Nonnon v. City of New York

Andrias, J.

(dissenting). It is axiomatic that plaintiffs in a toxic tort action must prove that their injuries were caused by defendant’s negligence in exposing them to toxic substances. It is also fundamental that, in opposing a motion for summary judgment dismissing a complaint for failure to state a cause of action, plaintiffs must, in nonconclusory fashion, make out a prima facie case and raise a triable factual issue. Plaintiffs have attempted to do so through expert opinion.

Because plaintiffs’ epidemiological and toxicological experts failed to use generally accepted scientific methodology, their opinions that the Pelham Bay landfill was a substantial contributing factor to the acute lymphoid leukemia that occurred in all but two of the plaintiffs lacked a proper foundation and was therefore inadmissible as evidence. For that reason, as well as plaintiffs’ failure to present any evidence establishing a causal relationship between the toxic substances deposited in the landfill over the years and the acute lymphoid leukemia or, in two instances, Hodgkin’s disease, from which they suffered, the City’s motion for summary judgment dismissing these actions should have been granted.

The long-recognized rule of Frye v United States (293 F 1013 [DC Cir 1923]), as interpreted by the Court of Appeals in People v Wesley (83 NY2d 417 [1994]), requires that expert testimony be based upon a scientific principle or procedure which has been “sufficiently established to have gained general acceptance in the particular field in which it belongs” (id. at 423, quoting Frye, supra at 1014 [emphasis omitted]). “The Frye ‘general acceptance’ test is intended to ‘protect[ ] juries from being misled by expert opinions that may be couched in formidable scientific *111terminology but that are based on fanciful theories’ ” (Styles v General Motors Corp., 20 AD3d 338, 342 [2005, Catterson, J., concurring] [citation omitted]). While novel scientific evidence requires a determination as to its reliability (Wesley, 83 NY2d 422), even where Frye has been satisfied or the scientific evidence is not novel, the admissibility of the specific evidence remains to be determined. The burden of establishing admissibility rests on the proponent of the expert opinion.

“Once Frye has been satisfied, the question is ‘whether the accepted techniques were employed by the experts in this case’ (People v Middleton, 54 NY2d [42,] 50). The focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial. The trial court determines, as a preliminary matter of law, whether an adequate foundation for the admissibility of this particular evidence has been established” (Wesley, 83 NY2d at 429).

Here, in denying the City’s summary judgment motion to dismiss the complaints on statute of limitations grounds and for failure to state a cause of action, the motion court failed to determine whether the opinions of plaintiffs’ experts, that there is a high probability that plaintiffs’ illnesses were caused by their continued and prolonged exposure to the Pelham Bay landfill, satisfy the requisite standard for admissibility. Indeed, the court improperly shifted the burden of proof to the City when it found that the City had not provided “any evidence to indicate that the plaintiffs did not get their diseases from the landfill.” (1 Misc 3d 897, 899 [2003].) The court compounded its error when it further found that the City offered no evidence in support of its assertion that plaintiffs have been unable to assert a causal connection between the landfill and their diseases.

The question here is not whether epidemiology or toxicology are novel sciences, but whether the opinions of plaintiffs’ experts, that there was a causal connection between plaintiffs’ alleged exposure to hazardous materials in the Pelham Bay landfill and plaintiffs’ acute lymphoid leukemia and Hodgkin’s disease, are based upon generally accepted techniques within their disciplines. “ ‘[G]eneral acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion. Rather it means that those espousing the theory or *112opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions’ ” (Zito v Zabarsky, 28 AD3d 42, 44 [2006]). Moreover, whether we are dealing with scientific evidence or not, where an expert cites no authority, treatise, standard, article, or other corroborating evidence to support his assertions and “the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation . . . the opinion should be given no probative force and is insufficient to withstand summary judgment” (Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 9 [2005] [citation omitted]).

