Gushue v Levy

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Gushue v Levy 2012 NY Slip Op 32483(U) September 27, 2012 Supreme Court, New York County Docket Number: 106645/05 Judge: Jeffrey K. Oing Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 912812012 [* 1] +SUPREME COURT OF THE STATE OF NEW YORK 9 PRESENT: '- - NEW YORK COUNTY JEFFREY K.O1NG PART J.S.C. q$ Index Number : IO664512005 INDEX NO. GUSHUE, KATHLEEN vs . LEVY, NORMAN MOTION DATE MOTION SEO. NO. SEQUENCE NUMBER : 002 MOTION CAL. NO. SUMMARY JUDGMENT on this motion tolfor Notice of Motlonl Order to Show Cause - Affidavlts .. ; 3 LT - Exhlblts ... Answerlng Affldavlts - Exhlblts heplylng Affidavtta CrossrMotion: Yes No Upon the foregoing papers, It Is ordered that thla rnotlon "This motion i decided in accordance with the awexed decision and order of the Court," s FILED 3heck on& J.S,C, d FINAL DlSPOSlTlQN , Check if appropriata: NON-FINAL DISPOSITION c DO NOT POST ] SUBMIT ORDER/ JUDG. REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] KATHLEEN G U S H U E , Plaintiff, Index N o . : 106645/05 -against- Mtn S e q . No.: 002 ESTATE OF NORMAN LEVY, NFL REGAL, LLC D/B/A THE REGAL COMPANY, ALICE HUGHES, i n d i v i d u a l l y , CHARLES DEIDAN, i n d i v i d u a l l y , DEIDAN INDUSTRIES, D E I D A N INDUSTRIES, LTD, AND E J N DECISION AND ORDER CORPORATION, Defendants. JEFFREY K. OING, J.: YORK d' P a r t - " P l a i n t i f f K a t h l e e n Gushue * -- __ J _& - k n d a n t s " " E s ' t a t e o f Norman Levy, NFL R e g a l , LLC d/b/a The R e g a l Company, a n d A l i c e Hughes ( c o l l e c t i v e l y r e f e r r e d t o as t h e "Regal d e f e n d a n t s " ) d e f e n d a n t EJN Corp. d / b / a T r i b e c a P o t t e r s ("EJN") and ( t h e Regal d e f e n d a n t s a n d E J N c o l l e c t i v e l y r e f e r r e d t o as " d e f e n d a n t s " ) . Factual Background From 1 9 9 4 t o 2 0 0 4 , plaintiff a n d EJN were t e n a n t s i n a M a n h a t t a n b u i l d i n g located a t 443/451 G r e e n w i c h S t r e e t ( t h e "premises"), which t h e R e g a l d e f e n d a n t s owned. on t h e s e c o n d f l o o r f o r a p o t t e r y s t u d i o . EJN rented space P l a i n t i f f , an artist a n d a r t a d m i n i s t r a t o r , r e n t e d s t u d i o s p a c e on t h e t h i r d a n d fourth floor. I n 1 9 9 6 , p l a i n t i f f p a r t i t i o n e d t h e t h i r d floor s p a c e a n d subleased i t t o o t h e r a r t i s t s . During p l a i n t i f f ' s t e n a n c y on t h e t h i r d floor, s h e c o m p l a i n e d o f odors emanating from EJN's s e c o n d ¬loor space. I n i t s t e n y e a r t e n a n c y , EJN [* 3] * Index No. 106645/05 M t n Seq. No. 002 Page 2 of 20 received three violations from the NYC Department of Environmental Protection ( D E P ) - one violation for failing to have the necessary operating certificate and two violations f o r unspecified odors In spring 2003, plaintiff observed a resting tremor and decreased agility in her right hand. Santiago, MD examined plaintiff. In summer 2003, Anthony Thereafter, a number of doctors evaluated plaintiff to treat her condition and to determine possible causes of her condition. One of plaintiff s experts, Paul A. Nausieda, MD, a board certified neurologist specializing in movement disorders, explained the neurological conditions as follows: Parkinsonism is a term describing those neurological disorders which have clinical features including a tremor at rest (as opposed to tremor during voluntary movement), r i g i d i t y of the muscles, slowness of movement, and alterations in gait and station that result in a flexed posture and slowed shuffling gait with a tendency to fall rearward. Idiopathic Parkinson Disease is the most commonly encountered form of Parkinsonism and is a disorder of unknown etiology primarily affecting.individuals over the age of 60. Parkinsonism is also seen in a variety neurodegenerative conditions . . . in which pathologic changes occur in areas not affected by Idiopathic Parkinson Disease. . . . Secondary Parkinsonism is a term used to describe syndromes