Frye Decision in BMW Case Results in Exclusion of Plaintiff’s Experts

In a thoughtful decision handed down in Reeps v. BMW of North America, LLC, 2012 N.Y. Slip Op. 33030(u), on December 16, 2012 in New York County Supreme Court, the Hon. Louis B. York excluded the expert testimony of plaintiff’s two key causation experts in a toxic tort case where plaintiff alleged that a child’s birth defects were attributable to the mother’s in utero exposure to gasoline vapors.

In an earlier article on this blog about the same case, we examined the decision by the First Department, on an interlocutory appeal, which determined that: (1) defendants had failed to demonstrate that the infant’s parents disposed of their BMW with knowledge of its potential evidentiary value; and (2) that plaintiff’s claims against the BMW dealer, sounding in product liability and breach of implied and express warranty, should be dismissed because the dealer was a service provider, not a product seller.

 In that article, we also discussed plaintiff’s burden in having to prove general causation at trial, that is, whether exposure to chemical components in gasoline fumes have been associated in the scientific literature with cerebral palsy and the other abnormalities alleged. We discussed that if plaintiff is able to prove general causation, she will then have to prove specific causation, that is, whether the dose and duration of exposure to the purported teratogen was sufficient to cause the specific birth defect.

 In a Frye decision (tantamount to a dismissal), Judge York analyzed plaintiff’s expert disclosures made pursuant to CPLR 3101(d) for Shira Kramer, Ph.D., and Linda Frazier, M.D., M.P.H. Both experts submitted detailed reports. In support of its Frye motion, BMW submitted affidavits by its own experts, Anthony Scialli, M.D. and Peter Lees, Ph.D. Dr. Scialli is an OB-GYN and reproductive toxicologist. Dr. Lees is a specialist in industrial hygiene and environmental health science. The experts on both sides of the dispute were highly credentialed with impressive CV’s.

The timeline of events leading up to the filing of the case is as follows:

1991-In March and again in November, the Reeps bring their 1989 BMW 525i to Hassel Motors, a licensed BMW dealer, to fix an exhaust odor inside the car. Dealer fails to identiify an exhaust odor in March, but later identifies problem as a split fuel hose and repairs it under warranty.

1992-In May, Sean Reeps is born with birth defects, including cerebral palsy, which plaintiffs attribute to Debra Reep’s inhalation of gas fumes early in her pregnancy.

1994-BMW recalls BMW525i vehicles due to a safety defect that caused odor due to feed fuel hose.

Plaintiff’s experts attributed the child’s birth defects to gasoline vapors his mother inhaled during the first trimester of her pregnancy while driving her BMW. Dr. Kramer offered the opinion that gasoline vapors and specific chemical constituents of gasoline, such as toluene and other solvents, are casually related to an elevated risk of birth defects among children exposed to these chemicals in utero. Dr. Kramer applied a “weight-of-evidence” assessment of the association between exposure to gasoline vapors, and the chemical constituents of gasoline vapors, and an increased risk of birth defects and other adverse birth outcomes. She based her assessment on the epidemiological, medical and toxicological literature.

For her part, Dr. Linda Frazier opined that the mother was exposed to developmental hazards due to substances and compounds found in gasoline vapors, which included toxic substances capable of severely damaging a developing fetus during the first trimester. She was able to determine that the exposure levels by the mother to gasoline were high, based upon her reported symptoms of headache, nausea and irritation of the throat. Studies have found that these symptoms occur at gasoline vapor concentrations of at least 1,000 ppm.

 As noted by the Court, Dr. Scialli concluded that no scientific publication has ever established a causal relationship between the inhalation of gasoline during pregnancy and the birth defects diagnosed in Sean Reeps. Further, he criticized Dr. Kramer’s reliance on two human case report articles suggesting an association between leaded gasoline and birth defects for lack of “specificity.” The adverse outcomes in those studies were different from those in Sean Reeps’ case. Other studies cited by plaintiff’s experts discuss the effects of gasoline’s ingredients (such as toluene, ethylbenzene, zylene and benzene) on reproductive and developmental outcomes. However, taken together, these components account for no more than 2% gasoline vapors. To have inhaled a significant amount of these gasoline components would have had fatal consequences for the mother.