As recognized by the Second Department in Parker v Mobil Oil Corp. (16 AD3d 648, 651 [2005], lv granted 6 NY3d 702 [2005]), “although federal courts use the broader Daubert test (see Daubert v Merrell Dow Pharms., 509 US 579 [1993]) instead of the Frye standard (see Frye v United States, supra) in connection with determining the admissibility of scientific expert testimony, it is instructive to examine federal authority for purposes of discussion of accepted scientific methodology.” One such authority is the Reference Manual on Scientific Evidence (2d ed 2000) published by the Federal Judicial Center, which is intended to assist federal judges in recognizing the characteristics and reasoning of “science” as it is relevant in litigation and to aid them in dealing with such issues. The reference guides in the manual are not intended to instruct judges concerning what evidence should be admissible but are designed to facilitate the process of identifying and narrowing issues concerning scientific evidence by outlining the pivotal issues in the areas of science that are often subject to dispute. Among the scientific areas addressed are epidemiology and toxicology, the sciences relied upon by plaintiffs.

“Epidemiology focuses on the question of general causation (i.e., is the agent capable of causing disease?) rather than that of specific causation (i.e., did it cause disease in a particular individual?)” (Reference Manual on Scientific Evidence, Reference Guide on Epidemiology, at 336]). The authors emphasize that “an association is not equivalent to causation” (id.). As a final caveat, the authors state that “[e]pidemiology is concerned with the incidence of disease in populations and does not address the question of the cause of an individual’s disease. This question, sometimes referred to as specific causation, is beyond the domain of the science of epidemiology” (id. at 381).

Toxicology, on the other hand, is described as “the study of the adverse effects of chemicals on living organisms” (Reference *113Manual on Scientific Evidence, Reference Guide on Toxicology, at 403 [citation omitted]).

“There are three central tenets of toxicology, First, ‘the dose makes the poison’; this implies that all chemical agents are intrinsically hazardous— whether they cause harm is only a question of dose. Even water, if consumed in large quantities, can be toxic. Second, each chemical agent tends to produce a specific pattern of biological effects that can be used to establish disease causation. Third, the toxic responses in laboratory animals are useful predictors of toxic responses in humans” (id.).

In these nine consolidated actions commenced in 1991, 1992, and 1993, in which plaintiffs seek damages for personal injury or wrongful death, the City moved pursuant to CPLR 3211 and 3212 to dismiss the actions as barred by the statute of limitations (CPLR 214-c [3]) and for failure to state a cause of action. The City’s motion was based primarily upon an October 5, 1994 affidavit of an epidemiologist, Richard Neugebauer, submitted on behalf of the plaintiffs in Annunziato v City of New York (224 AD2d 31 [1996]), a case commenced in 1993 where, as here, residents or former residents of neighborhoods located near landfills on Staten Island sought to recover for personal injuries and wrongful death based on allegations that the diseases they suffered from were caused by exposure to toxic substances in the landfills. In opposition to the City’s motion for summary judgment dismissing the personal injury causes of action as untimely pursuant to CPLR 214-c (3) and (4), the Annunziato plaintiffs, who were represented by the same attorney that represents plaintiffs in this case, submitted Dr. Neugebauer’s affidavit. In his affidavit, Dr. Neugebauer stated that, although he and other members of an independent scientific committee were working on the hypothesis that toxic compounds released into the environment by the Staten Island landfills had caused and were causing an increased rate in cancer and other illnesses among residents living in proximity to those landfills, “it [was] not possible to arrive at any scientific conclusions yet.”

As pertinent to this appeal, the Second Department found that, in order to take advantage of the discovery rule set forth in CPLR 214-c (4), plaintiffs had to present evidence that they learned that harmful substances at the landfills caused their illnesses within five years after their illnesses were diagnosed. The Court found that the Annunziato plaintiffs were unable to *114satisfy this criterion since their own expert, Dr. Neugebauer, acknowledged that any link between the landfills and plaintiffs’ illnesses was still in the hypothetical stage (224 AD2d at 39).

