New York State Court of Claims

New York State Court of Claims

O'CONNOR v. THE STATE OF NEW YORK, #2001-013-502, Claim No. 91134


Decedent claimant, an office worker who was allegedly exposed to unusually high amounts of formaldehyde gas from new desks, failed to prove that she was, in fact, so exposed. Even if such exposure had been established, scientific testimony and evidence failed to establish that it was a probable cause of her multiple myeloma, a form of cancer.

Case Information

MICHAEL O'CONNOR, Executor of the Estate of CELESTE MORRELL, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: ANTHONY J. PEITRAFESA, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 27, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

I. Introduction

Decedent, Celeste Morrell, worked for the Onondaga County Department of Social Services (OCDSS) in the Onondaga County Civic Center beginning in 1988. She stopped working on November 26, 1990, when she suffered a seizure and was diagnosed with multiple myeloma, a form of cancer. In this claim, she alleged[1]
that exposure to formaldehyde gas caused her cancer. She claimed the gas came from desks that were manufactured by Corcraft Industries, a division of the New York State Department of Correctional Services, and delivered to OCDSS in 1989. Decedent filed her claim in February 1995, more than four years after she discovered her injury and alleged that her claim was timely because the technical, scientific or medical knowledge and information sufficient to ascertain the cause of her injury had not been discovered, identified or determined prior to 1994 (CPLR 214-c[4]); Court of Claims Act §10[7]).[2] She sought damages under theories of negligence, strict product liability and breach of warranty, and her executor subsequently amended the claim to assert a cause of action for wrongful death.
Defendant maintained that the Corcraft desks that it sold to OCDSS were safe, and denied that there was any causal connection between the desks and Decedent's illness. In fact, it maintained that Decedent never used or worked on the same floor as the Corcraft desks in question and could not have been exposed to any formaldehyde exuded by the desks.

At trial, Decedent testified on her own behalf and called a total of 13 witnesses, including (1) employees from the state and local agencies that investigated complaints about formaldehyde in Corcraft furniture; (2) employees from the Department of Correctional Services who were responsible for the manufacture of Corcraft furniture; (3) physicians who treated her; and (4) experts on the issue of medical causation and damages. Defendant called (1) Decedent's former supervisor; (2) a sanitarian who investigated complaints that Decedent made about her furniture; (3) a Corcraft engineer who was responsible for safety issues; (4) experts on medical causation and damages; and (5) several witnesses who had factual information relevant to Decedent's damages.

II. The Properties and Uses of Formaldehyde

The evidence established that formaldehyde is a naturally occurring organic compound that exists in the atmosphere and is a gaseous state at room temperature. It is used in the manufacture of many products, including carpeting, wall coverings and ceiling tiles. It is a common ingredient in many glues, including glues that are used to manufacture particle board, a composite wood material. It is also found in cigarette smoke.

Prior to the 1989 incidents at issue here, formaldehyde had been classified as a
possible human carcinogen by the National Institute of Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA). Both agencies had also established guidelines for the maximum amount of formaldehyde to which workers should be exposed in the course of a work day (see, Exhibit 27).
The Corcraft witnesses that Decedent called at trial confirmed that Defendant had been manufacturing and selling desks made of particle board for many years and that the particle board it used in many of its desks, including the ones that it sold to the OCDSS in 1989, contained formaldehyde. According to witnesses called by both sides, particle board furniture manufactured with formaldehyde tends to give off formaldehyde gas, particularly when it is new. This may elevate the formaldehyde content of the air in proximity to furniture, but the amount of formaldehyde exuded decreases over time.

III. Decedent's Claimed Formaldehyde Exposure

In late 1988 and in 1989, OCDSS purchased 275 brand new particle board desks from Corcraft. Upon their delivery, OCDSS deployed a large number of the desks in offices located in the Onondaga County Civic Center and in another OCDSS office located in the Greystone Building.

In June 1989, the Bureau of Environmental Risk of the Onondaga County Health Department received word that OCDSS workers on the eighth floor of the Civic Center were complaining about an objectionable odor and that one worker had been provided emergency respiratory assistance. Mr. Glenn Hall, the Bureau's sanitarian, investigated the problem on June 19 or June 20, 1989. He determined that the objectionable odor was formaldehyde which, he believed, was traceable to the large number of new Corcraft desks (approximately 50-70) that had recently been placed on that floor.

Mr. Hall used Dragger Tube tests to evaluate the air quality on the eighth floor of the Civic Center. A sample Mr. Hall took approximately ten to twelve inches above one of the desks yielded a formaldehyde reading of 0.1 parts per million (ppm). Another sample taken from the air inside a closed desk drawer yielded a concentration of 0.5 ppm. The reading of 0.5 ppm was about half the l.0 maximum level allowed by OSHA regulations, but it was about 31 times the eight-hour exposure limit of 0.016 recommended by NIOSH.