Finally, Dr. Scialli asserted that plaintiff’s experts failed to consider causes other than gasoline vapor inhalation for the developmental delays diagnosed in Sean Reeps. For example, intrauterine infection is among the most common causes of cerebral palsy. Mrs. Reeps had a history of herpes simplex infection and a rash during her pregnancy.

 In ruling on the motion, the Court made several significant holdings, which defense lawyers should find useful. My observations about  some of the notable points in Judge York’s decision are as follows:

1. Plaintiff contended that a motion for a Frye hearing should be precluded by the procedural posture of the case. Plaintiff pointed out that defendant had already made and lost a summary judgment motion. In response, the Court determined that a Frye hearing is evidentiary, separate from dispositive motions, and can be held prior or during the trial. Thus, the Court found it appropriate, at this juncture in the case, to consider a Frye challenge. Although trial courts may apply different procedural rules, it may be not always be necessary for the defendant to mount  Frye challenge as part of a dispositive motion;

2. Under Frye, it is not sufficient to merely utilize accepted methodology in reaching an opinion. Rather, it is necessary that the accepted technologies be properly performed and generate results accepted as reliable within the scientific community.  Plaintiff’s experts, Judge York determined, were merely playing lip service to accepted methodology “while pursuing a completely different enterprise”. Thus, the court should explore not just whether plaintiff’s expert cites to an accepted methodology, but whether than methodology was properly applied by the expert in reaching a causation opinion;

3. Plaintiff’s failure to submit affidavits from their experts in opposing defendant’s motion proved fatal in hindsight. In bringing a Daubert or a Frye motion, or in responding to a Daubert or a Frye motion, it is generally sound practice to submit an expert affidavit on behalf of the challenged expert to either explain, or to bolster, the expert’s opinion. Here, defendant’s motion provided plaintiff a roadmap report to the purported weaknesses in the experts’ arguments. Affidavits responding to the criticism of their reports could only have helped their cause.

4. Judge York drew an analogy to a deficiency in Dr. Kramer’s expert report to the expert report in the landmark Court of Appeals case, Parker v. Mobil Oil Corp. In Parker, plaintiff’s expert concentrated on the relationship between benzene and the risk of developing AML – an association that was not in dispute. Key to the Parker litigation, however, was the relationship, if any, between gasoline containing exposure as a component and AML

In the instant case, the Court found that Dr. Kramer was essentially mixing apples and oranges in attempting to extrapolate from the studies concerning gasoline components to gasoline itself.  Parker remains the touchstone in New York toxic tort jurisprudence.

5. According to the decision, Dr. Kramer’s conclusion on general causation was inadequate because Dr. Kramer failed to state unambiguously that exposure to gasoline vapors during early gestation is causally related to the specific conditions diagnosed in the infant plaintiff specifically.

6. Dr. Kramer failed to meet the Parker v. Mobil Oil Corp. requirement that the expert assess the threshold level at which maternal exposure to gasoline vapors is capable of producing adverse effects generally, or in the case at bar, specifically. Citing Parker, Judge York held that “the threshold level of exposure is an element of general causation.”

 7. The expert’s statement that there is an “association” between a specific chemical and an adverse birth outcome is not sufficient to establish “causation.” Citing the Appellate Division’s decision in Fraser v. 301-52 Townhouse Corp,  the Court held that “association” is not equivalent to “causation.”  Words matter–how the expert characterizes her opinion is important.