In opposition to the City’s summary judgment motion in these actions, plaintiffs submitted an affidavit from the same Dr. Neugebauer, dated January 16, 2002, in which he now concluded that “[t]he Pelham Bay Landfill is to a reasonable degree of epidemiological certainty a cause of the increased rates of childhood acute lymphoid leukemia among the area residents . . . [and] was a substantial contributing factor to the acute lymphoid leukemia that occurred in the plaintiffs in this lawsuit.” He stated that he reached this conclusion after evaluating two epidemiological studies conducted by the New York City Department of Health, “An Evaluation of Childhood Leukemia in the Pelham Bay Area of the Bronx, 1988” and “Cancer Incidence in the Pelham Bay Area of the Bronx, January, 1994.” The 1988 study covered the years 1974-1985 and the 1994 study covered 1978-1987. Neither study found an elevation in cancer rates in the area surrounding the landfill.

Both studies were submitted to two independent scientific groups which criticized the 1994 report for failure to extend its analysis well into the 1990s; failure to examine cancer subtypes, specifically the importance of examining rates of acute lymphoid leukemia, not leukemia with all types combined; and, what Dr. Neugebauer refers to as “the questionable practice of adjusting for racial differences.” As a result, Dr. Neugebauer states that one critical difference between the study conducted by his team and the Department of Health studies was that his group extended the study to include data up to 1996. Thus, he contended, consistent with the expectation of one of the critics of the Health Department report, “evidence of increased cancer rates emerges when the study is extended to include data well into the 1990s. This finding is also consistent with current knowledge regarding the long latency period that characterizes most cancers.”

As to the earlier studies’ alleged failure to examine cancer subtypes, Dr. Neugebauer’s team limited its study to the specific type of cancer found in plaintiffs. Only by doing this can we properly evaluate if risk for the cancer found in the plaintiffs is increased by exposure to the DUMP” Finally, Dr. Neugebauer, again referring to the “questionable practice of adjusting for racial differences,” stated that the 1994 draft report’s handling of data on race was criticized because, while the adjustment was *115made for white non-Hispanic, black non-Hispanic, Hispanic and all others, there was no discussion of how the cases were assigned to these groups. As a result, “[i]n light of the critique by the NYS Cancer Registry of the uncertainties associated with race/ethnicity-adjustment and the substantial percent of cases missing data on race/ethnicity,” Dr. Neugebauer stated: “we do not perform any such adjustments.”

The City’s epidemiological expert, Dr. Jonathan Borak, in his opposing affidavit, stated, without contradiction, that a large body of peer-reviewed literature documents that the incidence of acute lymphoid leukemia differs independently according to age, sex and race: i.e., it is highest in children under five; male children have been consistently found to have higher incidence rates compared to females; and the disease is consistently more common in white than black children. In addition to finding Dr. Neugebauer’s affidavit incomplete since it presented insufficient information to allow a reader to understand his study and its methods, Dr. Borak stated, again without contradiction, that, as a result of Dr. Neugebauer’s admitted failure to consider the confounding factor of race, his study did not meet generally accepted epidemiological methodology. Dr. Neugebauer’s purported correction of his error in his reply affidavit, in which he claimed that adjustment for race made no difference in his statistical findings, again failed to meet generally accepted scientific standards since he persisted in providing insufficient information about his methods and incomplete information about his analysis. He also failed to actually analyze race and ethnicity code information about which he rendered opinions and his conclusions were not consistent with the multiple analyses performed by Dr. Borak using explicit, detailed, generally accepted methods, which analyses, unlike Dr. Neugebauer’s purported study, were provided to the court.

Plaintiffs also submitted affidavits from Jesse H. Bidanset, a toxicology expert, which, other than listing 59 substances from A (acetamide) to Z (zinc) and describing “a collection of chemicals the likes to which has never been simulated in a laboratory,” states: “While it is impossible to determine what effects each chemical has had due to its reaction with the other chemicals on the list it is to a toxicological certainty that the cumulative effect [ ] of combining all these chemicals is highly detrimental to human health.” Dr. Bidanset concluded that the presence of known carcinogens emanating from the landfill in the form of soil contamination “ha[s] been a cause of a greater *116than usual cancer, Leukemia and Hodgkin’s disease rate among neighbors to the landfill site. Specifically, the plaintiffs [sic] in this lawsuit.”

