| Kendall v Amica Mut. Ins. Co. |
| 2016 NY Slip Op 00409 [135 AD3d 1202] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| Richard K. Kendall et al., Appellants, v Amica MutualInsurance Company, Respondent. (Action No. 1.) Holly Kendall et al.,Appellants, v USA Decon et al., Respondents. (Action No. 2.) |
Linnan & Fallon, LLP, Albany (Michael J. Hutter of Powers & Santola,LLP, of counsel), for appellants.
Carter, Conboy, Case, Blackmore, Maloney & Laird, PC, Albany (Jessica A.Desany of counsel), for Amica Insurance Company, respondent.
A. Smith Law Group, LLP, New York City (Andrea J. Smith of counsel), for USADecon and another, respondents.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Albany (Benjamin F. Neidlof counsel), for Duct and Vent Cleaning of America, Inc., respondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Teresi, J.), entered June 19,2014 in Albany County, which, among other things, granted defendants' motions forsummary judgment [*2]dismissing the complaint(s).
Plaintiffs own a three-level home in the Town of Colonie, Albany County; plaintiffspreviously utilized the main and second floors of the structure as their residence andrented out the basement level to a young man and his fiancée. On the morning ofApril 5, 2009, the Colonie Police Department was told that the male tenant hadbarricaded himself in the basement apartment and allegedly was threatening suicide, anda patrol officer was dispatched to undertake a welfare check. Later that afternoon, andfollowing unsuccessful attempts to voluntarily extricate the tenant from the apartment, aSWAT team fired CS tear gas canisters into plaintiffs' home. The tenant then wasremoved from the scene and transported to a local hospital.
Plaintiffs, who initially were not at home and thereafter watched the events unfoldfrom a neighbor's property, returned to their home at approximately 9:00 p.m. Whenplaintiff Holly Kendall (hereinafter Kendall) went down to the basement to reset thecable box,[FN1] shebegan coughing and her eyes and skin started to burn. Although Kendall soughttreatment at a local hospital, she left without being seen by a physician or otherwisereceiving treatment. Kendall and her husband, plaintiff Richard K. Kendall, returned totheir home later that evening and remained there until the following day. After stayingwith relatives for two days, plaintiffs moved into a local hotel, where they remained forthe next 6
As a result of the April 2009 incident, plaintiffs filed a claim with their homeowner'sinsurance carrier, defendant Amica Mutual Insurance Company; Amica, in turn, retainedAEGIS Engineering Services to investigate plaintiffs' claim. Although AEGIS solicitedbids from a number of remediation contractors, plaintiffs—independent of suchefforts—identified and selected defendant USA Decon to perform the tear gasremediation. During the course of such work, which began on or about June 1, 2009 andlasted for approximately nine days, USA Decon employed various methods to cleanplaintiffs' property, including utilizing a neutralizing agent known as "Get the Odor Out."As USA Decon was not licensed to perform heating, ventilation and cooling work, itsubcontracted such work to defendant Duct and Vent Cleaning of America, Inc. Duringthe course of its work on plaintiffs' property, Duct and Vent utilized a deodorizing agentknown as "EnviroCon." The remediation work was completed in June 2009 and, whenKendall did a walk-through of the premises, she did not experience any symptoms.Post-remediation air quality testing conducted by the Occupational &Environmental Health Center of Eastern New York in June 2009 revealed "that thecleanup was thorough and the air in the residence [was] no longer contaminated by theeffects of the CS tear gas and powder. No further sampling for CS tear gas [was]recommended."
Plaintiffs returned to their home in October 2009. Although Kendall purportedlybegan experiencing adverse health effects one month later, plaintiffs continued to live intheir home until March 5, 2010, when Kendall allegedly was told by a physician at alocal emergency room that she could not return to her residence. Plaintiffs again movedinto a local hotel, and neither Kendall nor her spouse thereafter returned to the residence.Subsequent testing of plaintiffs' home for tear gas residue—conducted byNeedham Risk Management in March 2010—revealed that "[t]he analyte wasdetected but at a level too low to be accurately quantified by the method used." Plaintiffs,believing such testing to be invalid, hired Certified Decontamination in November 2010to conduct further testing of the residence for the presence of tear gas residue [*3]and any chemicals used during the decontaminationprocess. Although the general manager of that company, Michael Rowzee, concludedthat "the dwelling was not properly decontaminated [and] residue of at least onehazardous compound" remained, actual testing of the residence found no evidence of teargas; similarly, no evidence of volatile organic compounds above an acceptable level weredetected. Rowzee did report, however, that "[c]ompounds consistent with thedecontamination of a dwelling using chlorine dioxide/chlorite were found," and that thesymptoms reported by plaintiffs were "consistent with an overexposure to chlorinedioxide, sodium chlorite and sodium chlorate."
