Cohen v American Biltrite Inc.

[*1] Cohen v American Biltrite Inc. 2018 NY Slip Op 28420 Decided on August 23, 2018 Supreme Court, New York County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on August 23, 2018
Supreme Court, New York County

Steven Andrew Cohen, Individually and as Personal Representative of the Estate of Sandra Florence Cohen, Deceased, Plaintiffs,

against

American Biltrite Inc., et al., Defendants.



190044/2016



For Plaintiff:

Leah C. Kagan Esq. and Joseph Mandia Esq.

Simon Greenstone Panatier, P.C.

750 3rd Avenue, New York, NY 10017

For Defendant Colgate-Palmolive Company:

Adam Abensohn Esq.

Quinn Emanuel Urquhart & Sullivan, LLP

51 Madison Avenue, New York, NY 10010

Erik C. DiMarco Esq.

Gordon & Rees Scully Mansukhani LLP

1 Battery Park Plaza, New York, NY 10004
Lucy Billings, J.

Defendant Colgate-Palmolive Company moves to preclude the testimony at trial of plaintiff's expert environmental health scientist and microscopist, James Webber Ph.D. Contrary to defendant's suggestion, plaintiff does not offer Dr. Webber to testify regarding the effects of nonasbestiform cleavage fragments or causation of the decedent Sandra Cohen's mesothelioma, other than the respirability of asbestos fibers, which is within his expertise.

The admissibility of Dr. Webber's opinions regarding communications between the Cosmetics, Toiletries, and Fragrances Association (CTFA) and the United States Food and Drug Administration (FDA) depends on the admissibility of those communications and whether they are susceptible of expert interpretation, States v. Lourdes Hosp., 100 NY2d 208, 212-13 (2003); Styles v. General Motors Corp., 20 AD3d 338, 340 (1st Dep't 2005), rather than simply the jurors' own lay interpretation without expert assistance. People v. Clyde, 18 NY3d 145, 154 (2011); People v. Santi, 3 NY3d 234, 246-47 (2004). His expertise may allow him to testify whether, for example, the CTFA proposed and the FDA adopted, due to the absence of accurate or necessary data, a method to test for asbestos content that was insufficiently stringent or reliable. He may not testify regarding either entity's reasoning or motivations, of which he has no personal knowledge, although they may be expressed in the communications themselves. The relevance and hence the admissibility of the communications may depend in part on whether [*2]defendant participated in the CTFA's interactions with the FDA.

These issues, however, are not questions whether Dr. Webber's opinions are based on scientific principles or procedures that are not accepted in his fields of environmental health, epidemiology, toxicology, or microscopy. People v. Wesley, 83 NY2d 417, 427-28 (1994); Carniol v. New York City Taxi & Limousine Commn., 126 AD3d 409, 410-11 (1st Dep't 2013); Marsh v. Smyth, 12 AD3d 307, 307-308 (1st Dep't 2004). See Sean R. v. BMW of N. Am., LLC, 26 NY3d 801, 809-10 (2016); Marso v. Novak, 42 AD3d 377, 378 (1st Dep't 2007); Styles v. General Motors Corp., 20 AD3d at 339-40; Lara v. New York City Health & Hosps. Corp., 305 AD2d 106, 106 (1st Dep't 2003). Therefore no hearing is necessary to determine whether to preclude his opinions on this basis. Insofar as Dr. Webber has given testimony contrary to what he offers here, defendant may use that testimony, if admissible for impeachment, for that purpose.

Insofar as plaintiff offers Dr. Webber to testify regarding the applicability of any law or what the law allows or requires, the court precludes any such opinion. Morris v. Pavarini Constr., 9 NY3d 47, 51 (2007); Bucholz v. Trump 767 Fifth Ave., 5 NY3d 1, 7 (2005); Lopez v. Chan, 102 AD3d 625, 626 (1st Dep't 2013); McCoy v. Metropolitan Transp. Auth., 53 AD3d 457, 459 (1st Dep't 2008). It is the task of plaintiff's attorney to advocate and the court's task to determine what laws apply and what they require or allow. The court otherwise denies defendant Colgate-Palmolive Company's motion to preclude Dr. Webber's testimony, without prejudice to defendant's objections at trial.

DATED: August 23, 2018

LUCY BILLINGS, J.S.C.