Diane Trainor, plaintiffs’ occupational and environmental safety and health expert, based her opinion on her review of mountainous documents and noted that “defendants in this lawsuit originally commissioned many of the studies I looked at.” The expert stated that nine known carcinogens (benzene, carbon tetrachloride, chloroform, ethylene dichloride, methylene chloride, perchloroethylene, trichloroethylene, vinyl chloride, and vinylidene chloride) have been found in the landfill and its emissions and that there is an abundance of research conclusively supporting the association between low-level exposure to toxic substances and the development of diseases, including leukemia and cancer. It is her opinion to a reasonable degree of environmental health certainty that the diseases found in the plaintiffs in this case were caused by their exposure to the landfill and its byproducts. Dr. Trainor also concludes that the City failed to control access to the working face of the landfill and that residents, including plaintiffs, were allowed to walk onto and around the landfill to fish and swim and were allowed to use the adjacent land for growing vegetables for their own consumption. However, she provides no factual basis for such conclusions.

The only evidence regarding plaintiffs’ exposure to the landfill and its contents is contained in their individual affidavits, which, in nonspecific and conclusory fashion, state, in most instances, that while their mothers were pregnant and after they were born they lived for some indeterminate time in “close proximity” to the landfill; that their mothers “often” brought them to play in Pelham Bay Park which is located adjacent to the landfill; that they “often” smelled odors emanating from the landfill “both in my home and throughout the neighborhood”; and that they “often traveled to City Island for dinner and special occasions.” Five plaintiffs reported that they swam or boated in Pelham Bay “on several occasions”; one plaintiff reported using horse manure from a stable that was very close to the landfill in his garden; and another stated that “we all ate locally grown fruits and vegetables.”

Plaintiffs’ medical expert Dr. Lanzkowsky concluded to a reasonable degree of medical certainty that plaintiffs were diagnosed with acute lymphoid leukemia and Hodgkin’s disease, an opinion not in dispute. He added that it has been known for *117almost a half century that benzene plays a causative role in leukemia. Again, as with Drs. Bidanset and Trainor, Dr. Lanzkowsky fails to even attempt to present any evidence of a dose-response relationship for any substance, carcinogenic or otherwise, in the landfill.

Plaintiffs argue that Drs. Trainor and Bidanset demonstrated that there were toxic levels of carcinogens in the landfill; that plaintiffs themselves provided evidence that they were exposed to these toxic levels; and that the plaintiffs developed the diseases which, according to the toxicological literature, are caused by these carcinogens. They argue that, if the requirement put forth by the City’s expert, Dr. Borak (i.e., “the expert should offer an opinion as to whether the dose to which the plaintiff was exposed is sufficient to cause the disease”) were accepted a plaintiff could never prove liability in an environmental toxic tort case. When the exposure, though chronic, comes by way of the air, the water and the soil, plaintiffs ask, how can the number of contacts ever be measured? The majority seemingly accepts this argument.

The majority contends that, to the extent the City challenges the methodology of Dr. Neugebauer’s study, which found an increased evidence of acute lymphoid leukemia in the population closest to the landfill, and his failure to account for racial distribution, these factors are properly the subject of cross-examination at trial, as they go to credibility and to the weight to be given to the evidence (see Wesley, 83 NY2d at 426-427). However, as previously noted, the question of whether Dr. Neugebauer’s methodology enjoys general acceptance in the scientific community is not for a jury to determine, but is a preliminary legal question for the court to decide.