with a known etiology and includes various forms of drug induced Parkinsonism that are caused by pharmacologic agents. . . . Other forms of Parkinsonism are caused by various neurotoxins which damage areas of the b r a i n that regulate body movement and posture. . . . Manganese Poisoning results in pathologic damage to the Globus Pallidus and the Substantia Nigra. (Nausieda Affirm. , ¶ 12[d]). [* 4] Page 3 of Iidex No. 106645/05 Mtn Seq. No. 002 20 Defendants proffer the affidavits of Cheryl Waters, MD, FRCP; Karl D. Kieburtz, MD, M P H ; and Jose A. Obeso, MD in support of their respective summary judgment motions. Dr. Waters, a neurologist, examined plaintiff in October 2004 and indicated that plaintiff, suffered from idiopathic Parkinson s Disease for which she was adequately medicated with levodopa at the time of [ I examination (Waters Aff. , ¶ 3). Dr. Kieburtz, a neurologist, specializing in the diagnosis a n d treatment of movement and inherited neurological disorders, and familiar with published literature and studies concerning whether exposure to certain environmental toxicants, such as heavy metals (including manganese) and pesticides, might be a cause of Parkinson s disease stated, it is my opinion, to a reasonable degree of medical certainty, (and undisputed based upon the records provided to me) that Plaintiff s u f f e r s from idiopathic Parkinson s disease which is unrelated to any kiln fumes, including a n y manganese in the kiln fumes, to which she may have been exposed in the past (Kieburtz Aff., ¶¶ 7, 9, 10). Dr. Obeso opined, without hesitation, based on my own scientific w o r k , my regular attendance at scientific and medical meetings, and my position as Co-Editor-in-Chief of the major journal in the field, that it is not generally accepted among neurologists or movement disorder specialists that manganese causes Parkinson s disease (Obeso Aff ¶ 14) . In opposition, plaintiff proffers the affidavits of Elan D. Louis, MD; P a u l A. Nausieda, MD; Edward A. Olmsted, CIH, CSP [* 5] Index No. 106645/05 Mtn S e q . No. 002 Page 4 of 20 ("Olrnsted"); Monona Rossol, MS, MFA ("Rossol"); and Stephen King, PhD, MPH. Ds. Louis, a professor of neurology and a board certified neurologist, is currently plaintiff's treating neurologist. When he examined plaintiff in February and April 2005, he described plaintiff's clinical features as follows: rest tremor, rigidity, bradykinesia and gait and balance changes (flexed posture, reduced arm swing, imbalance), which are four cardinal feature of Parkinson's disease. These clinical neurological features are found in patients with Idiopathic Parkinson's Disease . . . , Gene-Induced Parkinson's Disease . . . , and manganese-Induced Parkinson's disease (i.e. Parkinson's disease whose cause is Manganese toxicity). (Louis Affirm., ¶ 7[a]). Dr. Louis concluded: It is highly likely that [plaintiff] was exposed to manganese containing fumes at her work place. She reports having worked for a prolonged period of time over a kiln with faulty exhaust, she complained of smelling fumes on many occasions to which she reports having had an allergic reaction, and her workplace ambient manganese levels were measured and were elevated. Manganese is a know (sic) neurotoxin that has been associated in epidemiological studies with Parkinson's disease and Parkinsonism. Given a known exposure to Parkinson's disease etiological agent (prior to her development of her clinical syndrome), the fact that her clinical features, PET results and MRI result are consistent with Manganese-induced Parkinson's disease, and the fact that Idiopathic Parkinson's disease (a rare disease to begin with) is even more rare in young women, her Parkinson's disease, to a reasonable degree of medical certainty, is Manganese induced Parkinson's disease rather than Parkinson's disease with no identified cause (Idiopathic Parkinson's disease). (Louis Affirm. , ¶ 7 [e]). [* 6] b Index No. 106645/05 Page 5 of 20 Mtn S e q . No. 002 Dr. Nausieda examined plaintiff in February 2010 and determined "within a reasonable degree of medical probability that [plaintiff] suffers from Manganese-Induced Parkinson's disease" (Nausieda Affirm., ¶ 6). Dr. Nausieda based his conclusion on plaintiff's symptoms since 2003, his observation of plaintiff's resting tremor on the right side and prominent antigravity tremor of the right hand, and " h e r symptoms [being] resistant to levodopa reversal though she has some responsiveness to levodopa replacement" (Nausieda Affirm., ¶ 12 [h]) . Dr. Nausieda also relied on the "[florensic testing of [plaintiff's] w o r k space [which] demonstrated the presence of abnormally high levels of manganese (270 u g / f t 2 ) , as well as a number of o t h e r metals" (Nausieda Affirm., ¶ 12 [i]) . The forensic testing referred to by Dr. Nausieda was conducted by Olmsted, an industrial hygienist and certified safety professional, retained by plaintiff. Olmsted conducted surveys, primarily on the third floor of the premises, on December 1 2 , 2002, August 5 , 2004, and May 25, 2005. Olmsted noted that the "[rleadings for Lead, Manganese, Zinc, Iron, Copper, Chromium, Cobalt, Silver and Cadmium were elevated'' (Olmsted Aff., ¶ 7). Olmsted also noted: Although there are no standards for settled manganese, there are government limits set for lead, which are 40 micrograms per square foot. In one complaint areas (sic), levels of lead were 300 times the limit for surface dust. Manganese levels were 10 times the amount in the complaint area than in the control area. (Olmsted Aff., ¶ 7). [* 7] Index No. 106645/05 Mtn S e q . No. 002 Page 6 of 20 Olmsted concluded, within a reasonable degree of professional certainty, that the kilns were improperly designed and operated, containing metals including manganese to enter the third floor s t u d i o space resulting in exposure to the occupants including [plaintiff] (Olmsted Aff., ¶ 7) . Plaintiff also offered the affidavit of R O S S O ~ , a chemist and industrial hygienist, who opined that as a result of an insufficient kiln ventilation system plaintiff was exposed to metal fumes during daily firings, including excessive levels of manganese in her studio (Rossol Aff., ¶¶ 3, 4, 5 ) . R o s s o l based her conclusions on general knowledge about clay and glazes, particularly EJN s use of Jasper; internet postings of defendant Emily Pearlman; knowledge of EnviroVent, the vent used by EJN, and its ventilation system and; the Olmsted Report (Rossol Aff., ¶¶ 7, 8 , 9, 11, 13, 15, 18, 20) T h e I n s t a n t Action Plaintiff Kathleen Gushue commenced this action against the Regal defendants and E J N alleging that she was exposed to noxious toxic fumes emanating from EJN s second f l o o r studio. Specifically, in her bill of particulars, plaintiff alleges exposure to toxic fumes from metals including lead, cadmium, manganese, copper, zinc, nickel, iron, chromium and cobalt .I alleges in h e r bill of particulars the following: 12. Set forth a detailed statement of the injuries a l l e g e d l y sustained by plaintiff and a description of those claimed to be permanent. She [* 8] Iidex No. 106645/05 Mtn S e q . No. 002 Page 7 of 20 Ans: T h e plaintiff was diagnosed with Parkinson's disease on or about July 15, 2003. Parkinson's Disease is a neurological syndrome usually resulting from a deficiency of the neurotransmitter dopamine as the consequence of degenerative, vascular, or inflammatory changes in the basal ganglia; characterized by rhythmic muscular tremors, rigidity of movement, festination, d r o o p y posture, and masklike faces. Plaintiff has tremor and stiffness in her right hand. She is right hand dominant. Tremor occurs at rest. Action tremor is slightly more prominent on the right than on the left side of her body, with loss of amplitude and early fatiguability when doing repetitive tasks. (Moving Papers, Ex. C, ¶ 12). The Regal defendants move, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross-claims against them. E J N cross-moves f o r summary judgment dismissing the complaint and all cross-claims against it. Defendants argue that plaintiff's claim that she suffers from manganese-induced Parkinson's disease is an impossibility. Therefore, because