Reflecting the importance that New York state courts need to give to proof of both "general" and "specific" causation, the Court summarized its view as follows:

 “Dr. Kramer’s and Dr. Frazier’s opinions do not comport with methodologies prevailing in the epidemiological and toxicological scientific communities and on occasion depart from generally accepted rules of drawing conclusions from premises. They provide insufficient support for the conclusion that exposure to gasoline in some unidentified concentration in the first trimester of pregnancy can cause cerebral palsy, microcephaly or any other condition found in Sean Reeps (general causation), or that such exposure actually led to his illness (specific causation).

 In words that any defendant’s trial counsel would want to hear, the Court held,
“The Frye’s ‘general acceptance’ test is intended to protect juries from being misled by expert opinions that may be couched in formidable scientific terminology but that are based on fanciful theories.”

The Court found that conducting a separate Frye hearing would be “redundant” considering that plaintiff’s extensive reports fully presented their arguments.

 It is likely that this decision will be appealed given what is at stake. Stay tuned.

 

Koch Rattles Wine Auction World: GBL § 350 “Game Changer”

To successfully assert a claim under New York General Business Law § 349 (h) or § 350, "a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice" 

A claim is brought under GBL § 349 to allege misleading and deceptive trade practices and under GBL § 350 to allege false advertising.  Typically, these two sections are pled in tandem, both in single plaintiff cases and in class action litigation seeking relief from consumer fraud. 

In their NYLJ article (12/28/12) looking back at the significant New York State class action decisions that were handed down during 2012, authors Thomas A. Dickerson, Jeffrey A. Cohen (both Second Department judges) and Kenneth A. Manning devote special attention to the Court of Appeals decision in Koch v. Acker, Merrall & Condit, in which the court clarified that justifiable reliance is not an element of a GBL § 350 claim. Prior decisions had already done away with any reliance requirement on a GBL § 349 claim

The element of reliance had always seeming been an important defense weapon in deceptive trade practice class action litigation. In Koch, plaintiff alleged that the auction house described its wines as "extraordinary, " "absolutely stunning," and among the "greatest wines…ever experienced"  when, in fact, these wines were undeniably nothing of the kind. But the First Department made short shrift of plaintiff’s claims.  The court gave considerable deference to the disclaimer language in the auction house’s brochure which provided an "as is" disclaimer.

In addition to the "as is" caveat, the "Conditions of Sale/Purchaser’s Agreement" made "no express or implied representation, warranty, or guarantee regarding the origin, physical condition, quality, rarity, authenticity, value or estimated value" of the wine.  Should not a  reasonable consumer, the appellate court reasoned, been alerted by these disclaimers, would not have relied, and thus would not have been misled, by defendant’s alleged misrepresentations concerning the vintage and provenance of the wine it sells?  In this instance, according to Decanter.com, the plaintiff was Florida billionaire, William "Bill" Koch, who apparently believed that the auction house had sold him the proverbial "bill of goods".  If anyone was to read and understand the "fine print" in the disclaimer, surely a sophisticated investor like Mr. Koch would.

In answer, the  Court of Appeals held that the "as is" provision does not bar the claim (at least at the pleading stage) and does not establish a defense as a matter of law. 

As Messrs. Dickerson and  Cohen explained in an earlier NYLJ article (4/19/12), the Koch ruling may be a "game changer" in deceptive and misleading business practices class action litigation.  They cite a long series of prior appellate cases, which had established reliance as a basis for obtaining a recovery under GBL § 350, which clearly is no longer good law. In the past, New York courts were reluctant to certify GBL § 350 claims because they found that reliance was not subject to class wide proof. 

When the Appellate Division issued its decision, wine industry attorney Brian Pedigo in Irvine California expressed concern to Decanter.com that it would set bad precedent if all prospective bidders had to satisfy themselves by inspection rather than to trust in the auction house’s represenations.  In pertinent part, he commented, "A regular Joe consumer is not going to fly overseas [or across the country] to inspect wine. A reasonable consumer will rely on the representation of the seller, and will not read or understand the fine print disclaimers".  An adverse decision for the auction house, he believed, would be "horrible for consumer trust in the online auction environment; it could possibly destroy this niche market sector".  Would  internet commerce be adversely affected if the e-consumer was not able to trust the e-seller?

