Opinion
190044/2016
09-07-2018
Steven Andrew COHEN, Individually and as Personal Representative of the Estate of Sandra Florence Cohen, Deceased, Plaintiff, v. AMERICAN BILTRITE INC., et al., Defendants.
I. THE PARTIES' CLAIMS
Plaintiff sues defendants to recover damages for the decedent Sandra Cohen's exposure to asbestos from talc contaminated with asbestos in the Cashmere Bouquet talcum powder that Sandra Cohen used from 1951 to the early 1970s and that was manufactured by defendant Colgate-Palmolive Company. Plaintiff moves to preclude the testimony at trial by Colgate-Palmolive's expert cell biologist, toxicologist, and professor of pathology Brooke Mossman Ph.D., on two principal grounds. (1) She is unqualified to testify regarding the geological aspects of asbestos. (2) She lacks independent scientific support for any of her conclusions relevant to this action, whether in the field of geology, biology, or toxicology. For the reasons explained below, the court grants plaintiff's motion in part.
The court will preclude expert evidence if scientific literature, Sean R. v. BMW of N. Am., LLC , 26 NY3d 801, 809 (2016) ; Fraser v. 301-52 Townhouse Corp. , 57 AD3d 416, 418 (1st Dep't 2008), or the evidence in the record at trial does not support the expert's conclusion. Guzman v. 4030 Bronx Blvd. Assoc. L.L.C. , 54 AD3d 42, 51-52 (1st Dep't (2008). See Tamhane v. Citibank, N.A. , 61 AD3d 571, 574 (1st Dep't 2009). Plaintiff seeks to preclude Dr. Mossman's anticipated conclusions regarding types of asbestos minerals that are less hazardous than other types and specifically that exposure to cleavage fragments of asbestos minerals does not increase the risk of mesothelioma. Plaintiff points to Dr. Mossman's candid admissions that she cannot define a cleavage fragment or differentiate asbestos fibers from cleavage fragments.
Colgate-Palmolive responds that it will rely on the testimony of its expert geologist, not Dr. Mossman, for those points and denies that it will elicit testimony from her about the potency of different types of asbestos minerals in causing mesothelioma. While Dr. Mossman may not testify in the field of mineralogy or geology, outside her area of expertise, Mahai-Sharpe v. Riverbay Corp. , 126 AD3d 573, 573 (1st Dep't 2015) ; Fortich v. Ky-Miyasaka , 102 AD3d 610, 610 (1st Dep't 2013) ; Kaplan v. Karpfen , 57 AD3d 409, 410 (1st Dep't 2008) ; Timmins v. Tishman Constr. Corp. , 9 AD3d 62, 69 (1st Dep't 2004), as a biologist and toxicologist she may testify about the biological and toxicological effects on humans of minerals' components or properties as found by geologists or other experts in that field. Sadek v. Wesley , 27 NY3d 982, 983-84 (2016) ; Board of Mgrs. of 195 Hudson St. Condominium v. 195 Hudson St. Assoc., LLC , 63 AD3d 523, 524 (1st Dep't 2009). Although plaintiff claims that Dr. Mossman fails to cite any studies to support the conclusion that cleavage fragments comprised of minerals that comprise asbestos fibers do not cause disease, Colgate-Palmolive maintains that she will conclude only that nonasbestiform cleavage fragments do not pose the same risk of disease as asbestos. Colgate-Palmolive does present published scientific articles supporting this conclusion. Sadek v. Wesley , 27 NY3d at 984 ; Cornell v. 360 W. 51st St. Realty, LLC , 22 NY3d 762, 781 (2014) ; Brown v. Speaker , 66 AD3d 422, 423 (1st Dep't 2009). See Sean R. v. BMW N. Am., LLC , 26 NY3d at 809 ; Fraser v. 301-52 Townhouse Corp. , 57 AD3d at 418 ; Chu v. New York State Urban Dev. Corp. , 47 AD3d 542, 543 (1st Dep't 2008).
II. CLEAVAGE FRAGMENTS
The dispute on these issues turns at least in part on the parties' respective definitions of cleavage fragments. Colgate-Palmolive uses the term as if cleavage fragments by definition do not comprise asbestos fibers. Plaintiff concedes that cleavage fragments that do not comprise asbestos minerals do not cause disease, but maintains that cleavage fragments may comprise asbestos minerals, which may become fibrous when milled or ground into the talc used in talcum powder.
In fact Dr. Mossman's recent deposition testimony June 18, 2018, in a New Jersey action lends support to plaintiff's position. After testifying that the regulatory definition of an asbestos fiber set by the National Institute for Occupational Safety and Health and federal Occupational Safety and Health Administration is a fiber with "an aspect ratio of three to one length to diameter," Aff. of Leah C. Kagan Ex. 2, at 18, Dr. Mossman conceded that cleavage fragments "can be a ... fiber with a three to one if they're milled and they break in that fashion." Id. at 31. In any event, this dispute is among the issues that will be resolved through the geological or other expert evidence regarding the definition, composition, and properties of cleavage fragments and how their composition and properties may change when the fragments are milled or ground.