The testimony of Mr. Hall and of the Bureau's director, Mr. Robert Burdick, established that the Bureau was concerned about the 8th floor formaldehyde levels and the potential health effects those levels could have upon the workers on that floor. The Bureau immediately arranged to have the air conditioning adjusted to allow the maximum amount of outside air possible to be introduced to that floor.

Over the next three weeks, the Onondaga County Health Department and the New York State Department of Labor conducted extensive testing for the presence of formaldehyde in the locations where the new Corcraft furniture had been introduced. To further confirm that the desks were a source of the formaldehyde gas, the County placed four new desks from the same order (desks which had not previously been unwrapped) in a vacant library building and measured the airborne quantity of formaldehyde. The tests they employed included the Dragger test that Mr. Hall had initially used and a variety of more sophisticated means. In the air near the desks, the tests revealed readings ranging from 0.1 parts per million to undetectable. Inside the desks, the readings generally ranged between 0.6 parts per million and 0.1 parts per million (Exhibits 3 and 4).

At some point in 1989, 144 of the new desks that had been deployed were removed from the Civic Center and the Greystone Building. They were relocated to the Onondaga County library facility so that they could "out-gas" or release any formaldehyde gas in a well-ventilated, unpopulated environment. They remained in the vacant building from July 1989 until 1991. They were then redeployed in the Greystone Building and on the 2nd, 7th and 8th floor of the Civic Center (
see, Exhibit 5). The remaining desks that OCDSS purchased, which had never been opened or deployed, were returned to Corcraft.
When OCDSS took delivery of the 1989 Corcraft desks, Decedent was working on the 5th floor of the Civic Center in the Adult Protective Services Division. She apparently believed that she received a formaldehyde-exuding desk from the 1989 shipment. At trial, she recalled being issued a wooden seven-drawer double pedestal desk when she started working in the Division in 1988. She testified that she worked at this desk until early 1989 when her desk and the desks of two or three of her co-workers received were replaced. According to Decedent, the new desk she received was similar to her original desk, except that it emitted a foul chemical odor when the drawers were opened. She testified that the odor caused her to suffer headaches, nausea, breathing problems and chest pains. Decedent said that she kept this desk until September 1989, when she complained about it to OCDSS and obtained a note from her doctor asking OCDSS to replace the desk. She then missed several days of work at her doctor's direction. When she returned, there was a wooden desk at her work station that looked like the new desk she had previously been using, but did not exude a foul odor.

Decedent's former supervisor, Patricia Sandro, contradicted Decedent's recollections. She testified that no new desks were deployed on the 5th floor in 1989. According to Ms. Sandro, the desk Decedent was using in 1989 was the same desk she had when she started working for Adult Protective Services in 1988. Ms. Sandro believed that it had arrived on the 5th floor in 1986 or 1987. When asked on cross-examination how she could be so clear about the origins of Decedent's desk, Ms. Sandro explained that all but a few of the desks on the 5th floor were made of metal. Therefore, she had a rather specific recollection of the time when the wooden desks used by Decedent and a few of her coworkers were delivered to the 5th floor. Ms. Sandro also explained that the formaldehyde exposure issue made the 1989 Corcraft desks very controversial, particularly on the 7th and 8th floors where many of the desks were deployed. Because of the controversy generated by the new Corcraft desks, Ms. Sandro firmly believed that she would have remembered if any of the 1989 desks had been located in the area she was supervising.

Ms. Sandro also recalled that when the problems with the new shipment of desks first arose on the eighth floor, Decedent and a coworker, Mary DeSolo, complained about their desks. Without objection from counsel, Ms. Sandro testified about a conversation between the Director of Social Services and the two women. She remembered the director telling Decedent and DeSolo that their wooden desks had been with OCDSS for a long time and were not part of the shipment that had the formaldehyde problems. He also offered to replace the desks if it would make the women more comfortable, but Ms. Sandro recalled that Decedent decided to stick with her wooden desk. Several months later, however, when a coworker who was having respiratory problems asked for a new desk, Decedent asked to have her desk changed too. OCDSS removed the two desks to a conference room where they remained for a while, and then put them back in the 5th floor office where, according to Ms. Sandro, people are still using them. I found Ms. Sandro to be a knowledgeable and credible witness.

