Motion Success in Environmental, Tear Gas Exposure Action
By: Carter Conboy
Carter Conboy successfully defended our client, an insurance company, in a toxic tort/breach of contract/breach of duty of good faith and fair dealing action in Albany County Supreme Court before the Honorable Joseph C. Teresi.
The plaintiffs, a husband and wife, made a claim with their homeowners insurance company after a local police department used tear gas to extract the plaintiffs’ tenant from the basement apartment of the residence. The plaintiffs alleged that the defendant remediation contractors retained to remediate the tear gas – who were paid by the insurance company – did not fully remediate the property and that the alleged remaining tear gas and/or remediation chemicals used resulted in personal injuries including pulmonary, skin, urological, and gynecological injuries due to the alleged exposure. The plaintiffs claimed that the remediation needed to be redone or the house needed to be razed because of the allegedly remaining contamination.
Carter Conboy moved to dismiss the plaintiffs’ Complaint against the insurance company, arguing that the plaintiffs’ breach of contract cause of action was barred by the statute of limitations and the cause of action sounding in breach of duty of good faith and fair dealing was duplicative of the breach of contract cause of action. In addition, the defense moved for summary judgment on the grounds that the plaintiffs could not establish the requisite exposure, general causation, or specific causation with respect to the alleged exposure to the tear gas and/or remediation chemicals pursuant to the Court of Appeals’ standard in Parker v. Mobil Oil Corp. In support of this defense, Carter Conboy produced a sworn Affidavit of an expert Toxicologist and Epidemiologist who performed a records review of the voluminous medical records and the three post-remediation testing reports that all demonstrated that no detectable level of tear gas remained in the house following the remediation. The defendant remediation contractors similarly moved for dismissal.
In response to the defendants’ motions, and without any additional testing of the plaintiffs’ home, the plaintiffs argued that the methods used by the defendant remediation contractors were improper and therefore tear gas must have remained in the home, causing the claimed injuries.
Judge Teresi, by Decision and Order, granted our Motion and the defendant remediation contractors’ motions dismissing the plaintiffs’ Complaint in its entirety, citing the standard in toxic exposure cases as set forth within the recent Court of Appeals’ case Cornell v. 360 W. 51st Realty, LLC, which reiterated the Parker standard: in a toxic exposure case, an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that the plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation). Specifically, Judge Teresi noted that while the insurance company and other defendants met their burden of proof on the motion, the plaintiffs failed to offer a fact-based showing that tear gas or remediation chemicals remained in the plaintiffs’ home after the remediation was complete. The Court also found that the plaintiffs failed to raise a triable issue of material fact relative to the specific causation of the alleged injuries.