As explained by Chief Judge Kaye in her concurring opinion in Wesley, the Court was unanimous

“in concluding that three inquiries are involved in the consideration of novel scientific evidence. The first — the Frye hearing — asks whether, theoretically, the accepted techniques, when performed as they should be, generate results generally accepted as reliable within the scientific community. . . . Next, a foundational inquiry must be satisfied before such evidence is placed before the jury: in each case the court must determine that the laboratory [here plaintiffs’ experts] actually employed the accepted techniques. This foundational inquiry also goes to *118admissibility of the evidence, not simply its weight (People v Middleton, 54 NY2d, at 45, 50, supra). Finally, infirmities in collection and analysis of the evidence not affecting its trustworthiness go to weight, to be assessed by the jury” (Wesley, 83 NY2d at 435-436).

In Parker v Mobil Oil Corp. (supra), a case directly in point, the plaintiff, a 17-year gas station attendant, sued three oil companies after he contracted acute myelogenous leukemia (AML) which his scientific experts opined was caused by his daily contact with and inhalation of gasoline and its vapors, both of which contained benzene, a known carcinogen. As in this case, the issue presented was to what extent the plaintiff was required to establish the precise level of his exposure to the carcinogen in order to establish that his disease was caused by it through a scientifically reliable methodology. The Second Department noted that a scientifically reliable methodology recommended by the World Health Organization and the National Academy of Sciences for drawing a sound cause and effect conclusion entails a three-step process:

“(1) a determination of the plaintiff’s level of exposure to the toxin in question, (2) from a review of the scientific literature, proof that the toxin is capable of producing the illness, or general causation, and the level of exposure to the toxin which will produce that illness (i.e., the dose-response relationship) must be ascertained, and (3) establishment of specific causation by demonstrating the probability that the toxin caused the particular plaintiffs illness, which involves weighing the possibility of other causes of the illness. This three-step process has been acknowledged in numerous cases as generally accepted and reliable” (Parker, 16 AD3d at 651 [citations omitted]).

Applying that three-step process to the affidavits submitted by plaintiffs’ experts in this case leads to the inescapable conclusion that their opinions are not based on generally accepted scientific principles. As is readily apparent, plaintiffs’ experts 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 *119to the substance that will produce that illness. Indeed, it speaks volumes that the official Web site of The Leukemia & Lymphoma Society (www.leukemia-lymphoma.org) reports that the cause of acute lymphoid leukemia, also known as acute lymphocytic leukemia, is not evident and, although scientists continue to explore possible relationships with lifestyles or environmental factors, unfortunately no firm conclusions have yet been reached. 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 acute lymphoid leukemia are purely speculative (see Parker, 16 AD3d at 653).

Moreover, inasmuch as Dr. Neugebauer specifically stated that until data from years after 1996 is made available “it is not possible to draw firm conclusions as to whether residential proximity to the DUMP is associated with increased rates of Hodgkin’s disease among children,” the complaints of the two plaintiffs suffering from Hodgkin’s disease, Jennifer Nessen and Brian Walsh, should have been dismissed.

The majority attempts to excuse plaintiffs’ failure of proof on the ground that experts in the fields of both epidemiology and toxicology agree that although studies providing dose-response relationships are strong evidence of causation, they are not essential to establishing causation (Reference Manual on Scientific Evidence, Reference Guide on Epidemiology, at 377 [2d ed]). It neglects, however, to acknowledge that such conclusion applies only where “some causal agents do not exhibit a dose-response relationship when, for example, there is a threshold phenomenon (i.e., an exposure may not cause disease until the exposure exceeds a certain dose)” (id.).

Not only is there no claim that plaintiffs’ acute lymphoid leukemia was the result of minimal or low doses of known carcinogens, but any such opinion would certainly be novel given the sharp debate on the subject in the relevant scientific community (“The question whether there is a no-effect threshold dose is a controversial one in a variety of toxic substances areas” and “dose-response relationship for low doses is ‘one of the most sharply contested questions currently being debated in the medical community’ ” [id. at 377 n 119 (citations omitted)]). Indeed all of the opinions of plaintiffs’ experts, particularly that of Dr. Neugebauer, are, at the very least, novel inasmuch as eight years earlier, in 1994, it was undisputed that any cause and effect relationship between toxic substances in the Staten *120Island landfills at issue in Annunziato and similar diseases suffered by their neighbors was still hypothetical. Plaintiffs do not allege that there is a substantive difference between the landfills and their effects in Annunziato and the Pelham Bay landfill in these cases. Nor is there any support for plaintiffs’ claim that they discovered the alleged cause of their illnesses prior to the submission of Dr. Neugebauer’s 2002 affidavit in response to the City’s motion for summary judgment.