no causal connection can be proven, the complaint must be dismissed. Plaintiff contends that the system is idiopathic or caused by exposure to manganese. Thus, succinctly stated, the issue is whether manganese or manganese as contained in k i l n fumes caused plaintiff's Parkinson's disease. I heard extensive arguments on August 19, 2011. Discussion The principle is well accepted that in a toxic tort action plaintiff must establish: (1) exposure to a particular t o x i n ; (2) general causation - the toxin plaintiff was exposed to is capable [* 9] Index No. 106645/05 Page 8 of 20 Mtn S e q . No. 002 of causing the illness or condition she allegedly suffers; and (3) specific causation - plaintiff was exposed to sufficient levels of the toxin to cause the illness or condition she allegedly suffers (Parker v , Mobil Oil Corp., 7 N Y 3 d 434, 446 [2006]). Defendants challenge plaintiff's ability to satisfy the three prongs set forth in Parker, particularly because plaintiff pleads Parkinson's diseass, not Parkinsonism or manganese-induced Parkinsonism. Plaintiff asserts, however, that her experts' opinions demonstrate that she was exposed to manganese or manganese as contained in kiln fumes, that the manganese was capable of causing her injury and that the level of manganese to which she was exposed was sufficient to cause her injury. (1) Plaintiff's exposure to manganese Defendants argue that plaintiff cannot establish that she was exposed to manganese or manganese as contained in kiln fumes. To demonstrate exposure to manganese, plaintiff relies on (1) the two DEP violations for unspecified odor; (2) the Olmsted Report; and (3) the expert and doctor opinions. First, plaintiff's reliance on the DEP violations is misplaced because the violations do not specify that the complained of odor originated from manganese or manganese as contained in the kiln fumes emanating from E J N ' s second floor Second, defendants challenge plaintiff's reliance on the Olmsted Report. Defendants assert that the Olmsted Report is unreliable because (1) it did not provide any measurements or [* 10] Page 9 of Index No. 106645/05 Mtn Seq. No. 002 20 test results for airborne levels of manganese o r manganese as contained in kiln fumes in plaintiff's third floor studio or EJN's second floor space f o r any period of time; (2) it did not show plaintiff's exposure to manganese; (3) it did not demonstrate the source, date or any measured change of manganese surface concentration; and (4) there is no measurement of manganese as contained in the compounds used by EJN (Sapon Affirm., ¶ 8). More specifically, the Olmsted 2002 Indoor Air Quality Survey did not test for manganese a n d the 2004 Metals Testing Surveys took an air sample and swipe samples. The June 2004 survey used a test swipe f r o m the Paula Elliott Studio, a self-contained room located above the kiln room on the third f l o o r and the August 2004 survey used a test swipe taken from the A/J studio, where plaintiff worked. The June 2004 survey indicated "elevated" levels of manganese relative only to the control sample taken in the third f l o o r kitchen. The results of the August 2004 survey did not reveal elevated levels of manganese. Additionally, the surveys were conducted within plaintiff's space, but neither survey occurred in EJN's second floor studio space. While the Olmsted Report confirmed manganese as one of several metals identified in plaintiff's work space, there is no recognized level at which manganese exposure is known to be toxic (Olmsted Aff., ¶ 7). Thus, at best, the Olmsted Report revealed that manganese was present and indicated a 10% increase in manganese levels between the test and the control. [* 11] Page 10 of Index No. 106645/05 Mtn S e q . No. 002 20 Notwithstanding defendants' challenge to the consistency and reliability of the Olmsted R e p o r t , the record, which includes the competing physician and expert opinions, is clear - plaintiff was exposed to manganese. The next question is whether defendants have demonstrated an absence of a factual issue with respect to general and specific