Plaintiffs commenced action No. 1 against Amica in June 2011 and served anamended complaint in November 2012 alleging, among other things, breach of contract.In the interim, plaintiffs commenced action No. 2 in April 2012 against Amica, Duct andVent, USA Decon and its president, defendant Robert Demaret, alleging, among otherthings, negligence and toxic tort and seeking to recover for the injuries allegedlysustained.[FN2]Supreme Court granted Amica's subsequent motion to dismiss the complaint in actionNo. 1 as to the breach of contract cause of action, finding such claim to be time-barred,and joined the surviving causes of action with those asserted in action No. 2. Followingdiscovery, defendants each moved for summary judgment dismissing the complaint(s)and any asserted cross claims against them. After reviewing the voluminous recordbefore it, Supreme Court granted defendants' respective motions for summary judgmentand dismissed the complaint(s) against them in their entirety. This appeal by plaintiffsensued.[FN3]
We affirm. "It is well-established that an opinion on causation should set forth aplaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness(general causation) and that [the] plaintiff was exposed to sufficient levels of the toxin tocause the illness [alleged] (specific causation)" (Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]; see Cornell v [*4]360 W. 51st St. Realty, LLC, 22 NY3d 762, 784[2014]; Lindkvist v TravelersIns., 111 AD3d 452, 452 [2013]; Nonnon v City of New York, 88 AD3d 384, 394 [2011]; Jackson v Nutmeg Tech., Inc.,43 AD3d 599, 601 [2007]). Although neither a "precise quantification" nor "anexact numerical value" is required in order to demonstrate specific causation, it remains"a plaintiff's burden to establish [that there was] sufficient exposure to a substance tocause the claimed adverse health effect" (Cornell v 360 W. 51st St. Realty, LLC,22 NY3d at 784 [internal quotation marks and citation omitted]; see Ivory v International Bus.Machines Corp., 116 AD3d 121, 126 [2014], lv denied 23 NY3d 903[2014]; Jackson v Nutmeg Tech., Inc., 43 AD3d at 602). As to the quality ofproof required, "[t]he professional reliability exception to the hearsay rule. . . enables an expert witness to provide opinion evidence based onotherwise inadmissible hearsay, provided it is demonstrated to be the type of materialcommonly relied on in the profession" (Matter of Greene v Robarge, 104 AD3d 1073, 1074 [2013][internal quotation marks and citation omitted]; see Matter of Dakota F. [Angela F.], 110 AD3d 1151, 1153[2013], lv denied 22 NY3d 1015 [2013]; O'Brien v Mbugua, 49 AD3d 937, 938 [2008]). That said,"even if the reliability of the evidence is shown, it may not be the sole basis for theexpert's opinion on an ultimate issue in the case, but rather it may only form a link in thechain of data which led the expert to his or her opinion" (O'Brien v Mbugua, 49AD3d at 938 [internal quotation marks, brackets and citation omitted]; see Anderson v Dainack, 39AD3d 1065, 1067 [2007]).
