NEW YORK (Legal Newsline) - A lawsuit over a man who blamed his fatal lung cancer on vinyl floor tile failed to prove he could have inhaled enough of the dangerous fibers to cause his disease, a New York appeals court ruled, continuing a line of victories for defendants in cases in which plaintiff experts fail to specify a lethal exposure to asbestos.
Kenneth J. Dyer sued Amchem Products and American Biltrite on behalf of the late Kenneth C. Dyer, claiming he died as a result of exposure to ABI vinyl flooring that contained asbestos fibers. The elder Dyer said he “cut, manipulated and broke” the tiles to demonstrate their use to customers.
A trial court rejected ABI’s motion to dismiss but the First Department Appellate Division reversed, ruling that the company had provided enough evidence that Dyer didn’t inhale significantly more asbestos from the tile than he would have been exposed to anyway. People inhale billions of asbestos fibers over their lifetimes from a variety of sources. ABI cited a 2007 study that showed cutting and scoring its floor tile wouldn’t expose a worker to any more airborne asbestos fibers than are in ambient air.
Citing precedential decisions that laid out the challenge for plaintiffs in New York asbestos cases, the appeals court said “exposure simulation studies must account for the amount of respirable asbestos fibers released from the toxic product. Simply quantifying the magnitudes of asbestos fibers released into the environment is insufficient.”
The plaintiff’s main expert, Dr. Mark Ellis Ginsburg, relied on medical journals and regulatory standards to determine Dyer’s lung cancer was from asbestos exposure. But that wasn’t enough, the court said: Ginsburg had to show the amount of airborne asbestos fibers the plaintiff inhaled and compare that to the level known to cause lung cancer.
“Dr. Ginsburg does not provide any reliable correlation between the presence of asbestos fiber concentrations found in the studies and how much in haled asbestos would have caused lung cancer generally and the decedent's lung cancer in particular,” the court concluded.
Defense lawyers in New York are relying on a pair of cases, Juni v. A.O. Smith from 2018 and the 2006 Parker v. Mobil Oil decision, to force plaintiffs to produce scientific evidence they were exposed to enough asbestos to cause disease. The Juni decision in particular rejected the idea, commonly propounded by plaintiff medical experts, that there is no safe level of asbestos exposure and even a single fiber could cause cancer.