RKT Wins Appeal Affirming Summary Judgment In Toxic Exposure Case

RKT partners Thomas F. Keane and Fern Flomenhaft, with assistance on the brief from associate H. Devrim Elci, prevailed before the First Department Appellate Division in the case of Todman v. Yoshida et al.  Plaintiff Ulric Todman alleged he had suffered brain damage, memory loss and other physical symptoms after being exposed to fumes from paint-stripping agents in use in the apartment below his.  Plaintiff Todman's expert report went into detail on the negative effects of the chemicals he was allegedly exposed to, but never stated how much he had ingested or what amounts of the chemicals were safe to ingest without injury. 

Mr. Keane successfully argued before the Appellate Division that under the rule expressed by the Court of Appeals in Parker v. Mobil Oil Corp., the plaintiff's expert report was unfounded because it failed to detail either plaintiff's exposure level or how much toxin was unsafe to ingest.  While plaintiff's expert had provided anecdotal stories and a laundry list of frightening symptoms supposedly produced by the toxins alleged to have been present, he had never actually drawn any connection between the laundry list and the plaintiff.  Following intense questioning by the Appellate Division panel, the Court agreed that in order to meet the Parker standard, an expert report in a toxic exposure case must set forth not only how much toxin the plaintiff allegedly ingested, but at what level physical injury could be expected to result.  This ruling raises the bar for plaintiff's experts in toxic exposure cases to come forward with real evidence of exposure, rather than ominous warnings of a chemical's potential negative effects.