Defendant International Business Machines Corporation ("IBM") moves for an order [*2]granting summary judgment pursuant to CPLR § 3212 in favor of IBM with respect to: (1) all claims that plaintiffs have been injured by exposure to any chemical other than trichloroethylene ("TCE"); and (2) all claims that plaintiffs have been injured by exposure to TCE at any location other than 1605 Tracy Street (the Ivory residence) and 1702 East Main Street (the Odom residence) in Endicott, New York.^[FN1]

The court heard oral argument between July 9, 2012 and July 18, 2012 on eleven IBM motions. Today, the court has issued five separate Decisions resolving only those motions dealing with legal issues which are referred to, in sequence, as: (1) Negligence; (2) Nuisance; (3) Trespass; (4) Other Chemicals/Other Locations; and (5) Medical Monitoring. This Decision is the fourth in the sequence of decisions issued today. The court has reserved decision on the remaining motions addressing the testimony of various plaintiffs' experts until after the court holds Frye/Parker hearings thereon.

This motion has been informally referred to as the "Other Chemicals/Other Locations" motion. A brief explanation of these terms as used by the court and counsel will be helpful in placing the remaining discussion into context.

The phrase "other chemicals" refers to any chemical other than TCE allegedly released by IBM at the Endicott Facility. The "other chemicals" alleged by plaintiffs to have been released by IBM at the Endicott Facility into the air and/or groundwater include tetrachloroethylene, thrichloroethane, and trichlorotrifluoroethane.

The phrase "other locations" refers to any location other than 1605 Tracy Street (the Ivory residence) and 1702 East Main Street (the Odom residence).^[FN2] The other locations identified by plaintiffs in their pleadings and various discovery responses are too numerous to list here but include twenty three other locations at which plaintiffs' exposures allegedly took place including other residences, workplaces, businesses, and schools.

As a threshold matter, IBM has designated this motion as one for summary judgment.

It is worthwhile at this juncture to review plaintiffs' experts' statements about the other chemicals and other locations before proceeding to the legal analysis of the arguments presented. The parties focus this motion on the opinions of three of plaintiffs' experts that reference the concept of co-exposure, namely Donald I. Siegel, PhD, Patricia L. Meinhardt, MD, and William R. Sawyer, PhD.

First, Dr. Siegel states, in pertinent part, as follows:

[a]lthough a number of solvents were measured in the soil gas under the two exposure homes by Sanborn Head in 2003, I was instructed to determine the likely historical levels of TCE present beneath the two plaintiff and two surrogate homes. By focusing exclusively on TCE, I do not mean to imply that the other volatile organic compounds in the contaminant plume did not follow similar migration pathways into the homes. In my opinion, all of the contaminants found in the two surrogate homes next door to the plaintiffs' homes were also likely present in the plaintiffs' homes.

(Siegel Affidavit dated May 24, 2012, ¶ 22, p 14 [emphasis added]).

Second, on the issue of other chemicals, Dr. Meinhardt states that "[p]laintiffs were exposed to TCE and other hazardous solvents and co-exposures to a mixture of compounds creates additional health concerns" (Meinhardt Affirmation dated June 1, 2012, ¶ 25 [c]).

Third, plaintiffs submit expert disclosure from Dr. Sawyer in which it is indicated that he will testify as follows:

Dr. Sawyer will testify that the dose reconstruction he performed significantly underestimates the true dosage as many years of exposure were excluded due to insufficient air modeling and ground water data. Additionally, many plaintiff residents were exposed to TCE as newborn or young children, enhancing the potency of this mutagenic carcinogen up to 10-fold beyond that reported below. The true health effects are also underestimated in that each of the plaintiffs were exposed to a variety of VOCs in addition to TCE in the ambient air and indoor air from vapor intrusion into their homes. The precise dosage of exposure to these other VOCs has not been calculated but is likely to be significant and to enhance the negative health effects caused by these exposures.

(Sawyer Expert Disclosure dated September 30, 2011, page 7 [emphasis added]).

