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November 8, 2006

New York Court Rules That Parties Must Quantify Exposure in Toxic Tort Cases

A key issue in toxic tort cases is whether the plaintiff has been exposed to a toxin at a sufficient level to cause the injury from which the plaintiff suffers.  Many courts have been somewhat lax in requiring plaintiffs to prove that they were exposed to a sufficient dose to cause harm saying, on one hand, that plaintiff's must prove that they have been exposed to harmful levels of a toxin, but on the other hand, saying that precise data on the exact degree of exposure is not required. 

In Parker v. Mobil Oil Corp., 2006 WL 2945397 (N.Y., Oct. 17, 2006) the plaintiff alleged that benzene exposure during his years as a gas station attendant had caused his leukemia.  The plaintiff offered expert testimony in the form of two experts' reports.  One expert's report said that a study of rubber-plant workers linked benzene exposure to leukemia and plaintiff's exposure to gasoline was "extensive" and that he had "abundant opportunity" for exposure.  A second expert's report relied on a study showing a link between benzene exposure of refinery workers and leukemia and concluded that plaintiff had "far more" exposure that refinery workers without saying how.  The trial court denied the defendants' motions to exclude this evidence.  The Appellate Division reversed saying that the plaintiff's offer of evidence failed to quantify his level of exposure and that it was, therefore, impossible for the experts to determine whether his exposure exceeded the threshold level exposures previously shown to cause leukemia. 

The New York Court of Appeals affirmed, saying that the plaintiff's experts' opinions lacked adequate foundation because the experts did not quantify the plaintiff's exposure to benzene.  The conclusions in the disputed experts' reports, said the court, were "conclusory," "subjective," and not scientifically reliable.  The court specifically said that a plaintiff need not prove the exact amount of his exposure, a difficult and sometimes impossible task.  However, the court makes clear that a plaintiff must prove not only that he was exposed to a toxin that is capable of causing his alleged injury, but exposed at a level sufficient to cause the illness. 

JDP

November 8, 2006 | Permalink

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