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Frye v. United States…cont

Furthermore, and critically, in this case, the strength of the epidemiological data alone permits an inference of causation. The Federal Reference Manual on Scientific Evidence notes that courts have permitted an inference of specific causation where the relative risk in an epidemiological study is greater than 2.0. When the relative risk reaches 2.0, an agent is responsible for an equal number of cases of disease as all other background causes. Thus, a relative risk of 2.0 implies a 50% likelihood that an exposed individual’s disease was caused by the agent and permis the inference that [the] individual plaintiff’s disease was more likely than not caused by the substance at issue.

In this case, the relative risks in Bands 1 and 2 were 4.05 and 5.2, respectively, when adjusted for confounding factors, well in excess of 2.0. Thus, according to the Federal Reference Manual, at least as to those plaintiffs suffering from ALL,10 the strength of the relative risk alone is a sufficient basis for a reasonable juror to conclude that the plaintiffs’ illnesses were more likely than not caused by exposure to hazardous substances emanating from the landfill.
The City’s criticisms of Dr. Neugebauer’s study go to the weight of the evidence, not its admissibility. As the Court of Appeals stated in People v. Wesley, possible personal injury infirmities in the analysis of the data, including the methods used to test statistical significance, go to the weight the evidence is to be accorded at trial.

While the strength of the epidemiological evidence, alone, is sufficient for plaintiffs to establish that substances emanating from the landfill are more likely than not the cause of childhood ALL, those plaintiffs suffering from Hodgkin’s disease put forth no similar evidence. Thus, we are constrained to dismiss the claims of plaintiffs Nessen and Walsh.

Plaintiffs, residents of the neighborhoods surrounding the landfill, were exposed to toxins, including benzene, over a number of years, via air emissions and contact with contaminated soil and/or contaminated surface and ground waters. Each of the plaintiffs lived in close proximity to the landfill. They played in a park adjacent to the landfill, swam and fished in Pelham Bay, and ate locally grown vegetables. It is undisputed that over a period of several decades, known carcinogens were disposed of at the landfill. The presence of these carcinogens, including benzene, as well as their concentration levels in the air, soil and surface and ground waters, is well documented. Indeed, the City admitted in various consent decrees that it had allowed leachate to enter surface and ground waters, and that the surface and ground waters had been polluted by these contaminants.

We recognize that in toxic tort cases it is always difficult to prove specific causation. But as plaintiff’s expert toxicologist noted, this is a standard problem in environmental exposure cases. The Court of Appeals in Parker acknowledged this difficulty, specifically holding that it is not always necessary for a medical plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that his or her expert uses acceptable alternative methods to estimate exposure to a toxin. Plaintiffs suffering from.

ALL have sufficiently demonstrated, through epidemiological and toxicological data, a connection between the landfill and their present illnesses, and are entitled to a trial on their claims that exposure to substances emanating from the landfill was the cause of their cancers.
Accordingly, the orders, Supreme Court, Bronx County, entered on or about April 26, 2010 and April 27, 2010, which, respectively, denied defendant City of New York’s motions for summary judgment dismissing the medical malpractice complaints of the Nessen and Walsh plaintiffs, should be reversed, on the law, without costs, the motions granted and the complaints dismissed. The Clerk is directed to enter judgment accordingly. The orders of the Supreme Court, entered on or about June 18, 2009, April 26, 2010, and April 27, 2010, which denied defendant’s motions for summary judgment dismissing the complaints of the plaintiffs other than the Nessen and Walsh plaintiffs, should be affirmed, without costs. Orders, Supreme Court, Bronx County, entered on or about April 26, 2010 and April 27, 2010, reversed, on the law, without costs, the motions for summary judgment granted and the complaints dismissed. The Clerk is directed to enter judgment accordingly. Orders, same court and Justice, entered on or about June 18, 2009, April 26, 2010, April 27, 2010, and April 29, 2010, affirmed, without costs.

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