Representative Cases for Toxic Tort Litigation

Representative Cases

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• Taveras v. 2995 Botanical Sq. LLC (Supreme Court, Bronx County) (dismissing all claims against a building owner asserted on behalf of an infant who claimed developmental delays as a result of a blood lead level of 27 ug/dL at age 1; court dismissed plaintiffs' Title X and punitive damage claims, and also ruled that there was no evidence that the infant was exposed to any actual lead-based paint hazard at the subject premises during the client's period of ownership, which expired approximately six weeks prior to the identification of lead-based paint hazards by the New York City Department of Health)

• Mallozzi v. EcoSMART, 2013 WL 2415677 (E.D.N.Y.) (dismissing plaintiff’s claims that he had suffered permanent injuries and needed future medical treatment as a result of brief exposure to our client’s pest control product; excluding the opinions of plaintiffs' occupational and environmental health expert pursuant to Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1983), as a result of which plaintiff could not establish a causal connection between the alleged exposure and the claimed injuries)

• Bianca Jagger v. Katz Park Avenue Corp., 33 Misc.3d 139(A) (App. Term, 1st Dept.  Nov. 25, 2011) (reversing trial court and dismissing bodily injury in excess of $20 million allegedly sustained by the ex-wife of Rolling Stone Mick Jagger as a consequence of water damage and resultant mold growth in her rent-stabilized Park Avenue apartment)

• Comacho v. New York Housing Authority, 83 A.D.3d 475 (App. Div. 1st Dep’t 2011) (reversing the lower court’s decision granting plaintiff summary judgment on liability, finding triable issues of fact on whether there were hazardous lead paint conditions causing injury to the infant plaintiff and whether client had, in any event, taken reasonable measures to remediate any such alleged hazardous condition)

• Wideman v. NYCHA, No.18941/2005 (Sup. Ct. Kings Co. 2011) (bifurcating liability and damage issues in a lead paint claim involving brain injury claims by a special education child, after which defense focused on challenge to the reliability of lead paint test results obtained by the Department of Health and obtained favorable settlement)

• Reid v. New York City Housing Authority, No. 4965/06 Sup. Ct. Kings Co. 2010 (awarding defendant summary judgment in a lead paint case based upon the argument that plaintiff’s reported blood lead level (“BLL”) of 30 ug/dL represented a false positive reading, that there was neither competent evidence of any BLL above generalized environmental levels Or evidence of a lead-related injury)

• Burns v. D&B Acoustical et al., No. 2719/09 (Sup. Ct. Schenectady Co. 2011) (dismissing asbestos supplier's claim for conditional common law indemnification against client, an asbestos product manufacturer, on grounds that jury should decide issue and that imputed "knowledge" of an asbestos supplier and product manufacturer is distinct and that the asbestos supplier failed to proffer evidence that it did not or could not have known about the dangers of asbestos)

• Smith v. New York City Housing Authority, 74 A.D.3d 645 (App. Div. 1st Dep’t 2010) (affirming trial court’s award of summary judgment to client in lead paint personal injury action on ground that the affidavit submitted by plaintiff’s expert was legally insufficient to overcome the defendant’s evidence that it was not liable to plaintiff as a matter of law)

• Edmonson v. 141 Realty LLC, No. 36638/05 (Sup. Ct. Kings Co. 2010) (defense verdict in lead paint case involving an infant who claimed brain injury and academic compromise in consequence of a blood lead level (“BLL”) of 22 ug/dL at age 5 and BLLs between 5 – 8 ug/dL beginning at age 2, unanimous  jury finding that no hazardous lead-based paint conditions present)

• Archstone v. Tocci Building Corporation of New Jersey, No. 01018/08  (Sup. Ct. Nassau Co. 2009) (denying plaintiffs' claims that a forensic architect’s reports were privileged, noting that plaintiffs submitted sworn testimony that “smacks of revisionist history” in case against developer/owner of a residential community, including 20 residential buildings, where plaintiffs seek over $70 million)

• Nostrom v. A.W. Chesterton Co., 15 N.Y.2d 502 (2010), affirming, 59 A.D.3d 159 (1st Dep’t 2009) (upholding trial court’s summary judgment dismissing deceased plaintiff’s claim that his alleged asbestos exposure was attributable to a general contractor’s purported violation of New York State Industrial Code regulations)

• Horvath v. Bechtel et al., No. MID-L-2068-06 (N.J. Super. Ct. Middlesex County 2008) (applying New Jersey Statute of Repose where client performed engineering and modifications to an existing refinery more than 30 years before plaintiff developed an injury)

• Rivera v. NYCHA, No. 6134/06 (Sup. Ct. Kings Co. 2009) (defense verdict in a lead paint claim involving a child with a reported blood lead level (“BLL”) of 25 ug/d, jury finding that although defendant was negligent in allowing hazardous lead paint conditions to exist at the subject apartment, defendant’s negligence was not the cause of any claimed damages)

• Hepburn v. LIRR, 04-cv-4194 (E.D.N.Y. 2008) (defense verdict for the railroad client in a FELA suit, where a former conductor alleged head, neck and throat cancer from second-hand tobacco smoke exposure ("ETS") while he was a conductor on "smoking trains")

• Vega v. New York City Housing Authority, 859 N.Y.S.2d 438 (App. Div. 1st Dep’t 2008) (affirming trial court’s grant of summary judgment to defendant in a lead paint action because (1) defendant was not chargeable with notice of the infant, having denied the father’s application for residency at the grandmother’s apartment and (2) it had exercised due care)

• Held v. A.W. Chesterton Co., 41 A.D.3d 177 (App. Div. 1st Dep’t 2007) (upholding summary judgment dismissing Labor Law claims on behalf of deceased plaintiff who contracted mesothelioma allegedly due to asbestos exposure)

• Paniccia v. Long Island Rail Road Co., 297 A.D.2d 366 (App. Div. 2d Dep’t 2002) (reversing judgment for one plaintiff based on jury verdict unless plaintiff accepted reduction of pain and suffering awards from $3 million down to $1.25 million and directing new trial on damages for other plaintiff because insufficient evidence concerning fear of cancer claim)

• Aguirre v. Long Island Rail Road Co., 286 A.D.2d 658 (App. Div. 2d Dep’t 2001) (reversing judgments and directing new trial of both liability and damages on three railroad workers’ claims of injurious exposure to asbestos)

• Buckley v. Metro-North Commuter R.R., 521 U.S. 424 (1997) (affirming verdict firm obtained at trial in lead case for over 100 asbestos claims and handled through Second Circuit affirmance; firm received the case, and over 40 boxes of documents and multiple depositions, only a few short weeks before trial)

• Consorti v. Armstrong World Industries, Inc., 72 F.3d 1003 (2d Cir. 1995) (setting aside as excessive $12 million jury verdict for the pain and suffering of a pipe insulation worker who died after contracting mesothelioma, finding that the maximum sustainable award was only $3.5 million)

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