The Court of Appeals apparently agreed with Mr. Pedigo that the risk of authenticity should not entirely shift to the consumer, regardless of whether the consumer is Joe consumer or Bill Koch. 

The claim against Acker Merrall is not Mr. Koch’s only wine-related lawsuit.  He previously brought a RICO claim against Christie’s, another auction house, after purchasing four bottles of wine that he believed were connected to Thomas Jefferson, but turned out were not really that old.  That Koch wine auction case ended up in the Second Circuit; but that’s a story for another time. 

At the end of the day, Koch serves to harmonize GBL § 349 and GBL § 350; there is no reliance pleading requirement under either statute. 

However, all is far from lost for the defendants in these cases.  As discussed at the outset of this article, plaintiffs must prove  (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice".  Accordingly, although reliance need not be shown, the plaintiff must still prove causation.  Proof of causation remains plaintiff’s critical hurdle in succeeding in these claims.  

Defense Lawyers: Keep This Decision In Your Back Hip Pocket

Having now completed discovery, you have provided the client with a thorough assessment of its potential liability exposure in the case. You are set for trial.

On the eve of trial, plaintiff’s counsel serves notice that it plans to call four eyewitnesses and an expert, and introduce 18 photos and a video, none of which were provided pursuant to your earlier discovery demand or a subsequent Preliminary Conference Order. As any trial lawyer like criminal lawyers Melbourne who practices in the Second Department can attest, this is not an unfamiliar scenario. But what is exasperating is the trial judge’s denial of defendant’s motion to preclude the untimely evidence from coming in at trial and effectively places the court’s imprimatur on plaintiff’s bad behavior, and assault, so it was important to get the right lawyer for this, and there are easy to find at sites like www.denvercocriminaldefenselawyer.com/assault/.

Given the widespread tendency by some Second Department trial judges to “cut  slack” for those who repeatedly flaunt the court’s rules regarding timely disclosure, it was refreshing to review the decision of the Appellate Division, Second Department, in Arpino v. F.J.F. & Sons Electric, 2012 NY Slip Op 08271, 201-02636 (12/5/12) which held a Long Island law firm responsible for its “intentionally false and misleading” responses to discovery demands, which the Court held could not be cured by belated disclosure.

In the interest of full disclosure, it was the defendant who committed the wrongful conduct in Aprino, not the plaintiff. However, because this is a “defense blog”, we will discuss the importance of the Court’s holding from a defense perspective. Needless to say, the conduct at issue is reprehensible and sanctionable no matter which side commits it.

As reported by the New York Law Journal on December 6, 2012, the Second Department cited Court of Appeals case law to the basis for its ruling.  The Court stated:  “As the Court of Appeals has noted, the failure of attorneys to comply with court-ordered deadlines has increasingly become a problem in our court system.”  Further, the appellate panel stressed that the Court of Appeals had previously found  that “chronic and incompliance with deadlines breeds disrespect to the dictates of Civil Practice Law and Rules” and stressed that court orders cannot be ignored with impunity. On the strength of these admonitions from the the state’s highest court, the Second Department ruled that Suffolk County Supreme Court Justice Paul Baisley, Jr. had improvidently exercised his discretion in declining to sanction the defendant’s law firm from professionals at sites like https://www.stoneinjurylawyers.com.

The underlying facts of this auto accident case are fairly straight forward.  In June 2008, the defendants’ Ford Explorer collided with the plaintiff motorcyclist, who alleges that he sustained serious injuries in the accident.  Shortly after commencing an action against the Ford Explorer’s driver and his employer, plaintiff served a discovery demand seeking production of information and accident photos. Thereafter, this discovery was further directed in a Preliminary Conference Order. After missing the deadline for disclosure, a paralegal at the defendants’ firm advised by letter that defendants neither processed photos nor were aware of additional witnesses. This turned out to false.

