected to have chemical tracers of some of the toxic material in his or herbodily fluids, and there was no indication of such findings in this plaintiff's medical records, (2)to the extent that the plaintiff may assert that undetected or undetectable toxic elements mighthave caused his injuries, there is no general acceptance in the scientific community of the theorypropounded by the plaintiff's expert that any of the chemicals in question, but especially theketones, cause ESRD in humans, (3) the plaintiff's experts are unable to cite any credible studiesthat demonstrate the causal relationship between the toxic materials and ESRD in humans, (4)the plaintiff is also unable to identify any credible animal studies that would lead one to concludethat the plaintiff's exposure could result in the injuries in question since the effect on the kidneysfound in animals was limited to a protein which is not known in humans, (5) the plaintiff's expertDr. Moline was not credentialed to offer opinions on nephrology, and (6) ESRD evolves over aperiod of time far greater than that in which plaintiff was alleged to have worked with the allegedtoxic materials.
The plaintiff's response to this proof was simply insufficient to raise an issue of fact. Theplaintiff's proof did not refute the necessity of the presence of chemical markers in toxic tortinjuries or adequately address such markers herein. Similarly, the plaintiff offered no clinicalevidence demonstrating that renal failure in humans was caused by exposure to ketones or anyother of the alleged toxic materials (components in the ink or cleaning solvents) inquestion—a standard far below what the plaintiff must establish, to wit, that the exposureto the inks or cleaning solvents manufactured by the chemical defendants was generally acceptedin the scientific and medical communities as a potential cause of the plaintiff's injury (see Parker v Mobil Oil Corp., 7 NY3d434 [2006]). Moreover, the plaintiff's expert Dr. Moline was not sufficiently credentialed inthe field of nephrology, and consequently she was not able to address, much less contradict, theopinion of the chemical defendants' expert concerning factors leading to ESRD, its inability tospontaneously develop over a 21-month period, or its prevalence within the plaintiff'sdemographic profile. Moreover, Dr. Moline's opinions are rife with conjecture and surmise andwere based on Dr. Caravanos's calculations as to the level of exposure, which themselves weremade without the benefit of a personal inspection of the chemical work site, and which createdassumptions that were proved to be not remotely accurate by the chemical defendants' expert,who based his calculations on his personal inspection of the work site. Even if Dr. Moline'sopinion were given some credence—to the extent that there might be some authority tosupport her opinion—in view of the chemical defendants' experts' reply affidavits, whichclearly demonstrated that such theories are not generally accepted in the scientific and medicalcommunities, such theories should, in this instance, be rejected.
For all of the foregoing reasons, I conclude that the order of the Supreme Court, uponrenewal, denying that branch of the chemical defendants' motion which was for summaryjudgment dismissing the complaint insofar as asserted against them, should be reversed insofar asappealed from, and the order dated June 30, 2006 should be reinstated.