In his reply affidavit on behalf of plaintiffs, Dr. Bidanset states that the City’s expert Dr. Borak’s assertion that a dose response must be indicated for a successful toxicological evaluation is just incorrect. He states that there is no threshold value and dose is not a requirement of the oncogene theory of carcinogenesis (a gene having the potential to cause a normal cell to become cancerous), because transformation of a single cell does not have to obey a dose-response relationship. However, Dr. Bidanset’s similar opinion regarding causation, including his oncogene theory, has been flatly rejected as merely a hypothesis not grounded in reliable scientific methods (see Wills v Amerada Hess Corp., 2002 WL 140542, 2002 US Dist LEXIS 1546 [SD NY 2002], affd 379 F3d 32 [2004], cert denied — US —, 126 S Ct 355 [2005]). The majority states that Wills is distinguishable on the law and the facts, the only similarity being that Dr. Bidanset appeared as an expert toxicologist and the plaintiffs in each case developed cancer; however, what is not distinguishable is that Dr. Bidanset’s opinions were found insufficiently reliable to be admissible as evidence; that the court found that his reports demonstrated that Dr. Bidanset was ready to form a conclusion first, without any basis, and then try to justify it; and, that his reasons for departing from the mainstream understanding of causation to embrace the oncogene theory were wholly unsatisfactory. As here, Dr. Bidanset in Wills could cite to no epidemiological studies pointing to an increased risk of the cancer there alleged as a result of exposure to the toxins there in question (2002 WL 140542, at *5, 2002 US Dist LEXIS 1546, at *14-16).

"In support of its statement that “two chemicals identified by Dr. Bidanset in the landfill, trichloroethylene (TCE) and tetrachloroethylene, are industrial solvents which have been linked to acute lymphoid leukemia (ALL), the exact form of leukemia developed in the majority of the plaintiffs in this lawsuit,” the majority cites Anderson v W.R. Grace & Co. (628 F Supp 1219 [D Mass 1986]), a case it describes as concerning “ALL *121‘cancer clusters’ ” allegedly caused by those chemicals in a water supply in Woburn, Massachusetts. However, that case, which was the basis for the motion picture A Civil Action, nowhere mentions acute lymphoid leukemia. In fact, there is only one reported case in the United States that mentions that disease (1 Misc 3d 897 [2003]), the decision presently on appeal.

As in Parker, plaintiffs present no evidence of the concentration level of benzene or any other substance to which they were exposed. Their experts fail to quantify their exposure in any typically utilized unit of measurement such as parts per million factored against the duration of time to which the plaintiffs were exposed.

“Without any quantification of the plaintiffs level of exposure to benzene [or any other substance alleged to have caused plaintiffs’ illnesses], required by the first part of the above described three-step process, the second part of that process, i.e., ascertaining the threshold level of benzene exposure which has been proven to cause AML (the parties do not dispute that a certain level of benzene exposure has been proven to cause AML) loses any significance” (Parker, 16 AD3d at 652).

Again, the majority attempts to distinguish Parker on the ground that the “dose-response” relationship is only one of nine factors which can cause an epidemiologist to draw a causal inference. However, not only did Dr. Neugebauer fail to consider the dose-response relationship, he also neglected to address the eight other factors alluded to by the majority: temporal relationship; strength of the association between the exposure and disease; replication of the findings; biological plausibility (consistency with existing knowledge); consideration of alternative explanations; the effect of cessation of exposure; specificity of the association (the exposure is associated only with a single disease or type of disease); and, consistency of the findings with other relevant knowledge (Reference Manual on Scientific Evidence, supra at 375-379).