Records of the Public Employee Safety and Health Bureau show that two wooden desks were removed from the 5th floor office area between September 12 and September 15, 1989, and relocated to a closed conference room for storage (Exhibit 8). It is apparent from all of the evidence that one of those desks belonged to Decedent. On September 26, 1989, a Bureau hygienist named Kevin M. Cox, took air samples from the conference room in the office where Decedent worked and in the conference room to which the desks had been moved (
Mr. Cox did not testify at trial. However, the parties stipulated his report into evidence. It states that he collected air samples using OSHA Method 52 and then had them analyzed using gas chromatography at an American Industrial Hygiene Association accredited laboratory. The results revealed that the eight-hour weighted average formaldehyde reading was only .002 parts per million in the conference room where the desks were stored and .009 parts per million in the office where Decedent was working (
id.). These readings were well below the 1.0 maximum permitted by OSHA and the .016 limitation recommended by NIOSH.
The testimony of Dr. William Sawyer provided context for these readings. He was a toxicologist employed by the Onondaga County Department of Health from 1988 until 1993, and participated in the June 1989 formaldehyde investigation at the Civic Center and Greystone Building. He testified that the reading of .009 (but not the reading of .002) was "somewhat elevated." According to Dr. Sawyer, the readings that the County typically recorded on the 8th after it increased the ventilation in June 1989 were 0.0. He also pointed out that Mr. Cox's evaluation reflected the quantity of formaldehyde in the room air, which was not necessarily the same as the formaldehyde content at breathing level above the desk. On cross-examination, he acknowledged that the County Health Department's equipment had a detection limit in the range of .003 to .007, and therefore would have been unable to even detect the .002 reading recorded by Mr. Cox on the 5th floor conference room where the desks were stored. In other words, Dr. Sawyer was not able to say that the .002 reading recorded by Mr. Cox was elevated above the "background" reading one would ordinarily find in the Civic Center or in the air outside the Civic Center.

Dr. Sawyer, like Ms. Sandro, believed that there were some air quality complaints on the 5th floor of the Civic Center in June 1989. However, none of the records suggest that the State or the County conducted testing on these floors during this period of time, and thus it would be difficult to conclude from his recollection that Decedent's 5th floor desk was part of the offending shipment. Dr. Sawyer acknowledged that he had no idea of the age of the 5th floor desks tested in September 1989 by Mr. Cox and said that the County removed all of the desks from the recent shipment after the formaldehyde issue became known in June, 1989.

Decedent's physician, Dr. Polachek, evaluated her on September 12, 1989 for complaints of headaches and chest pains. He testified that she told him that she had been exposed at work for the last four to five months to a "new desk which ‘exudes formaldehyde,' according to her" (Exhibit 5). He conducted a physical examination and found that the results were unremarkable. He concluded that she had "generalized symptoms [of] questionable etiology" that might be secondary to formaldehyde. He prescribed Naprosyn for her chest aches and told her to return in three weeks for a complete physical examination. He wrote a note asking OCDSS to have "all new desks with possible formaldehyde fumes removed from her work area" (Exhibit 67). The next day, at her request, he wrote a note excusing her from work until September 15 (Exhibit K, p. 6).

Ten days later, on September 25, 1989, Decedent called Dr. Polachek and reported a cough with congestion, green phlegm and very achy back and ribs. He prescribed antibiotics. He then saw her again for a follow-up on October 13, 1989. On this date, about four weeks after OCDSS removed Decedent's desk (
see, Exhibit 8), she complained of pain on the right side of her chest, her lower back and her right calf and a slight cough. Dr. Polacheck conducted a physical examination and testified that the results were largely unremarkable, but his notes suggest that Decedent was anemic (Exhibit K, p. 10). He concluded that she had been suffering from bronchitis, which was improving. "There was a question in [his] mind," he testified, whether the bronchitis had been secondary to "an exposure to a toxin, possibly formaldehyde." Without visiting Decedent's office or taking any other steps to determine whether she had actually been exposed to excessive quantities of formaldehyde, he filed a C-4 with the Workers' Compensation Board dated October 24, 1989, suggesting that her bronchitis and achiness. and her absence from work between September 12 and September 22 were attributable to "breathing in toxic fumes, possibly formaldehyde" (see, Exhibit 70).[3] He based his diagnosis entirely upon the history Decedent gave him. He did not see her again until February 1990, when he concluded that she was suffering from sinusitis. This was five months after OCDSS removed the desks from Decedent's office and nine months before she was diagnosed with multiple myeloma. Both the sinus problems and the bronchitis, Dr. Polacheck testified, were consistent with formaldehyde exposure.
On cross-examination, Dr. Polacheck acknowledged that he practiced family medicine, had no expertise in the effects of formaldehyde or multiple myeloma and that he is not board certified in oncology. He also acknowledged that Decedent had a history of smoking. Finally, he admitted writing a letter on Decedent's behalf about her cancer and her alleged formaldehyde exposure (Exhibit K, p. 87). The operative part of that letter, he agreed, was that an exact causal relationship between Claimant's multiple myeloma and formaldehyde would be impossible to prove.

