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Frye v. United States…cont

This Court affirmed, rejecting the City’s argument that the scientific methodologies employed by plaintiffs’ experts were insufficient to establish that plaintiffs’ cancers were caused by exposure to substances emanating from the landfill.

After this Court granted leave to appeal, the Court of Appeals affirmed on the ground that the City’s motion had never been converted to one for summary judgment and plaintiffs, therefore, were not put on notice of their obligation to make a complete record and to come forward with any evidence that could possibly be considered. Noting that plaintiffs suggest that due to the equivocal procedural posture of this case, they have not had the opportunity to submit all of their evidence relevant to a determination of causation, the Court of Appeals held that the City is not now entitled to dismissal of plaintiffs’ complaints for failure to state a cause of action.

On or about October 12, 2007, the City filed a motion for summary judgment.2 Among other things, the City relied on a July 21, 2000 Department of Health Public Health Assessment and a June 1, 1993 Woodward–Clyde Baseline Risk Assessment pertaining to the landfill. The 2000 report discussed potential contaminant exposure pathways and the results of two epidemiological studies conducted by DOH’s Environmental Epidemiology Unit, a 1988 study of childhood leukemia and a 1994 DOH cancer incidence study. The 1988 study, a statistical comparison of the incidence of childhood leukemia among children in Bronx districts 4 and 6 during the period from 1974 through 1985, as compared to New York City as a whole, found “scant evidence” of an increased incidence of childhood leukemia in the community adjacent to the landfill. The 1994 DOH study contained the following statistically elevated findings: the annual incidence of lung cancer in women; the cumulative incidence of colon cancer and leukemias in men; and the cumulative incidence of kidney cancer among residents living closer to the cancer than further away. The authors of the study determined, however, that these personal injury findings did not present a pattern consistent with potential exposures from the landfill. While acknowledging that “one of the most well documented chemical exposures associated with leukemia is benzene, the authors concluded that there was no evidence of cancer patterns consistent with exposure to the landfill, and that exposure levels were likely too low to result in a detectable increase in cancer rates.

The 1993 Woodward–Clyde report discussed exposure pathways and noted that for area residents, both adults and children, the potential carcinogenic risks posed by inhalation of volatile organic compounds (VOCs) were below the risk level considered negligible by the Environmental Protection Agency (EPA) in setting cleanup goals under Superfund. The potential carcinogenic risks posed by incidental ingestion and dermal absorption from landfill soils were elevated for both workers and youth trespassers, but within the acceptable risk levels used by the EPA in setting Superfund cleanup goals.

The City relied on the affidavit of Dr. Kara Kelly, M.D., a pediatric oncologist, who concluded that no known medical or scientific basis exists for plaintiffs’ claim that exposure to chemicals in the Pelham Bay Landfill, assuming such exposure occurred, caused them to develop ALL.

The City also relied on a new affidavit from its expert Dr. Jonathan Borak, M.D., who opined that no causal link between proximity to the landfill and plaintiffs’ cancers could be scientifically established. Dr. Borak claimed, based on a review of the scientific literature, that there is no credible evidence linking childhood ALL to any specific chemical.

Plaintiffs, in opposition, relied on the evidence contained in the prior record on appeal discussed extensively in this Court’s opinion in Nonnon I, as well as new affidavits from experts Dr. Neugebauer, Dr. Trainor and Dr. Landzkowsky, and the injury affidavit of a new expert, toxicologist and biostatistician Dr. Bruce K. Bernard.

Dr. Richard Neugebauer, an epidemiologist, opined that persons residing in close proximity to the landfill experienced higher incidence rates of acute lymphoblastic leukemia as compared with persons residing further away from the landfill, and concluded that the landfill is, more likely than not, a cause of the increased rates of childhood leukemia among area residents.

Dr. Neugebauer’s medical study defined four rings, or bands, located 8,000, 12,000, 16,000 and 20,000 feet, respectively, from the landfill center. He obtained, from the cancer registry, the age, gender and race breakdown in each of the census tracts. To evaluate whether ALL incidence was elevated as a result of proximity to the landfill, Dr. Neugebauer calculated childhood ALL rates in each of the rings. Using indirect standardization to adjust for age, gender, race and location of the population north or south of the landfill (all possible confounding variables), Dr. Neugebauer compared the rates of ALL in each of the three bands closer to the landfill with the rate in the band furthest away, Band 4.5

When these adjustments were made, the rate of childhood ALL in Band 1 was more than fourfold higher and statistically significantly greater, with a standardized morbidity ratio (SMR) of 4.05, than the rate among persons in Band 4. The rate of childhood ALL among persons in Band 2 was similarly substantially and statistically significantly elevated, with an SMR of 5.2, as compared to persons in Band 4. Dr. Neugebauer noted that the probability that this pattern of increases in rates with increasing proximity to the landfill arose from random medical malpractice error was 1 in 10,000.6

Dr. Neugebauer opined that in this case proximity analysis was the optimal design, with distance from the landfill a proxy for the measure of exposure. Dr. Neugebauer noted that numerous epidemiological studies had investigated a possible disease excess around a point source of contamination by drawing concentric rings at increasing radial distance from the source and by obtaining data on the number of cancer cases per ring. Dr. Neugebauer stated that the superiority of this type of proximity analysis was well-established. If the test for a linear trend was statistically significant, the proper conclusion is that a dose-response relationship exists.

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