In its decision, the Second Department rejected the defendant law firm’s claim that it was merely careless. To the contrary, it held that the firm’s responses were “intentionally false and misleading, and were interposed for the purpose of avoiding the defendants’ obligation to provide timely and meaningful discovery responses. The defendants neglected a court-ordered deadline and misrepresentation of the knowledge of possession of clearly discoverable material and information, without providing any excuse for doing so must be deemed willful and contumacious.”

Significantly, the Second Department held that the failure to comply with “basic rules governing compliance with disclosure orders cannot and will not be tolerated in our courts.” Unfortunately, all too often, trial courts not only tolerate and excuse this behavior to the extent that it has become almost accepted practice to “hide the ball” until immediately prior to trial. As a result of limitations placed on the defendants by the appellate court’s modification of the trial court’s order, substantial prejudice to plaintiff was prevented and appropriate sanctions imposed.

It is worth noting that plaintiff’s counsel was diligent in pursuing discovery throughout.  This is not a case where plaintiff arguably could have been more diligent in pursuing disclosure.

Therefore, printout a copy of Aprino, slip it into your back hip pocket, and pull it out in court the next time you find yourself in this situation.

Plaintiff’s Failure To Disclose Expert Prior To Summary Judgment Proves Fatal

In Akron Scott v. Westmore Fuel Company, Inc. (6/14/12), the Appellate Division, First Department, examined the timing of plaintiff’s tardy expert disclosure. In that case, plaintiff disclosed his expert for the first time when he submitted an affidavit of the expert in opposition to a motion for summary judgment. The First Department held that the New York County trial court properly rejected the expert affidavit as inadmissible because plaintiff had failed to disclose his expert until after the Note of Issue and Certificate of Readiness had been filed. The First Department also found that the trial court had properly denied plaintiff’s request to amend the Bill of Particulars to allege a statutory violation by the defendant because the request to amend was made after the Note of Issue was filed and was thus prejudicial.

In Construction by Singletree, Inc. v. Lowe, (2008 NY Slip Op. 5698 08287), 55 A.D.3d 861 (2d Dep’t 2008), the Second Department reached a similar result. In Singletree, the Second Department held that the trial court “did not improvidently exercise its discretion in declining to consider the affidavits of the purported experts proferred by Lowe since Lowe failed to identify the experts in pretrial disclosure and served the affidavits after the Note of Issue and Certificate of Readiness attesting to the completion of discovery were filed in this action.” The Second Department rejected the position of the dissent, which argued that CPLR 3101(d)(1)(i) applied only to an expert whom a party intends to call at trial and that the trial court should have considered an undisclosed expert opinion submitted in opposition to a motion for summary judgment. In rejecting the dissenting view, the Second Department held:

"As it is undisputed that Lowe failed to identify any experts in pretrial disclosure whom he intended to call to testify at trial concerning whether the work was faulty or the extent of his alleged compensatory damages arising from that breach of warranty, and did not proffer any explanation for such failure, it was not an improvident exercise of discretion for the Supreme Court to have determined that the specific expert opinions set forth in the affidavits submitted in opposition to the motion for summary judgment could not be considered at trial. That circumstance, coupled with Lowe’s failure to demonstrate how the facts set forth in the experts’ affidavits could otherwise be established at trial, justifies the Supreme Court’s conclusion that Lowe failed to adequately establish the existence of a material issue of fact necessitating a trial in response to J.C.’s prima facie evidence of entitlement to judgment as a matter of law".

In an article in the New York Law Journal, dated July 26, 2012, titled, “Concerns Over Adoption of ‘Singletree’ on Expert Affidavits,” Robert Tolchin argues that the First Department’s decision in Scott “raises alarm bells that the aberrational line of cases starting with the Second Department’s decision in [Singletree] – previously confined to the Second Department and not universally followed even there – may be migrating to the First Department.” Mr. Tolchin argues that these cases should be disavowed by court rule or the power of their holdings otherwise eviscerated by the New York Legislature. We disagree.

