Published on:

Frye v. United States…cont

Upon analysis of Hill’s nine factors, Dr. Bernard concluded, with a reasonable degree of toxicological certainty, that it was more likely than not that exposure to chemicals emanating from the landfill was the cause of the increased frequency of childhood ALL observed in the plaintiffs.

Dr. Diane Trainor, Ph.D., an occupational and health and safety expert, studied the history of the landfill and analyzed possible exposure pathways. Dr. Trainor noted that it could not seriously be disputed that known toxic substances, long associated with ALL and Hodgkin’s disease, had made their way into the air, ground and water, and that plaintiffs had been exposed to these substances through swimming in Eastchester Bay, eating fish from the bay, ingestion and dermal contact with landfill soils, contact with leachate seeps on sidewalks and jogging trails, eating items grown at a public vegetable garden adjacent to the landfill, and breathing the air in the vicinity of the landfill.

Finally, Dr. Philip Landzkowsky, M.D., opined that numerous studies had found a statistically significant relationship between exposure to benzene and ALL or Hodgkin’s disease, and cited literature finding a relationship between chronic benzene exposure and leukemia injury.

The motion court denied the City’s motions for summary judgment in all nine actions, stating that in the instant motion, the City raises no new facts or law to warrant a departure from the prior holding of the Appellate Division, First Department in NonnonI. We agree.

The Frye test is not concerned with the reliability of a particular expert’s conclusions, but rather, with whether the expert’s deductions are based on principles that are sufficiently established to have gained general acceptance as reliable. General acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion, but that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in reaching their conclusions.

As we observed in Nonnon I, epidemiology and toxicology are hardly novel sciences, but rather, well-established and accepted methodologies. In such a case, the focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial.

An expert opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (i.e., general causation), and that the plaintiff was exposed to levels of the toxin sufficient to cause illness (i.e., specific causation). Here, plaintiffs have submitted sufficient evidence, in opposition to the motion for summary judgment, to raise triable issues of fact as to whether exposure to toxins emanating from the landfill caused plaintiffs’ ALL personal injury.

Epidemiology is the study of disease patterns in human populations. It uses studies to observe the effect of exposure to a single factor upon the incidence of disease in two otherwise identical populations, seeking to associate unusual patterns of disease with environmental or biological risk factors. Epidemiological studies do not provide direct evidence of causation in the sense of proving a particular plaintiff was injury by a particular substance; however, they provide compelling circumstantial evidence of cause-and-effect by demonstrating that exposure to a particular substance increases the incidence of disease in a given population.

Epidemiological studies attempt to disprove the null hypothesis, i.e., the notion that there is no association between two studied variables (in this case benzene and childhood ALL), and to prove the alternative hypothesis, i.e., that the association between two studied variables is indicative of a cause-and-effect relationship. The epidemiologist attempts to ascertain, for a given risk factor, how much that factor will increase an individual’s probability of contracting the disease. This magnitude is expressed in terms of “relative risk,” the ratio of the number of occurrences of the disease in an exposed cohort to the number of occurrences in an unexposed one. If a given factor does not affect the rate of disease, its relative risk would be 1.0; if a given factor doubled an individual’s chances of contracting disease, relative risk would be expressed as 2.0. Epidemiological evidence is critical in toxic tort cases to establish a causal relationship between a chemical substance and a set of medical symptoms or a disease.

Contact Information