causation as a consequence of plaintiff's exposure. (2) Whether manganese is capadle of causing manganese-inducod Parkinson' s disease Defendants argue that general causation cannot be established because the medical and scientific communities do not generally accept the premise that exposure to manganese as contained in kiln fumes causes Parkinson's disease. When a claimant is alleging toxic cause, an expert must "reliably rule out reasonable alternative causes of [the alleged harm] or idiopathic causes" (Barbaro v Eastmap Kodak Companv I 26 Misc 3d 1124(A) [Sup Ct, Nassau County 20101). Here, plaintiff proffers the opinion of Rossol, who primarily relied on the Olmsted Report, which indicated elevated levels of lead, also a recognized neurotoxin, in the "complaint room" at 200 ug/ft2 and in the control "kitchen" at 5100 ug/ftz (Rossol Aff., ¶ 30). Rossol acknowledged the high levels of lead, but did not offer any explanation as to why plaintiff suffered from manganese exposure and not lead exposure, merely stating, "[wlhile the issue here is not l e a d exposure to [plaintiff], but rather that the presence of lead in relation to [* 12] Index No. 106645/05 Mtn Saq. No. 002 Page 11 of 20 manganese and all the other metals found were released by kilns" (Rossol Aff., ¶ 33). Also, Rossol did not consider prior levels of manganese in plaintiff's work space or the supplies used by other artists on the third floor. Additionally, Dr. King, familiar with medical, scientific and toxicological studies related to the "absorption, distribution, biotransformation (metabolism), and excretion of manganese compounds through inhalation and oral ingestion, as well as the mechanisms of manganese-induced neurotoxicity, and its ability to cause deleterious effects and damage to the brain and to the central nervous system" opined "based on a reasonable degree of toxicological and scientific certainty, the development of Plaintiff, Kathleen Gushue's signs and symptoms of parkinsQn ism are directly related to her exposure to manganese in fumes that were released from kilns located on the second floor in the building that she occupied on the third floor" (King Aff., ¶¶ 3, 7 [emphasis added] 1 . Although Dr. King referenced a litany of studies and literature in an effort to bolster his conclusion that plaintiff's exposure is related to manganese poisoning or manganese-induced Parkinsonism, he failed to l i n k manganese to plaintiff's claim of manganese-induced Parkinson's disease. Dr. Louis noted, "although there is literature stating that patients with manganese-induced parkinsonism do not have asymmetry, rest tremor, and response to levodopa, this literature is erroneous and in fact, there are many reports of patients with [* 13] Index No. 106645/05 Page 12 of 20 Mtn S e q . No. 002 manganese-induced Parkinson's disease who have the features Louis failed, however, to identify the erring literature and does not offer cases that share similarities to plaintiff's condition. Dr. Nausieda applied differential diagnosis to determine that plaintiff's condition was manganese-induced Parkinson's disease, ruling out idiopathic Parkinson's disease (mCornell v 3 6 0 West 5 l S t Street; Realtv LLC, et a l . , 95 AD3d 50, 61 [Ist Dept 20121) (differential diagnosis as an accepted scientific procedure so long as the agent considered to cause the injury is in fact capable of causing the alleged injury). Dr. Nausieda's medical and scientific opinion, however, is belied by plaintiff's alleged condition. Indeed, Dr. Nausieda conceded that there are "no reported cases of manganism caused by pottery kilns . . . in the medical literature," but still concluded based on the presence of manganese in pottery products and plaintiff's alleged exposure to manganese that plaintiff suffered from manganese-induced Parkinsonism (Nausieda A f f . , ¶¶ 10, 12 [ k ] [emphasis added]). While Dr. Nausieda cited literature finding a relationship between manganese exposure and Parkinsonism, the dispute before me stems from plaintiff's alleged exposure to excessive levels of manganese, resulting in manganese-induced