COHEN v. AMERICAN BILTRITE INC (2018)

Defendant Colgate-Palmolive Company moves to preclude the testimony at trial of plaintiff's expert environmental health scientist and microscopist, James Webber Ph.D. Contrary to defendant's suggestion, plaintiff does not offer Dr. Webber to testify regarding the effects of nonasbestiform cleavage fragments or causation of the decedent Sandra Cohen's mesothelioma, other than the respirability of asbestos fibers, which is within his expertise.

The admissibility of Dr. Webber's opinions regarding communications between the Cosmetics, Toiletries, and Fragrances Association (CTFA) and the United States Food and Drug Administration (FDA) depends on the admissibility of those communications and whether they are susceptible of expert interpretation, States v. Lourdes Hosp., 100 N.Y.2d 208, 212-13, 762 N.Y.S.2d 1, 792 N.E.2d 151 (2003); Styles v. General Motors Corp., 20 A.D.3d 338, 340, 799 N.Y.S.2d 38 (1st Dep't 2005), rather than simply the jurors' own lay interpretation without expert assistance. People v. Clyde, 18 N.Y.3d 145, 154, 938 N.Y.S.2d 243, 961 N.E.2d 634 (2011); People v. Santi, 3 N.Y.3d 234, 246-47, 785 N.Y.S.2d 405, 818 N.E.2d 1146 (2004). His expertise may allow him to testify whether, for example, the CTFA proposed and the FDA adopted, due to the absence of accurate or necessary data, a method to test for asbestos content that was insufficiently stringent or reliable. He may not testify regarding either entity's reasoning or motivations, of which he has no personal knowledge, although they may be expressed in the communications themselves. The relevance and hence the admissibility of the communications may depend in part on whether defendant participated in the CTFA's interactions with the FDA.

These issues, however, are not questions whether Dr. Webber's opinions are based on scientific principles or procedures that are not accepted in his fields of environmental health, epidemiology, toxicology, or microscopy. People v. Wesley, 83 N.Y.2d 417, 427-28, 611 N.Y.S.2d 97, 633 N.E.2d 451 (1994); Carniol v. New York City Taxi & Limousine Commn., 126 A.D.3d 409, 410-11, 2 N.Y.S.3d 337 (1st Dep't 2015); Marsh v. Smyth, 12 A.D.3d 307, 307-308, 785 N.Y.S.2d 440 (1st Dep't 2004). See Sean R. v. BMW of N. Am., LLC, 26 N.Y.3d 801, 809-10, 28 N.Y.S.3d 656, 48 N.E.3d 937 (2016); Marso v. Novak, 42 A.D.3d 377, 378, 840 N.Y.S.2d 53 (1st Dep't 2007); Styles v. General Motors Corp., 20 A.D.3d at 339-40, 799 N.Y.S.2d 38; Lara v. New York City Health & Hosps. Corp., 305 A.D.2d 106, 106, 757 N.Y.S.2d 740 (1st Dep't 2003). Therefore no hearing is necessary to determine whether to preclude his opinions on this basis. Insofar as Dr. Webber has given testimony contrary to what he offers here, defendant may use that testimony, if admissible for impeachment, for that purpose.

Insofar as plaintiff offers Dr. Webber to testify regarding the applicability of any law or what the law allows or requires, the court precludes any such opinion. Morris v. Pavarini Constr., 9 N.Y.3d 47, 51, 842 N.Y.S.2d 759, 874 N.E.2d 723 (2007); Buchholz v. Trump 767 Fifth Ave., 5 N.Y.3d 1, 7, 798 N.Y.S.2d 715, 831 N.E.2d 960 (2005); Lopez v. Chan, 102 A.D.3d 625, 626, 959 N.Y.S.2d 67 (1st Dep't 2013); McCoy v. Metropolitan Transp. Auth., 53 A.D.3d 457, 459, 863 N.Y.S.2d 8 (1st Dep't 2008). It is the task of plaintiff's attorney to advocate and the court's task to determine what laws apply and what they require or allow. The court otherwise denies defendant Colgate-Palmolive Company's motion to preclude Dr. Webber's testimony, without prejudice to defendant's objections at trial.

Lucy Billings, J.