Contrary to Mr. Tolchin’s alarm, Scott and Singletree are important precedents that properly establish the requirement that parties to civil litigation, both plaintiffs and defendants, timely disclose their experts. It is unfair for a party to file a motion for summary judgment, after filing of the Note of Issue and Certificate of Readiness, only to be confronted by the affidavit of an expert whose opinions had not previously been disclosed. A summary judgment motion is sufficiently expensive that gamesmanship should be discouraged. It is also a waste of judicial resources to have to sort out expert disclosure issues after the case is placed on the trial calendar and dispositive motions filed.

In litigation conducted in the federal district courts, the time for expert disclosure is set out in the court’s Scheduling Order and it is understood that expert disclosure must be completed prior to the filing of dispositive motions. It is a step in the right direction that the First and Second Departments now recognize that the eleventh hour submission of a previously undisclosed expert, in opposition to a motion for summary judgment is unfair. In light of these holdings, it may be advisable for defense counsel to schedule expert disclosures in the body of the Preliminary Conference Order in state court. Then there would be even less question that a late expert disclosure should not be tolerated.

 

Non-Admitted In-House Counsel Can Practice in NYS

I am pleased to report that the New York Court of Appeals has amended the Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law to permit in-house counsel admitted in any U.S. jurisdiction to be able to register with the Court of Appeals and provide legal advice in New York to the lawyer’s employer.  For years, non-admitted in-house counsel have been hindered in their ability to provide advice to their employers concerning New York law issues at times due to the restrictions that have now been lifted.  There are two exceptions to the new rule: (1) such advice does not include court litigation representation; and (2) the Court rejected the NYS Bar Association’s recommendation to include lawyers admitted to a home jurisdiction outside the United States. 

Protecting The Privacy Of Scientists & Physicians

 When a scientist or physician signs on as a litigation expert, he opens himself up to scrutiny, not only about the bases for his opinion but also, to the extent permitted by law, his personal biases and professional background. In accepting a fee for service, the expert tacitly agrees to submit to intensive scrutiny. 

But what about the scientist or physician who is not involved in litigation? What privacy protections should be afforded to an expert whose scientific work becomes a linchpin for one or another party’s position in a toxic tort litigation? Increasingly, authors of scientific journal articles, FDA advisory panel members and other public health advocates have been subjected to increasingly intrusive subpoenas with the intent of undermining their scientific research or opinions. 

In a decision protective of the privacy of scientists and scholars involved in research benefiting public health and safety, New York Supreme Court Justice Sherry Klein Heitler refused to permit a company that marketed asbestos-containing products from obtaining the private papers of a former faculty member of the Mount Sinai School of Medicine (“Mt. Sinai”). Victor Reyniak and Sybille Reyniak v. Barnstead International et al. (2010 NY Slip Op. 30819)  In that case, Kentile Floors, Inc. (“Kentile”) served a subpoena duces tecum on Mt. Sinai seeking disclosure of Dr. Irving Selikoff’s private papers, including his personal correspondence and memoranda. Dr. Selikoff, who died in 1992, was a pioneering researcher in asbestos who devoted his career to enhancing public awareness of the hazards of asbestos and published over 380 scientific articles. Largely on the basis of Dr. Selikoff’s research, OSHA imposed safeguards for asbestos workers in the 1970’s. Kentile argued that Dr. Selikoff’s private papers might potentially shed light on “state of the art” issues crucial to their defense.  

