Berger v. Amchem Products

13 Misc. 3d 335
CourtNew York Supreme Court
DecidedJuly 10, 2006
StatusPublished
Cited by4 cases

This text of 13 Misc. 3d 335 (Berger v. Amchem Products) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berger v. Amchem Products, 13 Misc. 3d 335 (N.Y. Super. Ct. 2006).

Opinion

OPINION OF THE COURT

Helen E. Freedman, J.

In these actions, defendant DaimlerChrysler Corporation moves in limine for (i) an order precluding plaintiffs from offering evidence that exposure to automotive friction products causes asbestos disease in motor vehicle mechanics; and (ii) an order pursuant to CPLR 3212 dismissing plaintiffs’ complaints and all cross claims against DaimlerChrysler Corporation in their entirety. Based on the foregoing, both motions are denied. Alternatively, defendant DaimlerChrysler seeks a Frye (United States v Frye, 293 F 1013 [1923]) hearing for the purpose of demonstrating that the chrysotile asbestos fibers in motor vehicle brakes are not associated with an increase in the incidents of asbestos related diseases beyond the incidence of such diseases in the general population, that is people who have no known occupational exposure to asbestos. That application is also denied without prejudice to making such an application in any specific case before or at trial.

Both decedents in this case, Herman Berger and Arnold Nygaard, died from mesothelioma, a signature asbestos related disease, after extensive exposure in their respective businesses to brake and clutch dust from Chrysler products. However, it is this court’s understanding that this motion is designed to apply to all asbestos cases in the New York City Asbestos Litig. involving DaimlerChrysler as a friction (brake and clutch) defendant. Mr. Berger owned garages from 1945 to 1949 and from 1951 to 1980. He had been a welder in the Brooklyn Navy Yard from 1941 to 1944 where he was also exposed to asbestos. Mr. Nygaard was exposed to Chrysler product dust in his own trucking business from 1950 to 1965. He may have had shipyard exposure as well.

DaimlerChrysler, in support of its applications, sets forth various epidemiological studies which purportedly show that [337]*337motor vehicle workers are not at any greater risk for contracting asbestos related diseases than those in an unexposed or general population. Specifically, Daimler Chrysler supports its contentions with two affidavits by Mary Jane Teta, Ph.D. Dr. Teta has a doctorate in public health, specializing in chronic disease epidemiology, and a Master’s in public health in biostatistics, both from Yale University. She has been an occupational epidemiologist for over 25 years. Dr. Teta explains the purpose of epidemiological studies and then describes two types of studies, one known as a cohort study and another as a case control study, the latter of which she opines is recognized as the most appropriate approach to the study of causes of “rare” diseases such as mesothelioma. She then states that the results of six of eight case control epidemiological studies demonstrate that there is no increased risk for mesothelioma among those exposed to brake work dust (friction dust) when compared with the risk to the general population. She also opines that there is considerable difference between exposures that automobile mechanics undergo and exposures undergone by others who are occupationally exposed to asbestos. She avers that the chrysotile fibers in automobile brakes or friction products are shorter than most chrysotile fibers (less than five microns in length), are embedded in resin, and that after heating through friction use become forsterite which is no longer asbestos and not capable of causing asbestos related diseases. She also states that the brake fibers (all chrysotile) are hundreds of times less potent than amphibole (crocidolite, tremolite, amosite) fibers, a fact that no one disputes. Dr. Teta has testified before this court and other judges in both this and other courts in this jurisdiction in individual cases involving friction related asbestos exposure, and while her testimony has been admitted, no court has found it to be determinative. However, Justice Raymond Cornelius found Dr. Teta’s submissions sufficiently persuasive to order a Frye hearing to determine the admissibility of evidence linking working with friction products, specifically brake repair work, to development of mesothelioma. (See Matter of Seventh Jud. Dist. Asbestos Litig., 9 Misc 3d 306 [Sup Ct, Wayne County 2005].) That hearing, in which plaintiff was told it would have the burden of proof to demonstrate general acceptance of its methodology, was never held because plaintiff moved to dismiss the claims against DaimlerChrysler.

Dr. Teta also responds to plaintiffs’ arguments contending that plaintiffs’ experts do not follow generally accepted [338]*338methodology which requires following the accepted hierarchy of epidemiological evidence. She states that Dr. Panitz and Dr. Le-men, two of plaintiffs’ experts, rely on a weight-of-evidence approach, akin to the case study approach, which is at best on the “lowest rung” of scientific evidence and compares unfavorably with epidemiological evidence. Dr. Teta opines that plaintiffs’ experts base their opinions on (1) case reports and case series, (2) increased risks of mesothelioma in asbestos exposed workers in other occupations, and (3) observations of chrysotile in human lungs and observations of asbestos exposure in garages that install and repair brakes. These would constitute a reasonable basis for forming a hypothesis related to mesothelioma and brake work, if the studies had not already been conducted and the hypothesis rejected. Biological plausibility cannot be substituted for epidemiological evaluation according to Dr. Teta. The epidemiological evidence related to chrysotile exposure in other occupations that plaintiffs’ experts rely upon is not relevant to brake work mechanics or garage workers. The fibers in brakes are shorter, resin bound, and subject to high temperatures, all of which render them less toxic than other chrysotile fibers. Dr. Teta also rejects plaintiffs’ expert Dr. Egilman’s criticism of Goodman’s meta analysis as selective and industry funded on the ground that neither criticism is warranted and that Dr. Egilman has developed no alternative that would show anything different.

Movants also furnish an affidavit by Suresh H. Moolgavkar, a physician with a Ph.D. in mathematics and postdoctoral training in epidemiology and biostatistics. He is currently a member of the Fred Hutchinson Cancer Research Center in Seattle and a professor of epidemiology, adjunct professor of biostatistics, and adjunct professor of applied mathematics at the University of Washington at Seattle. Dr. Moolgavkar opines that the molecular steps in the pathogenesis of mesothelioma are unknown, and which of these steps may be influenced by the presence of asbestos mineral fibers is unclear. The diversity of chemical and physical properties of the mineral fibers means that certain types of asbestos fibers, those in molded brakes or friction products, differ from chrysotile fibers found in other sources. He invokes experimental research and studies performed by others including R. Valentine et al. demonstrating that heating chrysotile at a range of 300 to 400 degrees centigrade substantially reduced cytotoxicity to human fibroblast cells. He asserts that it is well known that the braking process involves [339]*339temperatures that eventually transform a majority of chrysotile fibers into forsterite, an inert mixture of silica and magnesia. According to research by Arthur M. Danger et al. published in 2002, that transformation occurs at temperatures around 650 degrees centigrade. Danger’s research suggests that forsterite does not have the same biological activity (disease causing capability) as other fibers.

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Bluebook (online)
13 Misc. 3d 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berger-v-amchem-products-nysupct-2006.