No. 88 Nonnon v City of New York

In this long-running toxic tort litigation, New York City is asking the Court to dismiss nine lawsuits brought against it between 1991 and 1993 by residents of the Bronx neighborhoods closest to the now-closed Pelham Bay landfill. The landfill was operated by the City Department of Sanitation from 1963 to 1979, when it was closed by court order, but hazardous waste continued to be illegally dumped there. It was classified as an "inactive hazardous waste site" by the State Department of
Environmental Conservation in 1983, and the City subsequently signed consent decrees requiring it to develop remedial plans to prevent leaching of the wastes into surrounding areas. The lawsuits were filed by 28 plaintiffs, including 15 who claimed that extended exposure to hazardous substances emanating from the landfill caused them to develop acute lymphoid leukemia or, in two cases, Hodgkin's disease. The other 13 plaintiffs were family members who filed derivative claims.
Supreme Court denied the City's summary judgment motion to dismiss the lawsuits for failure to
state a cause of action, ruling the plaintiffs presented sufficient evidence of a causal connection between the landfill and their cancers to warrant a trial. The court dismissed the derivative claims of 12 plaintiffs as time-barred.

The Appellate Division, First Department dismissed the complaint of a 13th plaintiff as timebarred,
with permission to replead, but otherwise affirmed the order in a 3-2 decision. The majority
held that reports and findings of the plaintiffs' epidemiologists and toxicologists were admissible under the Frye test and were sufficient to defeat the City's motion. It said the plaintiffs were not required to quantify their level of exposure to any particular carcinogen "because no scientist could make an accurate measurement of the doses of the combined carcinogens to which [they] were exposed." The court said, "This litigation arose from a community with a disproportionate incidence of fatal cancers in an area surrounding a landfill containing approximately one million gallons of hazardous waste. It is uncontested that defendant allowed years of illegal dumping of what are known to be carcinogens at the Pelham Bay landfill, and one of plaintiffs' experts identified four 'exposure pathways' through which these plaintiffs could have been 'poisoned....' Proper methods of containing the spread of hazardous materials through a variety of exposure pathways were concededly not implemented."

The dissenters argued that the opinions of plaintiffs' experts "are not based on generally accepted scientific principles," as required by Frye, because they "fail to articulate with any specificity the level of any substance, let alone known carcinogens, to which plaintiffs were exposed. Nor do they
point to any scientific literature that has concluded that any substance found in the landfill is capable of producing acute lymphoid leukemia or Hodgkin's disease or the level of exposure to the substance that will produce that illness.... Thus, any conclusions reached by plaintiffs' experts as to the plaintiffs' level of exposure to known carcinogens found in the Pelham Bay landfill and whether such exposure was substantial enough to cause [the cancers] are purely speculative."