A New York state appellate court has issued a significant decision concerning New York’s “Toxic Tort” statute of limitations and the requirement that plaintiffs prove knowledge concerning the state of scientific knowledge via expert affidavit. Approximately forty plaintiffs in the mass toxic tort products liability litigation, In Re IBM Semiconductor Worker Litigation, appealed dismissals as time barred certain claims they asserted as IBM workers and/or their offspring alleging various cancers and birth defect injuries.

Also on appeal to the Appellate Division Second Department were the cross-motions of certain plaintiffs seeking leave to amend their complaints to add a direct reference to the tolling provisions of CPLR §214-c(4), which allows up to five years to file a complaint from discovery of the injury if plaintiff can prove that the “technical, scientific or medical knowledge and information” was such that plaintiff could not ascertain the cause of the injury within the three years typically permitted from the date of diagnosis. Plaintiffs belatedly supported their cross-motions with individual expert affidavits relating to the plaintiffs’ specific injuries. The lower court denied the cross-motions and dismissed their complaints noting procedurally that plaintiffs already moved to amend their complaints in an earlier motion and the adequacy of their proof had already been addressed.

In an earlier global motion on behalf of 160 plaintiffs (which included the current plaintiffs who subsequently cross-moved), plaintiffs submitted a single affidavit of one expert stating that at the time of all of the plaintiffs’ diagnoses there was insufficient scientific or medical knowledge to ascertain the cause of these plaintiffs’ injuries within the three year limitations period. The plaintiffs’ expert did not address the specific injuries of each plaintiff, the specific chemicals at issue or the state of scientific knowledge at the time of each plaintiff’s diagnosis. The lower court previously held that the plaintiffs “ha[d] offered only a bare-bones showing that [was] not related in any manner to the claims, injuries, or exposures of any individual plaintiff, or to the state of the scientific, technical and medical knowledge available to each of them.” Abbaticchio, v. Union Carbide Corp., Index No. 2550/99, 2465/98, 18275/97, 15612/00, 3045/01, 13561/98, 2548/99, 18755/97, 00146/98, 02549/99, 09011/00, 4048/97, 15665/97, 12300/99, 4049/97, 15664/97, 2001 WL 1470370, at *29 (Sup. Ct. Westchester Co. 2001).

On appeal, the Appellate Division affirmed, indicating that the proposed amendments were “palpably insufficient because plaintiffs failed to aver facts demonstrating the applicability of the tolling provisions…” citing Burger v. Union Carbide Corp., 304 A.D.2d 700, 701 (2d Dept. 2003). Plaintiffs’ attempt to establish that the state of scientific knowledge was such that they did not know that their chemical exposures at IBM caused their various cancers, by submission of a conclusory expert affidavit which did not address any specific medical or scientific knowledge during the applicable time period from the individual plaintiff’s date of diagnosis, was insufficient to amend their complaints to add the CPLR §214-c(4) toll.

Application of this New York appellate decision is particularly noteworthy in the context of mass tort litigation. Clearly, every plaintiff must meet his or her burden to provide the necessary medical or scientific affidavit establishing the state of scientific knowledge when invoking CPLR §214-c(4). Each plaintiff must show when the scientific community gained general acceptance and objective knowledge that specific injuries are associated with certain toxic substances. Under New York’s Toxic Tort statute of limitations, CPLR §214-c, mass tort plaintiffs cannot amend their complaints to invoke the tolling provisions absent individual and specific expert affidavits.

If you have any questions regarding this alert or other issues related to mass tort litigation, please contact Harris Beach member Judi Abbott Curry and of counsel Stanley Goos or the Harris Beach attorney with whom you usually work at (212) 687-0100.

This legal alert provides brief analysis or comments on matters related to toxic torts. This legal alert does not purport to be a substitute for advice of counsel on specific matters.