Parkinson's disease, which is distinguishable from idiopathic Parkinson's disease. Despite similar symptoms, "manganese induced neurological disease" damages the globus pallidus and idiopathic Parkinson's- [* 14] Page 13 of Index No. 106645/05 20 Mtn S e q . No. 002 disease damages the pars compacta of the substantia nigra (Nausieda Affirm., ¶ 14). Dr. Nausieda stated: Clinical descriptions of manganese poisoning generally include Parkinsonian examination features b u t may include unique features such as abnormal postures (dystonias), and prominent psychiatric symptoms (manganese madness). In other cases the examination may mimic idiopathic Parkinson Disease to a degree which makes differentiation difficult. The presence of an action or antigravity tremor may suggest a diagnosis of manganese toxicity, as may the early appearance of behavioral changes and cognitive symptoms, but in many cases the occupational history and the age of onset may be the most important differentiating features. (Nausieda Affirm., ¶ 16). While Dr. Nausieda d e c l a r e d that "Manganese poisoning needs to be considered as a cause of Parkinsonism in patients with a recognized exposure history and any of the atypical features" he failed to conclude that plaintiff is in fact suffering from manganese-induced Parkinsonism or Manganism, but rather diagnoses plaintiff's condition as manganese-induced Parkinson's disease, a condition unsupported by his own affidavit or the record. Plaintiff also attempts to analogize the facts herein with a case where a male factory worker responsible for dumping fifty pound bags of manganese dioxide into a mixture five to six times a day in addition to sweeping his work area. unavailing. The attempt is The factory worker worked in two different ceramic factories for over thirteen years, both with poor ventilation systems. After being treated for manganese intoxication, the factory worker returned to work at the ceramic factory and [* 15] Index No. 106645/05 Page 14 of 20 M t n Seq. No. 002 remained asymptomatic. In contrast, a f t e r E N J relocated in 2004, plaintiff continued to be symptomatic. Furthermore, plaintiff's reliance on pending Multi-District Litigation, In Re Weldinu Fumes Froducts Liabilitv Litisation 2005 WL 1868046 (ND Ohio, J. O'Malley), to demonstrate that there is scientific or medical literature corroborating that fumes from pottery kilns contain numerous toxins, including manganese, and inhalation of manganese dust causes damage to the central nervous system exhibited by Parkinson's disease symptoms, is misplaced. In J n Re W e l d i w Fumes , the court found insufficient epidemiological evidence linking welding fumes to Parkinson's disease, b u t , nevertheless, identified enough "reliable" and "other known evidence" to support the assertion t h a t exposure to welding fumes can cause, contribute to, or accelerate a Parkinsonian syndrome which doctors will diagnose as Parkinson's disease (a). Furthermore, the Multi-District Litigation concerned manganese as it related to welding fumes and n o t manganese as contained in kiln fumes. Plaintiff argues that the absence of studies linking manganese as contained in kiln fumes to Parkinson's disease is not fatal to her claim because "the fact that there was no textual authority directly on point to support the expert's opinion is relevant only to the weight to be given the testimony but does not preclude its admissibility" (Zito v Zabarskv, 28 AD3d 42 [2d Dept 20061). Plaintiff maintains that her diagnosis [* 16] Index No. 106645/05 M t n Seq. No. 002 Page 15 of 20 is less relevant than the crucial question of what caused plaintiff to experience her symptoms. To challenge plaintiff, defendants point to their experts, specifically, Dr. Kieburtz who declared that "[nlo study has ever demonstrated a causal link between manganese exposure and Parkinson's disease, and I am not aware of a study exploring a potential association between manganese in kiln fumes and Parkinson's disease" (Kieburtz Aff,, ¶ 21) . Dr. Kieburtz noted that there were studies that explored the association between