C.Discussion

It is well-settled that the Court of Appeals has determined that while "a precise, numerical [*4]level of exposure" is not required, a plaintiff must produce a "scientific expression of [plaintiffs] exposure level" to establish causation (Parker v Mobile Oil Corp., 7 NY3d 434, 449 [2006]). In Parker, the Court of Appeals excluded the testimony of two experts that spoke only in generalities regarding plaintiff's exposure to benzene due to the absence of any scientific expression of the alleged exposure levels (Id.).

Based on the above-referenced expert opinions and disclosure, IBM contends that plaintiffs have failed to disclose any expert evidence, let alone any scientific expression, of the levels of exposure to chemicals other than TCE that have caused injury to plaintiffs, or of the levels of exposure at any location other than the Ivory family and Odom family residences that have caused injury to plaintiffs, thereby entitling IBM to exclusion of that evidence.

In opposition, plaintiffs argue their experts will testify "[t]hat the proffered quantification of [plaintiffs] exposure to TCE at home is actually an underestimation of their total exposure to that chemical and other toxins at other locations. Nothing in the record or the law warrants the exclusion of these other documented, albeit not quantified, exposures from the evidence underlying plaintiffs' claims" (Plaintiffs Memorandum of Law [Other Chemicals/Other Locations], pp 1-2 [emphasis in original]). Plaintiffs also assert that their experts have "clearly referenced" their exposure to other chemicals and other locations (Plaintiffs' Memorandum of Law [Other Chemicals/Other Locations], p 4).

In this court's view, the entirety of plaintiffs' proof with respect to the other chemicals and other locations boils down to the following references by plaintiffs' experts outlined above and repeated here:

•"the contaminants found in the two surrogate homes next door to the plaintiffs' homes were also likely present in the plaintiffs' homes" (Siegel Affidavit dated May 24, 2012, ¶ 22);

•"[p]laintiffs were exposed to TCE and other hazardous solvents and co-exposures to a mixture of compounds creates additional health concerns" (Meinhardt Affirmation dated June 1, 2012, ¶ 25 [c]); and

•"[t]he precise dosage of exposure to these other VOCs has not been calculated but is likely to be significant and to enhance the negative health effects caused by these exposures" (Sawyer Expert Disclosure dated September 30, 2011, page 7).

This court finds that while plaintiffs' experts may have referenced other chemicals, the mere mention of the possibility or concept of co-exposure falls far short of the proof required under Parker. There is simply no quantification whatsoever, let alone any scientific expression, of whether, or at what levels, any plaintiff has ever been exposed to any other chemical. Moreover, with respect to other locations, the proof is even more speculative as Dr. Sawyer merely makes references to plaintiffs' ages and body weight at the time plaintiffs allegedly visited other locations.

Contrary to plaintiffs' arguments, the court finds that any alleged additional exposure to [*5]other chemicals and/or other locations must satisfy Parker in its own right and may not merely be deemed an additive to any underlying exposure. Plaintiffs assert that there is sufficient literature on the concept of co-exposure to other solvents having an additive effect that provides a proper foundation for their experts' testimony in this regard citing, among other things, an EPA September 2011 report. The court disagrees and finds that it is simply not enough to rely upon an academic recitation of the concept of co-exposure without scientific expressions of exposure levels as required under Parker.

In sum, the court finds that plaintiffs have failed to satisfy Parker with respect to other chemicals and other locations. As such, plaintiffs' experts will be precluded from testifying that plaintiffs have been injured by co-exposure to other solvents or that exposure at other locations injured plaintiffs.

Parenthetically, the court notes that even if it had agreed with plaintiffs' argument that the allegations of co-exposure need not satisfy Parker in its own right, the court would still have found plaintiffs' proof of co-exposure to be insufficient. In this court's view, plaintiffs' reliance on literature discussing the general concept of co-exposure absent proof specific to this case would be speculative in nature, inflammatory, and ultimately prejudicial to IBM.

All the parties' remaining arguments have been considered and found to be without merit.

This constitutes the Decision of the court.

Pursuant to an agreement between the parties outlined to the court in a telephone conference held November 2, 2012, no orders shall issue or be filed in connection with this Decision until after the parties have conferred and submitted a proposed order or orders to the court, with any disputes about such proposed orders to be resolved by the court at a conference to be convened on or about December 12, 2012.

Dated:November 15, 2012

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous [*6]

Justice, Supreme Court