Published on:

Comprehensive Environmental Response…cont

This appeal concerns nine lawsuits brought against the City between 1991 and 1993 by residents of the Bronx neighborhoods closest to the landfill. Those neighborhoods include: Country Club, Pelham Bay, Spencer Estates, and City Island. In these actions, plaintiffs allege that extended exposure to hazardous substances emanating from the landfill caused the development of either acute lymphoid leukemia or Hodgkin’s disease. The actions were commenced separately, and subsequently consolidated for purposes of the City’s motion to dismiss. They include: (1) Nonnon v City of New York;2 (2) Simpson v City of New York;3 (3) Irizarry v City of New York;4 (4) Carollo v City of New York;5 (5) Walsh v City of New York;6 (6) Arisio v City of New York;7 (7) Parmigiano v City of New York;8 (8) Phillips v City of New York;9 and (9) Nessen v City of New York.10 There were 29 plaintiffs in the original nine actions. All claim that the City’s negligence in subjecting them to extended exposure to dangerous levels of carcinogens has proximately caused them personal injury and/or death.

The City moved to dismiss the claims of 1311 plaintiffs as time-barred, and it sought to dismiss all nine actions for failure to state a cause of action. It was the City’s position that plaintiffs failed to allege a viable causal connection between the city landfill and plaintiffs’ cancer. In support of the argument that all of the actions should be dismissed, the City submitted a 1988 study conducted by its Department of Health, specifically the Environmental Epidemiology Unit, within the Division of Community and Occupational Health. The study, entitled An Evaluation of Childhood Leukemia in the Pelham Bay Area of the Bronx, was prompted by residents’ concern that the Pelham Bay landfill may have caused elevated disease rates in the surrounding population. The study analyzed all types of leukemia in the Pelham Bay area, as reported to the New York State Cancer Registry from 1974 to 1985. That study concluded that there was no evidence of an increased incidence of childhood leukemia during this period as compared to the incidence rates of childhood leukemias in the rest of the city.

Also submitted by the City was a second Department of Health study conducted in 1994, and an addendum to that report dated 1996. The second study, which was based upon cancer cases reported to the State Department of Health Cancer Registry from 1978 to 1987, examined rates for all types of cancer combined and for 13 specific types of cancer in adults and three types of cancer in children. The City’s 1994 study found that for the diseases it studied in both adults and children in the Pelham Bay area cancer rates generally were consistent with such rates for the rest of the city.

The City also proffered an October 5, 1994 affidavit of Dr. Richard Neugebauer, an epidemiologist. Dr. Neugebauer had been retained by the City as an epidemiological consultant, to study the environmental effects that two landfills may have had on the citizens of Staten Island. In that affidavit, Dr. Neugebauer stated: the hypothesis that the scientific community is using is that toxic compounds released into the environment by the two Staten Island landfills have caused and are causing an increased rate of cancer and other illnesses among residents living in proximity thereto. This hypothesis is based on the personal injury evidence supplied by area residents, medical evidence from physicians treating these residents and by an extensive body of scientific information linking the chemical compounds in the dumps with harmful effects on human health.

The IAS court granted the City’s motion to dismiss certain of the claims as time-barred.16 Plaintiffs further conceded, and the court dismissed, the claims related to the DaBenigno sisters, for failure to establish a causal connection between their deaths and the landfill. However, the court determined that the complaint of Christopher Angelilli17 was not time-barred, and it denied the City’s motion to dismiss the claims of the remaining plaintiffs for lack of merit.

On appeal, the City argues that the scientific methodology employed by plaintiffs’ experts was insufficient to establish that plaintiffs’ cancer was caused by exposure to the landfill. In the alternative, the City seeks a remand for a Frye hearing. The City also claims that the IAS court erroneously failed to dismiss the claim of plaintiffs Angelilli, BW, JN, and MP as time-barred.
Plaintiffs counter that the scientific methodology employed by their experts is a generally accepted manner of establishing causation of diseases in the community, and that their submissions were sufficient to defeat the City’s motion to dismiss the action. Plaintiffs additionally assert that the City’s statute of limitations arguments should be rejected.

New York follows the rule set forth in Frye at the proponent of scientific evidence must establish that the theory and method used by a particular witness is generally accepted in the scientific community. In Frye, a criminal defendant sought to corroborate exculpatory statements with the results of a systolic blood pressure deception test, now commonly referred to as a polygraph or lie detector test. The District of Columbia Court of Appeals excluded the evidence, because the test had not gained general acceptance among the authorities in the fields of physiology and psychology. The court stated: just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or personal injury discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Thus, under the rule articulated in Frye, the proponent of “novel science” must establish its general acceptance among scientists within the pertinent discipline to justify its admission.
Since 1923, New York State courts18 have applied the Frye test in a variety of contexts for the important purpose of screening novel scientific evidence to determine whether it is experimental, and therefore inadmissable; or demonstrable, and therefore competent. Some cases have involved physical phenomena and measurements.

In this case, neither the deductions of the expert epidemiologists and toxicologists, nor the methodologies employed by them, in reaching their conclusions is premised on the type of novel science implicating the concerns articulated in Frye. For example, in Marsh v Smyth, this Court reversed a motion court’s Frye ruling. At issue was the testimony of two medical experts, who averred that plaintiff’s arm was improperly positioned during a surgical procedure, causing long thoracic nerve palsy. The motion court disallowed the testimony, finding that the experts’ conclusions were not accepted in the field. We reversed, holding that Frye is not concerned with the reliability of a certain expert’s conclusions, but instead with whether the experts’ deductions are based on principles that are sufficiently established to have gained general acceptance as reliable.

Citing Chief Judge Kaye’s concurrence in People v Wesley, the dissent faults the experts’ opinions for lacking a proper foundation. Wesley concerned DNA evidence, and in her concurrence, Chief Judge Kaye cautioned that the fact that the procedure for matching DNA, known as Restriction Fragment Length Polymorphic (RFLP) procedure, had gained scientific acceptance did not relieve the court from determining whether there was a proper foundation for the DNA results at issue by ascertaining whether the laboratory actually employed the accepted [RFLP] techniques.

Here, plaintiffs’ experts laid a proper foundation for the introduction of their opinions. They followed generally accepted methods for the collection and analysis of evidence and applied proper techniques to reach their conclusions. The dissent seeks to dismiss plaintiffs’ evidence by calling it fuzzy science at its worst, because these experts, according to the dissent, failed to measure plaintiffs’ level of exposure to the toxins in question. However, if the dissent had its way, nearly all plaintiffs suffering the ill effects, some lethal, of environmental contaminants would be barred from obtaining redress from those responsible. Here, Dr. Neugebauer, one of the expert epidemiologists, analyzed two studies performed by city experts, and he conducted his own study to determine whether there was an increased incidence of acute lymphoid leukemia in the area closest to the Pelham Bay landfill. While the City’s studies and Dr. Neugebauer’s study came to opposite conclusions, the methodology used in conducting the epidemiological studies was in strict conformity with the dictates of this field of science and the studies are properly admissible evidence.

To Be Cont…

Contact Information