manganese and Parkinson's disease, that none of the studies studied kiln fumes, and that there is no statistically significant association between exposure to manganese and the onset of Parkinson's disease (Kieburtz Aff., ¶ 22). Notably, D r . Kieburtz acknowledged, "I am aware that it has been reported in the medical and scientific literature that exposure to manganese may cause a neurological syndrome as 'manganism' or 'manganeseinduced parkinsonism"' (Kieburtz Aff,, ¶ 33). Dr. Kieburtz, however, distinguished between 'manganism' and 'parkinsonism' as distinctly different from manganese-induced Parkinson's disease, which is plaintiff's alleged condition (Kieburtz Aff., ¶ 35). Dr. Obeso also stated that "[allthough many hundreds of environmental factors have been proposed as potential causes of Parkinson's disease, to date no cause has been established or accepted for this progressive, neurodegenerative disease" (Obeso Aff., 9 12). [* 17] Index No. 106645/05 Mtn S s q . No. 002 Page 16 of 20 Here, plaintiff has failed to raise a factual issue as to whether there is a nexus between manganese or manganese as contained in kiln fumes and Parkinson s disease (Frasex v Townhouse Corp. et al., 57 AD3d 416 [lst Dept 20081) (where plaintiff s expert evidence fell short because none of the medical literature supported their opinions that plaintiff s exposure caused his condition). In Fraser v 301-52 Townhouse G o r p . , 57 A D 3 d 416 [ls Dept 20081, the Appellate Division dismissed a complaint even though plaintiff established an association between symptoms and mold based on the rationale that plaintiff s expert conflat [ed] the distinct concepts of association a n d causation (Fraser at 418-419). Accordingly, the record l a c k s medical or scientific evidence that exposure to manganese as contained in kiln fumes causes manganese-induced Parkinson s disease. Indeed, absent from the record is any demonstration that peer reviewed articles or studies exist to suggest otherwise. (3) The amount of manganese p l a i n t i f f was exposed i a known t o c a u m rnanganese-induced Parkinson s disease Assuming arguendo that plaintiff were able to raise a factual issue with respect to general causation, plaintiff must still satisfy Parkex s third prong - specific causation. To satisfy the third prong, plaintiff must demonstrate that the level of manganese exposure caused her Parkinson s disease. Defendants argue that plaintiff cannot establish the necessary threshold dosage of concentration of manganese in pottery kiln [* 18] 0 Page 17 of Index No. 106645/05 Mtn Seq. No. 002 fumes that causes Parkinson s disease. 20 Defendants further assert that even if plaintiff were to demonstrate the threshold level of exposure, plaintiff cannot show that she was exposed to manganese at levels that exceeded the threshold. Plaintiff maintains that the Olmsted Report demonstrated that due to insufficient ventilation she was exposed to manganese in excessive amounts which accumulated from the E J N kilns located on the second floor below plaintiff s studio. In P a r k e r , the Court of Appeals held that so long as the methods used by an expert to establish causation are generally accepted in the scientific community quantifying exposure levels or providing dose-response relationships is not necessary if the expert is able to demonstrate sufficiently that plaintiff s exposure caused h e r condition (Parker, 7 NY3d at 446). In that regard, the Court upheld the Appellate Division s finding that despite citing studies demonstrating a link between benzene and AML, plaintiff s experts did not prove the causal connection between the exposure to benzene in gasoline ( d at I. 446). As a result, the Court reasoned that even if plaintiff s experts had established that he was exposed to the threshold level of benzene they could not show his exposure to exceed the threshold level and, therefore, any conclusion would be speculative (L). Here, based on the Olmsted Report, Dr. Nausieda concluded that plaintiff s exposure to manganese in her work space was abnormally high. Yet, Dr. Nausieda neither