Given where the parties' dispute lies, plaintiff raises a valid objection to the introduction of Dr. Mossman's past research and any conclusions drawn from it insofar as it analyzed only chunks of minerals broken off from their original rock formations, which plaintiff concedes do not, in the form of chunks, cause disease. In the testimony from June 18, 2018, Dr. Mossman conceded that she had "never worked with the asbestiform varieties of tremolite, anthophyllite or actinolite," but she did not offer the same concession regarding the other asbestos minerals: crocidolite, amosite, and chrysotile. Id. at 32. This testimony confirmed her deposition testimony November 29, 2016, in a California action. Kagan Aff. Ex. 4, at 25-26. She did concede her lack of knowledge June 18, 2018, of whether she had tested fibers or nonfibers, because "we weren't really testing fibers," Kagan Aff. Ex. 2, at 37, and, when asked whether any of the cleavage fragments she tested bore the characteristics of fibers, she repeated her inability to answer: "I would have to go back and look at the raw data...." Id. at 39. "I couldn't say that unless I actually go back and look at the dimensions." Id.
On the other hand, Dr. Mossman's prior deposition testimony July 14, 2017, in another New Jersey action indicates that her research has analyzed fibrous amphibole asbestos minerals, which, to be consistent with her testimony June 18, 2018, would refer to crocidolite, amosite, or both, and which she suggested may lead to cancer. Referring specifically to"the development of mesothelioma," Dr. Mossman described "our research" as "showing that iron and oxidants that are generated by amphibole fibers are important in causing precancerous responses in cells." Kagan Aff. Ex. 1, at 34. She also displayed her knowledge that "a long, needle-like, thin fiber will be able to get into the deep lung ....In addition, long, thin fibers get trapped ...in the pleura, and because of their length and thin width, they can't ...be cleared effectively by the lymphatic system." Id. at 44. Specifically regarding cleavage fragments, however, if Dr. Mossman cannot confirm, as she could not June 18, 2018, that her research analyzed anything other than nonasbestiform cleavage fragments, that research and any conclusions drawn from it, as well as any published scientific articles to the same effect, are irrelevant and therefore will be precluded. People v. Harris , 93 AD3d 543, 544 (1st Dep't 2012) ; Matter of Paul Antoine Devontae R. (Paul R.) , 78 AD3d 610, 611-12 (1st Dep't 2012) ; People v. Argentieri , 66 AD3d 558, 560 (1st Dep't 2009) ; Holley v. Transoceanic Cable Co. , 301 AD3d 417, 421 (1st Dep't 2003).
III. BIOLOGICAL EFFECTS ON HUMANS
As for plaintiff's motion to preclude Dr. Mossman's testimony about the biological effects of minerals' composition or properties, again, if Dr. Mossman analyzed only the effects of nonasbestiform cleavage fragments, that analysis is likewise irrelevant. Even if she analyzed asbestiform cleavage fragments or asbestos minerals that were not cleavage fragments, she also recently conceded her lack of knowledge regarding the biological effects of both tremolite cleavage fragments and tremolite asbestos: "I am unaware of individuals who have used tremolite cleavage fragments comparatively with tremolite asbestos in biological systems." Kagan Aff. Ex. 2, at 24. When asked whether her opinion was "that a tremolite cleavage fragment does not cause disease, ... based on human data," she admitted her lack of qualifications to answer: "I would not be an expert in that. I cannot think of workers that have been exposed to ... non-asbestos tremolite." Id. at 34. Regarding anthophyllite, when asked whether cleavage fragments that bore the characteristics of fibers were "incapable of inducing mesothelioma," she admitted both her lack of qualifications to answer and the lack of scientific support for that conclusion: "I really would not know. I don't think the data is sufficient to make a conclusion like that." Id. at 36. Nevertheless, she did not offer the same admissions regarding the other asbestos minerals: chrysotile or actinolite as well as crocidolite or amosite.
Consequently, unless Dr. Mossman has conducted further research or become familiar with further studies regarding the biological effects on humans of tremolite cleavage fragments or of fibrous anthophyllite cleavage fragments since June 18, 2018, the court will preclude her testimony on those subjects, since she has admitted her lack of qualifications to give that testimony. Mahai-Sharpe v. Riverbay Corp. , 126 AD3d at 573 ; Fortich v. Ky-Miyasaka , 102 AD3d at 610 ; Kaplan v. Karpfen , 57 AD3d at 410 ; Timmins v. Tishman Constr. Corp. , 9 AD3d at 69. To establish her qualifications to testify regarding the biological effects on humans of any asbestos minerals in any form, she must distinguish her research or the studies with which she is familiar from her knowledge June 18, 2018, regarding tremolite and anthophyllite. Again, in the context of her testimony July 14, 2017, about amphibole asbestos minerals, which include more than tremolite and anthophyllite, and the human respiratory tract, Kagan Aff. Ex. 1, at 33, she did suggest her competence to testify regarding "cleavage fragments or small fibers and how cells of the respiratory tract deal effectively with removal of these small fragments." Id. at 34.
IV. CONCLUSION
In sum, the court grants plaintiff's motion to preclude Brooke Mossman Ph.D.'s testimony to the extent of precluding the testimony specified above, absent further foundational testimony, but otherwise denies his motion to preclude her testimony about the biological effects of minerals' components or properties on humans, without prejudice to his objections at trial. The court holds Colgate-Palmolive, however, to its position that Dr. Mossman will not draw any conclusion herself about what those components or properties are, nor testify about the potency of different types of asbestos minerals in causing mesothelioma.