Here, in support of their respective motions for summary judgment, defendantssubmitted, among other things, the material safety data sheet for "Get the Odor Out,"various laboratory analyses and test results, the examination before trial testimony ofKendall, her spouse, Demaret (USA Decon), John Van Raalte (Occupational &Environmental Health Center of Eastern New York), Timothy Gerardi (Amica) andMichael Vinick (Duct and Vent), as well as the expert affidavit and report of JonathanBorak—a board-certified physician in internal medicine, occupational medicineand toxicology. Demaret and Vinick each described the extent of the work performed atplaintiffs' residence, including the substances utilized during the course of theremediation and cleaning processes. Notably, Demaret testified that he had utilized "Getthe Odor Out"—an "effective, nontoxic product"—on approximately 500properties and had never received a single complaint. According to Demaret, he and hiscrew wore personal protective equipment for the first three days of the remediationproject but thereafter wore "shorts and T-shirts" without experiencing any adverse healtheffects. Finally, Demaret testified that when he and Kendall did the final walk-through,neither he nor Kendall displayed any symptoms of tear gas exposure. Vinick offeredsimilar testimony as to the scope of the work performed at plaintiffs' residence, whichwas limited to cleaning the duct work, and stated that he had never received anycomplaints—from either his customers or his workers—of any ill effectsstemming from the use of "EnviroCon" during cleaning operations. Vinick also testifiedthat his employees did not complain of any symptoms of tear gas exposure as a result ofperforming work at plaintiffs' residence. As noted previously, post-remediation airquality testing—the parameters of which were described by Van Raalte at hisdeposition—revealed "that the cleanup was thorough and the air in the residence[was] no longer contaminated by the effects of the CS tear gas and powder."
In addition to the foregoing, Borak provided a detailed affidavit and expert reportrelative to the issues of general and specific causation. Preliminarily, to the extent thatplaintiffs take issue with the admissibility of certain of the test results and/or reportsreviewed by Borak, we are satisfied that such documents are "the type of material[s]commonly relied on in the profession" (Matter of Greene v Robarge, 104 AD3dat 1074 [internal quotation marks and citation omitted]) and, further, that such materialswere merely "a link in the chain of data" upon which Borak ultimately relied in forminghis expert opinion (Anderson v Dainack, 39 AD3d at [*5]1067 [internal quotation marks and citations omitted]).Accordingly, we discern no basis upon which to set aside Borak's expert opinion orreport (compare Borden v Brady, 92 AD2d 983, 984 [1983]).
As to the substance of Borak's report, Borak readily acknowledged that Kendall wasexposed to tear gas residue on April 5, 2009 (and most likely the following day aswell)—as the result of which she "developed acute symptoms that were consistentwith the expected acute effects of tear gas exposure." Borak further acknowledged thatcertain of the pulmonary symptoms of which Kendall now complains may have resultedfrom her acute exposure to tear gas on those dates. Borak noted, however, that there wasno evidence that Kendall was exposed to tear gas residue following the remediation ofplaintiffs' residence. Absent evidence of such exposure, plaintiffs simply cannot establishthat Kendall "was exposed to sufficient levels of the toxin to cause the [pulmonary]illness [alleged] (specific causation)" (Parker v Mobil Oil Corp., 7 NY3d at 448).As to the balance of Kendall's physical complaints, Borak opined that it was "probable"that Kendall's "skin complaints since April 2009 represented relapses and flares of herlifelong eczema," noting that it would be "very unlikely" for CS tear gas to produce suchsymptoms six months after the initial exposure. Finally, Borak found "no evidence" tosupport a connection between Kendall's urinary and gynecological symptoms andexposure to CS tear gas.
With respect to the cleaning agents used, Borak noted that there was "no evidence ofresidual chlorine dioxide, sodium chlorite or sodium chlorate in [plaintiffs'] home," andno "evidence that . . . Kendall suffered 'overexposure' to any of thoseagents." Additionally, Borak found "no evidence in the scientific literature that inhalationexposures to [the cited compounds were] associated with human pulmonary toxicitygenerally or [reactive airways dysfunction syndrome (the specific ailment alleged byKendall)] in particular." Further review of the medical literature also disclosed "noevidence" and/or "no data" to support a causal connection between exposure to chlorinedioxide, chlorite salts or chlorate salts and Kendall's skin diseases, bladder infections ormenstrual irregularities. Hence, Borak opined, there was no evidence to suggest thatKendall developed her various ailments as a result of any exposure to these particularcompounds.
The foregoing proof is more than sufficient to demonstrate a lack of specificcausation relative to Kendall's alleged post-remediation exposure to tear gas and, further,a lack of both general and specific causation as to Kendall's alleged exposure to theoffending cleaning agents. Hence, defendants demonstrated their prima facie entitlementto judgment as a matter of law, thereby shifting the burden to plaintiffs to tendersufficient proof to raise a question of fact in this regard.