In May 1993, after she had been diagnosed with cancer, Decedent was evaluated by an allergist based in Montrose, Pennsylvania named Dr. Miller. Dr. Miller died before the trial. However, his report and Decedent's testimony described his findings. He obtained a history from Decedent which included her claim that her desk was exposing her to dangerous quantities of formaldehyde (
see, Exhibit C). Decedent recalled that he performed a skin test. He told her that she was very sensitive to formaldehyde and needed to avoid it and other chemical substances as much as possible (see, id.). There was no evidence, however, to suggest that the sensitivity to formaldehyde he observed was the result of an exposure to the substance. Moreover, if a formaldehyde exposure was responsible for Decedent's sensitivity, then it would be difficult to conclude that her desk was necessarily the source. In August 1992, some nine months before Dr. Miller's test, Decedent moved to a manufactured home which, she testified, was "full of formaldehyde." She was still living in that home at the time of the trial.[4]
Decedent also produced evidence suggesting that some of the formaldehyde gas that was exuded by the desks on the 7th and 8th floors of the Civic Center would have migrated to the 5th floor of the Civic Center. She called Mr. Ian Shapiro, whose Ithaca-based consulting firm specializes in heating, cooling and air conditioning research and performs indoor air quality assessments. Mr. Shapiro testified that there is a universal phenomenon known as the stack effect which causes air to migrate downward through stairwells, elevator shafts and utility conduits during warmer weather. He said that there was no doubt in his mind that airborne contaminants on the 7th and 8th floors of the Civic Center would reach the 5th floor through the stack effect, and estimated that the formaldehyde levels on the 5th floor would be between 10% and 40% of the levels found on the 7th floor of the building.

On cross-examination, Mr. Shapiro admitted that he did not visit the 5th, 7th or 8th floors of the Civic Center at all, that he had not reviewed the plans of the building and had no personal knowledge of the design of the Civic Center HVAC system. He also admitted that his conclusions depended to some degree upon the disparity between the indoor and outside temperatures during the time in question, but said that he had made no effort to determine what the actual temperatures were during the period in question.

IV. Conclusions Regarding Decedent's Alleged Exposure
To prevail on her claim under either a negligence or product liability theory, Decedent had to show by a preponderance of the credible evidence that she was exposed to formaldehyde which derived from one or more of Defendant's desks, and that the formaldehyde was capable of causing, and actually did cause, her multiple myeloma (
see, e.g., In re "Agent Orange"Product Liability Litigation, 611 F Supp 1223, 1250, affd 818 F2d 187, cert denied 487 US 1234; Zwillinger v Garfield Slope Housing Corp. (1998 WL 623589, 9 [EDNY]; Rutigliano v Valley Business Forms, 929 F Supp 779, 783 [D NJ 1996]; see also, Schimmenti v Ply Gem Industries 156 AD2d 658, 660; Finkelstein v Chevron Chemical Co., 60 AD2d 640; In re Love Canal Actions, 145 Misc 2d 1076).
Based upon the evidence presented at trial, I conclude that Decedent failed to demonstrate that she was exposed to formaldehyde that can be traced to a Corcraft desk. The air quality test performed in the vicinity of Decedent's desk in September 1989 yielded a formaldehyde reading of 0.002 parts per million, a reading that Decedent's expert, Dr. Sawyer, was not able to say was an elevated one and that was well below the threshold levels established by OSHA and NIOSH. The reading of 0.009, also well below those threshold levels, that was taken of Decedent's work area more than eleven days after her desk was removed was actually higher, suggesting that the origins of any formaldehyde gas in the work area might be traceable to a source other than Decedent's desk.

I conclude that it would be inappropriate to use the formaldehyde readings recorded on the 7th and 8th floor of the Civic Center in June 1989 to infer that Decedent's desk exuded dangerous quantities of formaldehyde gas when she first received it. After listening to Decedent's testimony and the testimony of Decedent's supervisor, Ms. Sandro, I was convinced that the wooden desk that Decedent used prior to September 12, 1989 was one that had been delivered to the 5th floor in 1987 or 1986. The fact that Ms. Sandro did not particularly like Decedent does not convince me that her testimony is not credible. It would be inappropriate to conclude that a desk that had been manufactured in 1987 or 1986 would emit the same quantities of formaldehyde gas in June 1989 as a desk manufactured in 1989, as there is no proof in the record upon which I could base such a conclusion. Indeed, Dr. Sawyer, who based his conclusions about Decedent's exposure upon 7th and 8th floor data, acknowledged that this was a valid approach only if her desk came from the 1989 delivery. Decedent testified that she was assigned the new, offending desk in "early" 1989 and that it was replaced in September of that year; however, Dr. Sawyer and others indicated that the new desks were either removed for "outgassing" or returned to Corcraft in June. Based on the testimony of Ms. Sandro and on the low level of formaldehyde measured in the room that contained the desk removed from Decedent in September, I conclude that her desk was not one of the lot of new desks. There is no evidence that Decedent had any other desk during the time period in question or that she was working in close proximity to any of the new desks.

I placed no reliance upon the expert testimony offered by Mr. Shapiro about the manner in which formaldehyde fumes may have migrated throughout the building. While I believe that he had the expertise to analyze the migration of toxins within the Civic Center building, the methodology that he employed in this case was unscientific. The conclusions that he reached seemed to be based upon little more than speculation.