In rejecting Kentile’s argument, and granting Mt. Sinai’s motion for a protective order, Judge Heitler held that the “expense Mt. Sinai would incur as a result of such a broad interpretation of the subpoena could well discourage other institutions from conducting vital health and safety research. Other scholars in the laboratory may fear that their unpublished notes, observations and ideas could be released to the public as a result of litigation. Although a scholar’s right to academic freedom is not absolute, it should factor into a court’s analysis on whether forced disclosure of documents is permissible (see, In R.J. Reynolds Tobacco Co., 136 Misc.2d supra at 287).”

Justice Heitler further held that “in  the circumstances of this case, Kentile’s request is sweeping and indiscriminate. The relative burden on Mt. Sinai to conduct such a mass production of documents covering 30 years of Dr. Selikoff’s studies outweighs any benefit Kentile might receive by conducting such a search.”

There is surprisingly scant case law  addressing the privacy concerns of scientists and physicians who find their professional work (and themselves) ensnared in litigation not of their own making.  In one case,  In re New York County Data Entry Worker Product Liability Litigation, No. 14003/92, 1994 WL 87529 (N.Y. Sup. Ct. N.Y. County Jan 31, 1994), discovery related to studies performed by a non-party scientist was denied because “special circumstances” warranting disclosure were not found to exist.. Noting that the non-party scientist  had made his studies public, the parties were directed to obtain the information from other sources. Similarly, Dr. Selikoff’s 380 published scientific works are also clearly available to Kentile in the public domain. However, his unpublished notes and preliminary ideas were never intended to be exposed to the public or subject to use in litigation.

As noted in Plough Inc. v. National Academy of Sciences, 530 A.2d 1152, 1157-58 (D.C. 1987) "Although premature disclosure of ongoing research may be the most severe form of ‘chill’ on scientific research, it is not the only form. Even limited disclosure of the preliminary conclusions, hypotheses, thoughts and ideas ventured by [scientists] prior to their being tested and criticized would not only embarrass those members, it would discourage [scientists] in the future from expressing themselves freely during their deliberations, and might cause some potential volunteer to refrain from participating in [] studies altogether.

 

 

 

CPLR Article 16 Protection for NY Defendants

The application of CPLR Article 16 can significantly limit a defendant’s exposure in NY litigation for non-economic loss to his or her equitable share of fault. The CPLR defines “non-economic loss” to include pain and suffering, mental anguish, loss of consortium or other similar categories of damages. Thus, Article 16 does not avail a defendant in a claim to recover lost earnings or unreimbursed medical expenses. However, for claims seeking recovery for pain and suffering, Section 1601 modifies the common law rule of joint and several liability by making a joint tortfeasor, whose share of fault is fifty percent or less, liable for plaintiff’s non-economic loss only to the extent of that tortfeasor’s equitable share. For a thoughtful analysis of whether to assert a contribution claim or to rely on the application of Article 16, I commend you to “Securing Full Protection of CPLR Article 16 for Defendants,” an article by John Lyddane and Ellen B. Fishman, partners at Martin Clearwater & Bell, which appeared in The New York Law Journal on September 14, 2010. Although the article focuses on the application of Article 16 in defending medical malpractice actions, the authors’ analysis is equally applicable to the defense of toxic tort litigation. In particular, Mr. Lyddane and Ms. Fishman provide a valuable discussion concerning how to keep Article 16 issues, (i.e., the non-defendants’ wrongs) before the finder of fact.

CPLR Article 16 contains many traps for the unwary practitioner. In particular, the exceptions to CPLR Article 16 must be considered in advising clients concerning the relief this section potentially affords them as defendants. For example, tortfeasor liability on property damage and wrongful death claims remains joint and several in respect to all categories of damages. There may be instances when a defendant should implead a co-tortfeasor as a third-party into the case rather than seek relief from Article 16. Another trap for the unwary litigant is in construction litigation. A tortfeasor shown to have violated what the law denominates a “non-delegable duty” gets no several-only status. Thus, in Labor Law Section 240 and 241 cases, a tortfeasor found liable under those sections may be found joint and severally liable for satisfying an adverse judgment if that liability is predicated upon a “non-delegable duty.”