Supreme Court, New York County, August 23, 2018

Quinn Emanuel Urquhart & Sullivan, LLP, New York City (Adam Abensohn of counsel), and Gordon Rees Scully Mansukhani, LLP, New York City (Erik C. DiMarco of counsel), for Colgate-Palmolive Company, defendant.

Simon Greenstone Panatier, P.C., New York City (Leah C. Kagan and Joseph Mandia of counsel), for plaintiff.

Defendant Colgate-Palmolive Company moves to preclude the testimony at trial of plaintiff's expert environmental health scientist and microscopist, James Webber Ph.D. Contrary to defendant's suggestion, plaintiff does not offer Dr. Webber to testify regarding the effects of nonasbestiform cleavage fragments or causation of the decedent Sandra Cohen's mesothelioma, other than the respirability of asbestos fibers, which is within his expertise.

The admissibility of Dr. Webber's opinions regarding communications between the Cosmetic, Toiletry and Fragrance Association (CTFA) and the United States Food and Drug Administration (FDA) depends on the admissibility of those communications and whether they are susceptible of expert interpretation (States v Lourdes Hosp., 100 NY2d 208, 212-213 [2003]; Styles v General Motors Corp., 20 AD3d 338, 340 [1st Dept 2005]), rather than simply the jurors' own lay interpretation without expert assistance. (People v Clyde, 18 NY3d 145, 154 [2011]; People v Santi, 3 NY3d 234, 246-247 [2004].) His expertise may allow him to testify whether, for example, the CTFA proposed and the FDA adopted, due to the absence of accurate or necessary data, a method to test for asbestos content that was insufficiently stringent or reliable. He may not testify regarding either entity's reasoning or motivations, of which he has no personal knowledge, although they may be expressed in the communications themselves. The relevance and hence the admissibility of the communications may depend in part on whether [*2]defendant participated in the CTFA's interactions with the FDA.

These issues, however, are not questions whether Dr. Webber's opinions are based on scientific principles or procedures that are not accepted in his fields of environmental health, epidemiology, toxicology, or microscopy. (People v Wesley, 83 NY2d 417, 427-428 [1994]; Matter of Carniol v New York City Taxi & Limousine Commn., 126 AD3d 409, 410-411 [1st Dept 2015]; Marsh v Smyth, 12 AD3d 307, 307-308 [1st Dept 2004]; see Sean R. v BMW of N. Am., LLC, 26 NY3d 801, 809-810{**62 Misc 3d at 863} [2016]; Marso v Novak, 42 AD3d 377, 378 [1st Dept 2007]; Styles v General Motors Corp., 20 AD3d at 339-340; Lara v New York City Health & Hosps. Corp., 305 AD2d 106, 106 [1st Dept 2003].) Therefore no hearing is necessary to determine whether to preclude his opinions on this basis. Insofar as Dr. Webber has given testimony contrary to what he offers here, defendant may use that testimony, if admissible for impeachment, for that purpose.

Insofar as plaintiff offers Dr. Webber to testify regarding the applicability of any law or what the law allows or requires, the court precludes any such opinion. (Morris v Pavarini Constr., 9 NY3d 47, 51 [2007]; Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 7 [2005]; Lopez v Chan, 102 AD3d 625, 626 [1st Dept 2013]; McCoy v Metropolitan Transp. Auth., 53 AD3d 457, 459 [1st Dept 2008].) It is the task of plaintiff's attorney to advocate and the court's task to determine what laws apply and what they require or allow. The court otherwise denies defendant Colgate-Palmolive Company's motion to preclude Dr. Webber's testimony, without prejudice to defendant's objections at trial.