I also disregarded the medical testimony offered by Dr. Polachek about the origins of Decedent's alleged formaldehyde exposure because he based that conclusion entirely upon the medical history given by Decedent and never did a differential diagnosis, which would have eliminated other possible sources of chemical exposure. And as described above, the report of Dr. Miller was not probative on the issue of Decedent's exposure for two reasons: (1) there was no connection drawn between sensitivity to formaldehyde and exposure; and (2) Decedent's testimony suggests that she was exposed to excessive formaldehyde in her new home between the time she left her job and the time of Dr. Miller's test.

V. Causation

Even if it had been proven that Decedent was exposed to a high level of formaldehyde, and that Defendant were responsible for that exposure, it would still be necessary to establish by a preponderance of credible evidence that such exposure led to the development of her multiple myeloma and/or that it caused other physical injury (
Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550). Without proof that a defendant's negligence was a proximate cause of the injury, liability cannot be imposed (Torres v City of New York, 44 NY2d 976; Lichtenstein v Montefiore Hosp. and Medical Center, 56 AD2d 281).
In evaluating medical testimony that seeks to establish a causal connection between certain events and the development of a disease that has no single, proven cause, I am mindful that the legal standard that must be met does not require the equivalent of a scientific demonstration of cause and effect but, rather, one of "practical probability" (
Harris v Kem Corp., 1989 WL 200446 [S.D.N.Y.], quoting Matter of Miller v National Cabinet Co., 8 NY2d 277, 289; see also, Matott v Ward, 48 NY2d 455). Moreover, the fact that scientific expert witnesses may use terms like "could produce," "it is possible," or similar expressions does not negate the value of their testimony as long as their "opinion evidence is 'fortified by detailed explanation and other facts in the record which add to its reasonableness and probable correctness'" (Matter of Miller v National Cabinet Co., 8 NY2d, supra at 282, quoting Zaepfel v du Pont de Nemours & Co., 284 App Div 693, 696). Unlike scientific fields, the law's concern is "whether tort and injury bear a close enough relationship to make it equitable to impose financial responsibility upon a defendant" (Matott v Ward, 48 NY2d, supra, at 460). Thus, the fact that a disease is of unknown or uncertain etiology does not necessarily preclude a finding that there is sufficient causal connection in a specific instance (Benenati v Tin Plate Lithographing Co., 29 AD2d 805).
The threshold standard for admissibility of novel scientific evidence in New York State is derived from
Frye v United States (293 F 1013 [1923]). Under this standard, innovative
scientific evidence must be based on principles and procedures that have gained general acceptance in the field. They need not be unanimously endorsed by the scientific community but must at least be generally accepted as reliable (Selig v Pfizer, Inc., 185 Misc 2d 600, 605). With respect to causation, there must be "a generally accepted basis in the scientific community" to support a medical expert's opinion (Kaczor v Vanchem, Inc., 262 AD2d 1041, 1041; see also, Matter of Miller v National Cabinet Co., supra, at 284).
At one time, liability in "cancer cases" was found primarily in instances where the defendant caused some type of trauma to a part of the body where cancer already existed and there was proof that the trauma exacerbated the condition almost immediately (
id., at 285-286). There are also cases, however, in which chemical exposure has been found to be the cause of less immediately apparent medical conditions. In Zaepfel v du Pont de Nemours & Co. (284 App Div 693, supra), a chemist who was exposed to benzol and other benzine derivatives over a thirteen-year period was diagnosed as suffering from aplastic anemia, and the cause of that disease was attributed to the chemical exposure by the Workers' Compensation Board. Although the scientific evidence was contradictory, the Third Department affirmed the Board's ruling, noting that a related chemical, benzine itself, was "accepted universally" as a cause of aplastic anemia; that other benzine ring compounds were known to affect bone marrow production; that there was some testimony supporting the proposition that benzol could cause aplastic anemia; and that there was no other reasonable cause to explain why a young person, with no unfavorable medical history, had contracted the relatively rare disease. Where slow-growing cancers or other illnesses are involved, consideration must also be given to the usual period of latency before the disease becomes manifest (Matter of Miller v National Cabinet Co., 8 NY2d, supra, at 286-287); the level of exposure or dosage that has been accepted or proven to be harmful to humans (see, State of New York v Fermenta ASC Corp.,166 Misc 2d 524, 527); the existence of other possible causes for the disease or illness (Vincent v Thompson, 50 AD2d 211); and the characteristics and health history of the affected individual (Matter of Castiglione v Mechanical Technology, 227 AD2d 865, 867).
Decedent called three experts to establish that formaldehyde exposure can cause multiple myeloma and thus was the "probable" cause of her illness. These witnesses were: (1) Dr. Sawyer; (2) Dr. Anthony Rigle, a Syracuse area forensic pathologist who, like Dr. Sawyer, once worked for Onondaga County; and (3) Dr. Michael Lax, a specialist in occupational medicine who began seeing Decedent in July 1992 and testified at one of her Workers' Compensation hearings. Each of these experts drew upon three sources of information to reach the conclusion that formaldehyde was capable of causing multiple myeloma: (1) experiments which tested the effects of formaldehyde exposure on laboratory rats and mice; (2) epidemiological studies of persons whose employment exposed them to formaldehyde; and (3) research that showed that exposure to formaldehyde was associated with DNA mutations in humans.