The majority also attempts to distinguish Parker on the ground that Parker involved one plaintiff whereas “[t]his litigation arose from a community with a disproportionate incidence of fatal cancers.” However, even if most of the plaintiffs suffer from the same illness, each plaintiffs claim depends on its own individual facts, as recognized by plaintiffs’ concession that there was a failure to establish a causal connection between the *122landfill and the cancer deaths of Joanne Marie DaBenigno and her sister Patricia Ann DaBenigno.

In any event, assuming plaintiffs were to argue that there is no threshold level of exposure to the toxins in the landfill below which acute lymphoid leukemia or Hodgkin’s disease cannot result, the scientific reliability of this so-called “linear non-threshold model” (“if a lot of something is bad for you, a little of the same thing, while perhaps not equally bad, must be so in some degree”) has been flatly rejected as a mere hypothesis (Parker, 16 AD3d at 652). The Parker court further found misguided studies which merely state that no level of benzene exposure can be considered “ ‘safe.’ Of course, stating that any exposure to benzene is ‘unsafe’ is not tantamount to stating that any exposure to benzene causes AML” (at 653). It also noted that one of the plaintiffs experts, as here, made nonspecific conclusions regarding the plaintiffs level of exposure using indefinite terminology such as “extensive” and “abundant opportunity for exposure” while the other stated, without any quantitative support, that plaintiffs exposure to benzene was “greater than that of the subjects of an oil refinery study.” (Id. at 652, 653.) “Thus,” the Court stated, “any conclusions as to the plaintiff’s level of exposure to benzene and whether the exposure was substantial enough to cause AML, were purely speculative” (id. at 653 [citations omitted]). Accordingly, the Court held that plaintiffs expert testimony should have been precluded on the ground that it was not scientifically reliable and therefore inadmissible.

The majority finds that it is “not surprising” that plaintiffs’ toxicologists “did not present a specific dose-response threshold of any particular carcinogen to support their opinions that plaintiffs’ cancer was caused by exposure to the landfill.” Instead, it apparently finds sufficient plaintiffs’ proffer of “a combination of epidemiological and toxicological reports to support the theory that their extended exposure to hazardous levels of numerous carcinogens in this particular landfill caused their cancers.” Not only is this fuzzy science at its worst, but it overlooks the fact that all of plaintiffs’ experts fail to satisfy the first prong of the “generally accepted and reliable” three-step analysis approved in Parker, viz., a determination of the plaintiffs’ level of exposure to the toxins in question.

The majority also states that “[t]he record contains epidemiological reports from both plaintiffs and the City, with differing conclusions about whether the incidence of cancer was high in *123the area closest to the landfill.” However, the record only contains the 40-page report issued by the City in 1988 and the 120-page 1994 study conducted by the City, both of which concluded that there was no association between the landfill and plaintiffs’ diseases. Those studies set forth in detail the background and objectives, methods, and results of such studies and are replete with specific references to the tables and figures relied upon by the authors. On the other hand, other than attaching a list of references to his reply affidavit, which includes a reference to a “Neugebauer REPORT 2001” purportedly entitled “Epidemiological Study of Increased Incidence of Childhood Cancers Associated with Residential Proximity to the Pelham Bay Landfill in the Bronx: Acute Lymphoid Leukemia and Hodgkin’s Lymphoma August 21, 2001,” Dr. Neugebauer neglects to provide a copy of such report and in fact makes not a single reference to such report in the body of his affidavit.

