This consolidated appeal concerns nine separate toxic tort actions in which the plaintiffs allege that they, or their family members, who live or lived in the vicinity of the Pelham Bay Landfill in the Bronx (“the Landfill”) were exposed to hazardous substances in the Landfill and contracted either acute lymphoid leukemia (“ALL”) or Hodgkin’s disease, which they claim were caused by that exposure. The total damages claimed is approximately $5 billion.
Defendant-appellant, the City of New York (“the City”), has appealed from the order and decision of the Appellate Division, First Department, dated June 6, 2006 in which, by a three to two majority, the Appellate Division upheld the denial of the City’s motion for summary judgment dismissing these actions by the Supreme Court, Bronx County. The Appellate Division granted the City leave to appeal on a certified question as to whether the order of the Supreme Court, as modified by the Appellate Division, was properly made. The City seeks reversal based on Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006).
Should the City’s motion for summary judgment have been granted where plaintiffs failed to meet their burden to show causation, both general and specific, in that their belated experts’ submissions were conclusory, lacked foundation and were based on scientifically-invalid and infirm methodologies not generally-accepted in the scientific community?
ALF’s Amicus Brief:
Amici argue that the court below erred in denying the City’s motion for summary judgment because the Plaintiffs expert testimony was not scientific and unreliable, and did not fulfill the requirements of either general or specific causation for any chemical emitted from the Landfill as causing ALL or Hodgkin’s Disease in Plaintiffs.
The first expert performed a geographical correlation study, that was not provided to the court or to the defense, denying the City a chance to cross examine the supposed science that the expert based his conclusions upon. His affidavit was insufficient to allow a reader to understand, let alone repeat, his statistical methods. This correlative study was contradicted by two studies conducted by the city that found no correlation between proximity to the landfill and ALL or Hodgkin’s Disease.
The disease(s) at issue are acute lymphocytic leukemia (ALL) and Hodgkin’s Disease. No chemicals are known to cause either of these diseases. Leukemia is a general term for a cancer of the blood. While it is true that ALL is a form of leukemia and benzene is known to cause a form of leukemia, benzene has been proven, and is generally accepted, to cause only acute myelogenous leukemia (AML), and not other forms of leukemia such as ALL.
Neither of the Plaintiffs’ other two witnesses show that any chemical is known to generally cause Hodgkin’s or ALL. One looked to establish “possible” exposure pathways, but still lacked the critical foundational relationship that between a chemical and a disease. Neither study showed at what dose any of the chemicals looked at could cause ALL or Hodgkin’s, nor did they provide any evidence about what frequency the Plaintiffs may have been exposed at.
If the Plaintiffs could not show that any chemical from the Landfill causes their diseases, and provided no evidence about the frequency of their exposure, then they did not prove general or specific causation. Amici ask this Court to reverse the court below.
Status:
On June 27, 2007, the Court issued an adverse opinion.