Dr. Sawyer concluded that formaldehyde exposure contributed to the induction of Claimant's multiple myeloma. This conclusion was based, in part, on the fact that the disease is so rare in persons of her age group. He testified that black females in their early 40s, such as Decedent was at the time of diagnosis, have an incidence rate of three in one hundred thousand or less (
see, Exhibit 52) and that less than two per cent multiple myeloma patients are diagnosed by the age of 40. He also found the sequence of Decedent's symptoms to be informative because she first complained of bronchitis and sinusitis, which would be consistent with an illness caused by inhaling toxic substances. On cross-examination, Dr. Sawyer acknowledged that his conclusions about the cause of her illness were based on the assumption that Decedent was working at a new Corcraft desk and that there were other new Corcraft desks in her working area on the fifth floor. Specifically, he understood her to have been exposed for two months at a 0.1 ppm level in her breathing zone.
To support his view that formaldehyde was the causative agent, he noted that the gas has been designated as a possible human carcinogen by NIOSH (Exhibit 40); that studies of workers exposed to "similar" levels of formaldehyde show a standard mortality ratio that is from 1.7 to 9.5 times the normal rate; and that other studies, in both animals and humans, have determined that formaldehyde can cause DNA damage to lymphocyte cells, the cells that produce multiple myeloma.
In particular, Dr. Sawyer relied on a 1993 article entitled Cytogenic Effects of Formaldehyde Exposure in Students of Mortuary Science (the "Suruda Study"), published by Anthony Suruda and associates and funded by NIOSH and the National Cancer Institute (see, Exhibit 42). Although this study did not report on the incidence of multiple myeloma among those exposed to formaldehyde, he considered it significant because it revealed damage to human lymphocyte DNA after exposure over an 85-day span to "moderate" (0.3 ppm) levels of formaldehyde, thus making the relationship between formaldehyde and human multiple myeloma "biologically plausible."
Other studies consulted by Dr. Sawyer (charted on Exhibit 72) found multiple myeloma to be a recognized occupational disease of firefighters, who are exposed to the gas and to other contaminants in their work, and that garment workers exposed to formaldehyde at the 0.15 ppm level exhibited a higher-than-normal incidence of lymphopoietic cancers, including multiple myeloma. In one study (Exhibit 41), a "marked excess of multiple myeloma" was found among black embalmers, who were exposed to high quantities of formaldehyde (up to 3.99 ppm in low ventilation). Studies of this nature, along with proof of cause in animal studies and "biological plausibility," are, he testified, the type of information on which toxicologists base their determinations about causation

Dr. Rigle, a forensic pathologist, provided an elaborate explanation of the way in which multiple myeloma develops and the toll it takes on the human body. The disease is caused by a major DNA injury occurring in the early development of B-cells from the lymphoid stem cells, during a phase when there is supposed to be only maturation, no genetic change, within the cell. B-cells produce immunoglobulin, essentially a "human antibiotic," and when they have fulfilled their function, they die. In multiple myeloma, the lymphoid stem cell is hit by a carcinogen and instead of producing healthy B-cells, which serve their antibiotic purpose and then die, it produces myeloma cells that continue to replicate, creating an immortal cell line that eventually simply "clogs up" vital organs, particularly the kidneys, heart and tongue, and, in addition, suppresses the other cell lines. Typically, this could not occur because when genetic injury occurs to a cell during the formation stage, it will be repaired by natural processes that are, in essence, "DNA repair kits."

Formaldehyde, Dr. Rigle testified, causes the initial genetic injury, causes point mutations that result in an uncontrolled proliferation of the cell, suppresses the growth of other cells, and damages the DNA self-repair mechanism. The Suruda Study, which he stated "clearly shows that microneuclei and intracellular changes were noted in a population exposed to formaldehyde," was again given as one of the principal studies supporting this conclusion about the effect of formaldehyde. Although they are not multiple myeloma cells, he acknowledged, microneuclei are evidence that formaldehyde can reach and impact lymphoid stem cells. Previously, the only solid evidence linking formaldehyde and cancer involved nasal and nasal pharyngeal cancer. If formaldehyde is able to enter the bone marrow, which is the location of lymphoid stem cells, it would pass either through the skin to the blood or be inhaled through blood vessels in the nasal passage and respiratory alveoli. In response to a question from the court, Dr. Rigle stated that other substances that are accepted as causing multiple myeloma are benzine and asbestos.

