| Todman v Yoshida |
| 2009 NY Slip Op 05257 [63 AD3d 606] |
| June 25, 2009 |
| Appellate Division, First Department |
| Ulric Todman, Appellant, v Akiko Yoshida, Defendant,and Wesley Brown et al., Respondents. |
—[*1] Russo, Keane & Toner, LLP, New York (Thomas F. Keane of counsel), forrespondents.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered April 24, 2008,which granted the motion of defendants Brown and Cook-Brown to preclude plaintiff's expertfrom testifying at trial and for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
The court correctly precluded the testimony of plaintiff's expert toxicologist. The foundationfor the expert's opinion that plaintiff's alleged health condition was caused by toxic chemicalscontained in the wood-stripping agents used by defendant Yoshida in an apartment in thebuilding owned by Brown and Cook-Brown lacked the "specific causation" component, i.e., thatplaintiff was exposed to levels of the toxins sufficient to cause the condition (see Parker vMobil Oil Corp., 7 NY3d 434, 448 [2006]). While "not required to pinpoint exposure withcomplete precision," the expert failed even to offer a "scientific expression" of plaintiff'sexposure (id. at 449).
He neither provided a measurement of plaintiff's exposure nor employed any of the availablemethods for reasonably estimating it, such as mathematical modeling or comparing plaintiff'sexposure level to those of study subjects whose exposure levels were precisely determined.Absent was any statement that the chemicals in question are capable of causing injury at even thelowest exposure level.
In his affidavit submitted in opposition to defendants' motion, the expert also failed toprovide any measurement or estimate of plaintiff's exposure to the subject toxins. While heopined, based on the manner in which Yoshida used the wood-stripping agents, that Yoshida'sexposure to the toxins contained in those agents exceeded the limits set by the OccupationalSafety and Health Administration (OSHA), "standards promulgated by regulatory agencies asprotective measures are inadequate to demonstrate legal causation" (id. at 450).Furthermore, he failed to state any relationship between Yoshida's exposure and that of plaintiff,who occupied a different apartment.
Thus, based upon defendant's showing that the testimony of plaintiff's expert toxicologist[*2]should be precluded, the complaint was correctly dismissedon the ground that plaintiff lacked the requisite causation evidence. Concur—Tom, J.P.,Saxe, Sweeny, Acosta and Abdus-Salaam, JJ.