Multi-Million Dollar Lawsuit Alleging Brain Injury From Natural Gas Exposure Thrown Out by New York Court

February 22, 2006

HAWTHORNE, New York -- TRAUB EGLIN LIEBERMAN STRAUS LLP (TELS) is pleased to announce that an Appellate Court of the State of New York recently upheld a trial court's dismissal of a case alleging brain damage, respiratory problems and other injuries caused by exposure to natural gas.

In Zaslowsky, et al., v. J.M. Dennis, et al., J.M. Dennis Construction Company Corp. was a general contractor who was hired to excavate and re-grade a building's rear entrance. To complete the project, J.M. Dennis used Pomarc Associates as a subcontractor. On November 3, 2000, a Pomarc employee operating a backhoe struck and ruptured a natural gas line. The line break prompted the Plaintiff to evacuate the building through the building's main entrance, located on the opposite side of the building from where the natural gas was leaking. During the evacuation, the Plaintiff proceeded to a courtyard, and then left the area within a half hour. The Plaintiff never lost consciousness or sought medical treatment from the paramedics who rushed to the scene. However, after a period of time, the Plaintiff claimed that she became ill and could not return to work.

The Plaintiff filed suit, alleging that the defendants had negligently pierced the natural gas line. The Plaintiff also claimed that the natural gas released caused her to suffer neurocognitive dysfunction, asthma, respiratory problems, and post-traumatic stress disorder. Due to her medical conditions, the Plaintiff claimed that should could not return to work. Early in the case, the Plaintiff made a settlement demand of $2 million.

TELS attorneys Robert M. Leff and Denis M. Farrell, who were the primary defense attorneys, retained the services of Exponent, an engineering and scientific consulting firm. Exponent examiners reviewed medical records, and performed a gas dispersion modeling test that determined the maximum amount of natural gas exposure the Plaintiff could have suffered. Exponent concluded that the Plaintiff could not have possibly been exposed to unsafe levels of natural gas. Exponent also determined that there was no reliable medical evidence that natural gas exposure could cause the injuries alleged, and that the Plaintiff's injuries were otherwise pre-existing the natural gas leak.

Armed with Exponent's report, TELS attorneys moved for summary judgment in the trial court, arguing that there was no admissible evidence establishing that the plaintiff was exposed to harmful levels of natural gas, that natural gas exposure can cause the injuries alleged, and that the natural gas exposure to the Plaintiff actually caused her injuries. The Plaintiff cross-moved for summary judgment, submitting affidavits from three of her treating physicians stating that the injuries were caused by the natural gas.

When presented with the evidence, the trial court granted TELS' motion for summary judgment. The Court dismissed the case in its entirety, finding that the Plaintiff failed to meet its burden of proof for causation. The Plaintiff then appealed to the Appellate Division, Second Department. The appellate court ruled that defendants met their burden of establishing entitlement to summary judgment by submitting expert evidence based on a scientifically-reliable methodology that there was no causal connection between the natural gas leak and Plaintiff's injuries.

The burden of proof then shifted to the Plaintiff to raise a triable issue. The Court found, however, that none of the Plaintiff's experts were able to articulate with any specificity the level of natural gas exposure the Plaintiff received. They also could not present evidence that supported their theory that the natural gas caused these injuries. The Court ruled the Plaintiff did not raise a triable issue, and upheld the lower court's ruling, dismissing the case with prejudice.

TELS believes this ruling is significant, raising issues that apply to all toxic exposure cases, including the ever-increasing toxic mold exposure claims. Based on Zaslowsky, a Plaintiff alleging toxic mold exposure must present scientifically-sound proof that the plaintiff was exposed to the toxic agent, the toxic agent exposure can cause the injuries alleged, and that the alleged exposure actually caused the injuries. For the uninformed Plaintiff's counsel, this three-prong causation test can be prohibitively difficult and expensive.

The case involved was Diane Zaslowsky and Leonard Zaslowsky v. J.M. Dennis
Construction Company Corp., Pomarc Associates, Inc., and Michael Delmonaco (Supreme Court of the State of New York, Nassau County, Index Number 6751/02).

TELS congratulates Mr. Leff and Mr. Farrell for their success in defeating plaintiff’s motion in this complex multi-million dollar case. For more information on Mr. Leff, a partner with TELS, please visit:

www.tels.com/attorneys/robertleff

And to learn more about Mr. Farrell, an associate in the law firm's New York office, please review his C.V. online at:

www.tels.com/attorneys/denisfarrell