When Decedent's cancer was diagnosed in late 1990, an analysis of her bone marrow showed a marked increase of segmented neutrophils, which Dr. Rigel states was consistent with chronic antigenic stimulation, a sign of prolonged exposure to a particular chemical. This feature and the fact that there were atypical lymphocytes in Decedent's peripheral blood and bone marrow strongly support the conclusion that the myeloma was chemically induced. The type of protein produced, a light chain lambda, is one that is exceedingly rare for her age group, providing further support that the myeloma was not part of a natural disease progression. Dr. Rigle also found it significant that there was no history of cancer in Decedent's family and that an x-ray taken in October 1989 showed no lytic bone lesions, a signal feature of multiple myeloma, suggesting that the disease had not developed at that time. Explaining that making a causal connection also requires consideration of temporal considerations, Dr. Rigle concluded that chronic exposure to formaldehyde in mid-1989 would be consistent with diagnosis of the disease approximately a year and a half later, given the time it would take for there to be enough cell replication to cause symptoms that would lead to a diagnosis. Dr. Rigle's conclusions about the cause of Decedent's cancer were based on Dr. Sawyer's toxicological analysis and therefore on the assumption that Decedent had worked within inches of a new desk built of formaldehyde-soaked particle board for a minimum of 45 days at an exposure level above NIOSH threshold level.

Dr. Lax, a physician specializing in occupational medicine, testified that he met Decedent in 1992, at which time she reported having had a number of adverse symptoms, primarily when she was at work, beginning in April of 1989, at which time she was issued a new desk, and ending, for the time, in September of that year after she was away from work for a few days and three desks, including hers, were removed from her work area. The complaints she described, he found to be consistent with formaldehyde exposure. As with Dr. Rigle, Dr. Lax depended on the information provided by Dr. Sawyer regarding Decedent's actual exposure to formaldehyde. Unlike the other doctors, however, he stated that his opinion regarding the causation of Claimant's cancer would not be changed if he were to assume that she had an older desk, even one as much as a year old. He also indicated that he could find nothing else in Decedent's exposure history that might have explained the development of this relatively rare cancer in such a young person.

As to the evidence connecting formaldehyde to multiple myeloma, Dr. Lax pointed to five studies that found a greater than normal risk of leukemia with occupational exposure to the substance. This, he concluded, proved that formaldehyde can reach the blood-producing organ, the bone marrow, where both leukemia and multiple myeloma develop. He also referenced studies of animals exposed to formaldehyde and, as Dr. Sawyer stressed, the "biological plausibility" of formaldehyde acting on cells in such a way as to cause changes in their DNA. These considerations also pointed to a causal link between the substance and both DNA mutation and the disease of cancer, although admittedly the animal studies confirmed primarily cancer of the nasal pharyngeal system. When questioned about other possible causes of multiple myeloma, Dr. Lax mentioned ionizing radiation, benzine, other organic solvents, herbicides, certain insecticides, some metals and asbestos, as well as the specific working situations noted above: morticians, firemen, garment workers. He also noted that the disease is more prevalent in blacks than whites and slightly more frequent in men than in women.

The Suruda Study, on which all experts place considerable reliance, followed the progress of 29 students who were enrolled in a college of mortuary science and required to take a course in embalming. The study measured the effects of their exposure to formaldehyde and other embalming fluids by taking blood samples and tissue swabs from their noses and mouths. Although the authors found an increase of 28% in the frequency of micronucleated lymphocytes, they were careful to point out that "[t]he findings of changes in oral and nasal epithelial cells and peripheral blood cells does not indicate a direct mechanism for carcinogenesis..." (
see, Exhibit 42 at 457, 459). A cursory review of the study also reveals that for certain periods of time the students endured much more significant exposures to formaldehyde than the exposure levels alleged by Decedent. The students performed 144 embalmings, each lasting an average of 125 minutes, during which the average air concentration of formaldehyde was 1.4 ppm. There were also shorter periods of peak exposure, with readings of 6.6 ppm, associated with leaks of embalming fluid and manual application of embalming gels (see, Exhibit 42, p. 455). Moreover, the students wore a type of latex glove that formaldehyde has been reported to penetrate, yet no measurements were taken to determine the degree to which the students were absorbing liquid formaldehyde through their hands (id. at 454).
I cannot conclude that the Suruda Study provides substantial, authoritative support for the conclusions reached by Dr. Sawyer and the others experts. The degree of exposure to formaldehyde sustained by the students involved in that research was far greater than that sustained by anyone in the Civic Center, even workers on the seventh and eight floors. Even so, the results of the study were several critical steps away from drawing a causal connection between formaldehyde exposure and multiple myeloma.