Simply put, neither the assessment submitted by Rowzee (CertifiedDecontamination) nor the affidavits tendered by plaintiffs' experts—John Quinn,Michael Klein and William Meggs—were sufficient as to, among other things,raise a question of fact relative to specific causation. The report authored by Rowzeereflects that no evidence of CS tear gas was found in plaintiffs' residence during hisNovember 2010 inspection thereof. Although Rowzee indicated that "[c]ompoundsconsistent with the decontamination of a dwelling using chlorine dioxide/chlorite werefound" in plaintiffs' residence, no attempt was made to quantify the levels thereof, muchless demonstrate that such compounds existed in concentrations above acceptable levels.Klein, a professional engineer and certified hazardous materials manager, was critical ofthe remediation and cleaning processes, took issue with the cleaning agents employedand ultimately opined that the work was performed in a negligent manner, but his reportfailed to document the presence of any contaminants in plaintiffs' home, nor did he makeany causal connection between either the CS tear gas or the cleaning agents andKendall's resulting injuries. Quinn, a chemist, [*6]wassimilarly critical of the cleaning agent employed during the tear gas remediation phase ofthe work but, again, offered no causal connection between the contaminants allegedlyremaining in plaintiffs' residence and Kendall's asserted ailments. Finally, Meggs, aboard-certified physician in, among other things, medical toxicology, opined thatKendall's "signs and symptoms [were] consistent with a reexposure to CS tear gas, albeitat lower doses than the doses classically associated with toxicity." Meggs affidavit,however, ignores the fact that the record before us is devoid of any scientific testingdocumenting the post-remediation presence of CS tear gas in plaintiffs' home. The recordis similarly devoid of any measurable level of residual and allegedly hazardous cleaningagents in plaintiffs' home. Absent such proof—and without expert testimonyestablishing, among other things, specific causation between the alleged contaminantsand Kendall's injuries—plaintiffs failed to raise questions of fact sufficient todefeat defendants' respective motions (see Cleghorne v City of New York, 99 AD3d 443, 447-448[2012]; Coratti v WellaCorp., 56 AD3d 343, 343-344 [2008]; Nawrocki v Coastal Corp., 45 AD3d 1341, 1342 [2007],lv denied 10 NY3d 710 [2008]). As Supreme Court succinctly stated, "allegationsof inadequacies in the decontamination process do[ ] not equate to the existence of CStear gas or other chemicals in [p]laintiffs' home." Plaintiffs' remaining arguments, to theextent not specifically addressed, have been examined and found to be lacking in merit,and Amica's arguments relative to the cross claims asserted against it are, in light of ourconclusions, academic.
Peters, P.J., McCarthy, Devine and Clark, JJ., concur. Ordered that the order isaffirmed, with one bill of costs. [Prior Case History: 44 Misc 3d 1201(A), 2014 NYSlip Op 50943(U).]
Footnote 1:Electrical service to theresidence had been turned off earlier in the day at the request of law enforcement.
Footnote 2:Although action No. 2also was commenced against Colonial Cleaners, such action subsequently wasdiscontinued by stipulation upon the merits and with prejudice. Additionally, Kendall'sspouse apparently discontinued his personal injury claims, leaving him with only aderivative claim based upon Kendall's asserted injuries.
Footnote 3:Although the partiesraise various procedural issues with regard to the viability of certain of the claims andcross claims asserted in action Nos. 1 and 2, as we are persuaded—for the reasonsthat follow—that Supreme Court's order should be affirmed in its entirety, we willaddress the substance of the claims asserted without parsing out the specific proceduralarguments relative thereto. Additionally, as is apparent from a review of plaintiffs' briefand their verified bills of particulars, Kendall is alleging damages based upon exposure"to the remaining CS tear gas in [plaintiffs'] home and the toxic chemicals [allegedlyused in the remediation and cleaning process] when they returned to live in their house inOctober 2009 through March 5, 2010." Hence, our analysis of the proof tendered insupport of—and in opposition to—defendants' respective motions will belimited to this post-remediation period.