Even if Dr. Neugebauer had used generally accepted methods and documented the data and authorities relied upon in reaching his conclusion, his opinion would still be insufficient to establish that each individual plaintiffs illness was caused by that individual’s exposure to toxic substances in the landfill. The study conducted by Dr. Neugebauer is what is called an ecological or demographic study, viz., a study of the occurrence of disease based on data from populations, rather than from individuals (Reference Manual on Scientific Evidence, Reference Guide on Epidemiology, at 391). Such studies are useful in identifying areas for further research, and researchers who identify a difference in disease or death in a demographic study may follow up with a study based on data gathered about individuals {id. at 345). “[A]n agent cannot be considered to cause the illness of a specific person unless it is recognized as a cause of that disease in general” (Philip Cole, Causality in Epidemiology, Health Policy and Law, 27 Envtl L Rep [Envtl L Inst] 10279, 10284 n 53 [June 1997], quoted in Reference Manual on Scientific Evidence, supra at 383-384).

Plaintiffs also rely upon various federal and sister state decisions, as well as this Court’s decision in Munoz v Puretz (301 AD2d 382, 383-384 [2003]), for the proposition that, even where evidence of “dose” was not available, courts permitted extrapolation of harmful levels from the fact of the symptoms themselves and submit that the result should be no different here. Such reliance is misguided. In Munoz, for example, plaintiffs expert concluded that one of the infant plaintiffs “had been *124subjected to lead toxicity in utero based on his examination of the child and the confirmed finding of lead-based paint on the premises and the child’s subsequent diagnosis of elevated lead levels” based upon lab tests. (Id. at 383.) We rejected the argument that the expert’s conclusion lacked scientific reliability since neither the fact of injury from exposure to lead-based paint nor in utero transmission implicates novel theories of liability (id.). Likewise, in the other cases relied upon by plaintiffs, courts permitted experts to extrapolate from animal studies and, in one case, permitted an expert to opine that certain refinery workers were exposed to levels of benzene that were several hundred times above the permissible exposure level of one part per million since the symptoms the workers began suffering shortly after the complained-of toxic substance was introduced into the refinery — headache, nausea, disorientation, and fatigue — are well-known symptoms of overexposure to benzene. The expert concluded that these symptoms were all indications of exposure to benzene at levels of at least 200-300 parts per million.

Here, on the other hand, plaintiffs fail to provide any data that would permit their experts to extrapolate so as to conclude with any scientific basis that any substance or substances in the Pelham Bay landfill caused plaintiffs’ acute lymphoid leukemia or Hodgkin’s disease. Thus, given the absence of any data, any reference to scientific authority or treatises, or other corroborating evidence, such conclusion is speculative, lacks any evidentiary foundation, has no probative value, and is insufficient to withstand summary judgment (Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d at 9).

The case for rejecting plaintiffs’ experts’ opinions as inadmissible is even stronger here than in Parker since there the plaintiffs experts relied upon studies that ultimately reached the conclusion that increased levels of exposure to benzene have been shown to cause leukemia, a fact not disputed by the parties. Here, on the other hand, plaintiffs can point to no study that concludes that acute lymphoid leukemia or Hodgkin’s disease is caused by any substance found in the landfill. While that may be a generally accepted hypothesis, it is not the type of proof necessary to withstand summary judgment. As in Parker and Annunziato, plaintiffs’ experts have failed to posit a causal connection, based upon a scientifically reliable methodology, between plaintiffs’ specific level of exposure to any substance in the Pelham Bay landfill and their acute lymphoid leukemia.

*125Finally, the majority rejects the City’s argument that these actions should be dismissed as untimely because plaintiffs have presented proof that they learned within five years after their illnesses were diagnosed that harmful substances at the landfill were responsible for their illnesses. However, since the opinions of plaintiffs’ experts to that effect are inadmissible and have no probative value, there is no such proof and, if they were not being dismissed for failure to state a cause of action, the complaints of all but the infant plaintiffs, Amanda Caryn Arisio, Antonio Carollo, Rufino Irizarry, Michelle Herta Phillips and Kevin Simpson, would have to be dismissed as untimely.

Saxe and Catterson, JJ., concur with Mazzarelli, J.P; Andrias and Williams, JJ., dissent in a separate opinion by Andrias, J.

Order, Supreme Court, Bronx County, entered October 16, 2003, modified, on the law, to dismiss, with leave to replead, plaintiff Angelilli’s complaint, and otherwise affirmed, without costs.