offers an accepted threshold level at which manganese exposure is toxic, nor does he [* 19] Page 18 of Index No. 106645/05 Mtn S e q . No. 002 identify a study to compare plaintiff s case. 20 Thus, without further substantiation the notion that plaintiff s exposure to manganese as contained in kiln fumes caused her manganese-induced Parkinson s disease is conclusory. Although Dr. Louis concluded that, it is highly likely that [plaintiff] was exposed to manganese containing fumes at her work place, he acknowledged in an April 7, 2005 letter that plaintiff s M R I was \\unremarkable, her PET scan was normal and her b l o o d manganese levels did not indicate any levels of toxicity (Louis Affirm., ¶ 7[e], Ex. 1). Indeed, absent from the record is a n y evidence suggesting either how much exposure to manganese will render plaintiff susceptible to toxic poisoning, or, alternatively, the extent of plaintiff s exposure to manganese (Coratti v. ThLWella Co rp., 56 AD3d 343, 344 [lst Dept 20081). Quite simply, given plaintiff s failure to provide quantifiable measures to show her exposure met or surpassed the necessary threshold, plaintiff has failed to raise a factual issue with regard to specific causation. Conclusion At oral argument, plaintiff s counsel stated: [It] [jlust befuddles me that if the term Parkinsonism had been used, it s an entirely different case. I mean, you know, it s a question of the constellation of symptoms. And they know what the issues are a n d they know what the injury is and they know what the exposure is. (Transcript, August 19, 2011, p . 3 4 ) . [* 20] v Page 19 of Index No. 106645/05 Mtn Seq. No. 002 20 Counsel s statement is an oversimplification of the pleading requirements and issues in this action. In so much that individuals suffering from manganism or manganese-induced Parkinsonism may exhibit features similar to those common to idiopathic Parkinson s disease, given that the record fails to demonstrate that plaintiff s diagnosis was manganism or manganese-induced Parkinsonism, or that any expert testimony established that manganese or manganese as contained in kiln fumes causes Parkinson s disease, plaintiff has failed to raise an issue of fact with respect to causation, general or specific. At oral argument, plaintiff s attorney inquired: So I (sic) this case going to come down to in the BP the termed it manganese-induced Parkinson s disease (sic) and they said it can t be, well if Parkinson s disease include the symptoms of Parkinsonism, then where is the harm? We have alleged the exposure, being manganese. We have alleged the injury. If w e had mistakenly called i t beriberi disease, does t h a t mean that they re not aware of the claim? (Tr., at p p . 19-20). Contrary to counsel s statement, individuals afflicted with Parkinsonism may not have Parkinson s disease. Thus, allegations must be precise because idiopathic Parkinson s disease, manganese-induced Parkinson s disease, Parkinsonism or manganeseinduced Parkinsonism are n o t mutually exclusive. Thus, plaintiff could allege Parkinsonism and suffer from Parkinson s disease, but to assert that s h e suffered from manganese-induced Parkinson s disease and also call her condition manganese-induced Parkinsonism is improper. The record is clear that manganism or [* 21] Page 20 of Index No. 106645/05 M t n S e q . No. 002 20 manganese-induced Parkinsonism and idiopathic Parkinson's disease are distinguishable because they have different causes, impac't different parts of the brain, and have different features. Accordingly, th'e Regal defendants' motion and defendant EJN's cross-motion for summary judgment dismissing the complaint are granted, and the action is hereby dismissed. ORDERED that the Regal defendants' motion and defendant EJN's cross-motion for summary judgment are granted, and the complaint is dismissed; a n d it is f u r t h e r ORDERED that the Clerk is directed to e n t e r judgment accordingly. This memorandum opinion constitutes t h e decision and o r d e r of t h e Court. HON. JEFFREY K, OIVG, J . S . C .

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