In fact, none of the workers in any of the studies cited by the experts had desk jobs similar to Decedent's, and those other workers were also exposed to more than one potentially toxic substance. The firefighters, for example, were simultaneously exposed to chemicals like asbestos, benzine, PCB's and xylene, and the funeral directors and garment workers are also exposed to other chemical substances (
see, Exhibit 39 at 869 [noting that it is "not clear at present whether the excess cancer mortality for leukemia, brain and colon cancer among (pathologists, anatomists and morticians) is due to formaldehyde or to exposure to some confounding toxicant"]).
It has been suggested that for epidemiological evidence to be used to support a finding of specific causation "(1) the plaintiff's exposure must be similar in duration, amount and manner to the exposure in the study;... (3) the substance or material to which the plaintiff claims exposure should be the same as the substance or material studied;... [and] (5) the plaintiff's evidence eliminates, or substantially reduces, the probability that a confounding factor caused the disease" (FJC Manual, "Guide to Epidemiology," B. Black, J.A. Jacobson, E.W. Maderia, Jr. [West Group, 1977]). The first, and most critical, of these factors is not present here, nor does the evidence eliminate the possibility that a confounding factor caused Decedent's disease. The studies do suggest that formaldehyde gas may have the ability to impact bone marrow, as well as on the nasal-pharyngeal system, and that such exposure may in some instances have impact on cells within the bone marrow. However, the levels of exposure involved are far different from that experienced by Civic Center office workers, even those on the floors to which many new desks were assigned, and each of the populations studied were exposed to multiple toxins, permitting the inference that others had caused the observed effect.

Notably, none of the expert witnesses had information, or even informed opinion, about the amount of exposure that it would take for the effect of formaldehyde to cause the DNA injury and thus to potentially create the multiple myeloma (
see, Matter of Miller v National Cabinet Co., 8 NY2d 277, 282, supra). Nor were they able to show a statistical correlation between exposure to formaldehyde, even at quite high levels, and the development of multiple myeloma (id ["the only possible basis for drawing [such] an inference * * * would be statistics indicating that in many instances leukemia follows benzol exposure without knowing why"]). Thus, to the extent, which is questionable, that these studies might be considered to establish a connection between exposure to formaldehyde and impact on the DNA of lymphocyte cells, there is still insufficient evidence from which to conclude that, were one to assume the level of exposure posited by Dr. Sawyer, such effect "probably" caused Decedent's multiple myeloma. This holding should not be interpreted by anyone as a ruling of scientific nature, either that formaldehyde cannot cause multiple myeloma or that Decedent's tragic disease was caused by something else. The question that must be decided by courts in these cases is whether the hypothesized cause and the injury suffered "bear a close enough relationship to make it equitable to impose financial responsibility upon a defendant" (Matott v Ward, 48 NY2d 455, 460, supra). On the evidence before me, I do not find a sufficient link to impose liability.
In summary, I find that the evidence presented at trial failed to establish that Decedent was issued one of the new Corcraft desks in 1989 and failed to establish that she was exposed to unusually high amounts of formaldehyde from any source related to the desks during the time period in question. In addition, even if one were to assume that she had been exposed to formaldehyde gas for the length of time and at the level posited by Dr. Sawyer, the expert scientific testimony and evidence failed to establish that such exposure was a "probable" cause of her cancer.

While I am bound by the rules of law regarding the imposition of liability and they must govern this decision, it should not be seen as reflecting to any extent on the sincerity of Mrs. Morrell's belief as to the cause of her illness or as minimizing in any manner the tragic disease which caused her death. In this case it will never be known with certainty the genesis of her illness, be it exposure to formaldehyde or some other insidious causation. The courage that Decedent demonstrated by attending and testifying at this trial was moving beyond expression. My sympathies go to her family, for they have endured much throughout this ordeal. As a judge, however, I am charged to follow the law and rules and apply them to the hard facts as presented at trial by the very able trial counsel and, because of that, must reach the conclusion contained herein. The claim is hereby dismissed.

All motions not previously ruled upon are hereby denied.


September 27, 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]Decedent died on September 5, 1999, about five months after the trial concluded. Mr. O'Connor was substituted as Claimant by Decision and Order filed on October 19, 2000.
  2. [2]Defendant's motion to dismiss the claim as untimely was denied because the facts of this claim fall within the requirements of CPLR 214-c(4) (Motion No. M-53169, Nov. 20, 1996, Midey, J.).
  3. [3]Decedent filed for and received Workers' Compensation benefits based on allegations that the exposure to formaldehyde from the Corcraft desks caused her cancer and other illnesses. The decision of the Workers' Compensation Board necessarily found that she had been exposed to excessive amounts of formaldehyde and that that exposure had caused her illnesses, and these findings were affirmed by the Third Department (Matter of Morrell v Onondaga County, 238 AD2d 805, lv denied 90 NY2d 808; Matter of Morrell v Onondaga County, 244 AD2d 695). Because Defendant was not a party to those proceedings, the holdings regarding exposure and causation are not binding in this action and may not form the basis of any decision made here (Falsitta v Metropolitan Life Ins. Co., 279 AD2d 879).
  4. [4]Dr. Miller also stated in his report that Decedent's claimed exposure to formaldehyde might have been responsible for her multiple myeloma. However, one of Decedent's witnesses, Dr. Sawyer, testified that Dr. Miller lacked the qualifications to make that kind of determination.