On April 27, 2022, the New York Court of Appeals stated in overturning a $16.5 million mesothelioma verdict, “Plaintiff’s spouse used a commercial talcum powder daily for a period of more than ten years during the 1960s and early 1970s. Decades later, she developed mesothelioma and died as a result. Plaintiff brought this action, alleging that use of the cosmetic powder was a proximate cause of decedent’s illness. A jury agreed and awarded damages. Because plaintiff’s proof of causation was insufficient as a matter of law, we now reverse and dismiss the complaint against defendant.”
The Underlying Facts
Florence Nemeth was diagnosed with peritoneal mesothelioma in 2012 and passed away from the disease in 2016. Plaintiff—decedent’s husband—sued an array of defendants involved in the manufacturing and distribution of certain products alleged to contain asbestos to which decedent was exposed over the course of her lifetime, on the theory that each product proximately caused her illness. Plaintiff alleged that decedent used lawn care products containing asbestos; worked with construction materials containing asbestos during home renovations; and inhaled asbestos fibers when she laundered the clothing her son wore as an elevator repairman. Plaintiff also alleged that defendant-appellant Whittaker supplied defendant Shulton with talc contaminated with asbestos that was then used in a commercial talcum powder, Desert Flower, which decedent applied daily from 1960 until 1971. Plaintiff settled with all other defendants, and the case went to trial against Whittaker only.
The jury returned a verdict in plaintiff’s favor, awarding $15 million to the estate and $1.5 million to plaintiff for loss of consortium, and apportioned fault equally between Whittaker and Shulton. Whittaker moved for judgment notwithstanding the verdict, arguing that it was not supported by legally sufficient evidence as to causation. The trial court denied the motion.
The New York Court of Appeals stated: “plaintiff’s proof failed to demonstrate decedent’s level of exposure to asbestos in a manner that established causation. In attempting to do so, plaintiff primarily relied on the testimony of the geologist, Fitzgerald. The dissent, plaintiff, and the majority below all characterize Fitzgerald’s glove box test as a quantification, or at least a scientific expression, of decedent’s exposure, recasting it as some sort of “breathability” study (dissenting op at 21). It was not. Fitzgerald shook a vintage sample of Desert Flower to determine the number of fibers released into a box, or as he put it, to “contain anything that’s released” and “determine . . . if that asbestos was releasable.” Fitzgerald could not offer an estimate of the amount that would be inhaled based on the test he conducted. Nor did his identification of the number of released fibers and description of those fibers as of “an inhalable size” establish causation by demonstrating that decedent’s exposure was comparable to similar exposures proven to be causally related to the development of mesothelioma. While a precise numerical value is not required, Fitzgerald’s test simply failed to provide any scientific expression linking decedent’s actual exposure to asbestos to a level known to cause mesothelioma. Dr. Moline purported to base her expert opinion on the results of Fitzgerald’s test, testifying that the volume of fibers released into the glove box during Fitzgerald’s simulation corresponds to those “at which multiple studies have shown elevated rates of mesothelioma.” But Dr. Moline admitted that industrial hygienists could have estimated decedent’s inhalation levels (id. at 244 n 12 [Friedman, J dissenting] [noting that “it is possible to conduct a test in an actual bathroom of the level of exposure to respirable asbestos resulting from the use of a cosmetic powder” and “Mr. Fitzgerald, however, did not conduct any such test with Desert Flower in a bathroom the size of Mrs. Nemeth’s”]). Plaintiff could have introduced such evidence, and could also have introduced evidence regarding the inhalation levels known to cause peritoneal mesothelioma, but did not do so. Because of these flaws in Fitzgerald’s test, Dr. Moline’s corresponding reliance on that test to conclude that decedent’s exposure caused her mesothelioma was likewise insufficient.”
“Although we have recognized that in any given case it may be “difficult, if not impossible, to quantify a plaintiff’s past exposure” to a toxin (Sean R., 26 NY3d at 812), our standard itself is not “impossible” for plaintiffs to meet (dissenting op at 25). We must as always, strike a balance between the need to exclude “unreliable or speculative information” as to causation with our obligation to ensure that we have not set “an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court” (Parker, 7 NY3d at 447). The requirement that plaintiff establish, using expert testimony based on generally accepted methodologies, sufficient exposure to a toxin to cause the claimed illness strikes the appropriate balance (see Cornell, 22 NY3d at 784). The fault here is not in our standard, but in plaintiff’s proof.”
The dissenting opinion stated: “Mr. Fitzgerald determined that the asbestos contained in Desert Flower “was significantly releasable,” at a level “thousands of times” higher than would be acceptable in a school under the federal Asbestos Hazard Emergency Response Act (15 USC § 2641 et seq. [AHERA]), using AHERA’s definitions and protocols for measurement. He further estimated that “millions of fibers [were] initially released into the chambers” and opined that the fibers would have been of an inhalable size … Mr. Fitzgerald opined—based on his experience and education, and the test results and Flo’s description of her daily use of the cosmetic powder in the confines of her tiny bathroom—that had Flo used Desert Flower every day, she would have been exposed to inhalable asbestos in measures above those acceptable under the AHERA standards … plaintiff’s proof of causation was sufficient and provided a basis for the jury’s conclusion that plaintiff established by a preponderance of the evidence that defendant distributed and/or sold talc contaminated with asbestos, Flo was exposed to that talc, defendant negligently failed to provide adequate warning, and defendant’s negligence was a substantial factor causing injury to Flo. Accordingly, defendant’s motion for a directed verdict was properly denied because “[a] valid line of reasoning exists based on the record evidence to support the jury verdict finding defendant liable.””
Source Francis Nemeth v. Brenntag North America, No. 24.
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