Specific causation in an asbestos matter was addressed in a recent decision by the First Department of the New York Supreme Court. Notably, the decision is the first time an appellate court in New York affirmed a jury verdict in a case where a plaintiff's mesothelioma was caused by alleged asbestos-containing talcum powder. This decision should have limited, if any, implication on national toxic tort litigation because of the distinct facts relating to the case, however, an analysis of the case can provide valuable lessons for defendants preparing for trial.
The Case
Francis Nemeth v. Brenntag North America, et al., 2020 NY Slip. Op. 02261 (Apr. 9, 2020, 1st Dept.), involved a decedent who suffered from peritoneal mesothelioma allegedly caused by her use of Desert Flower Talcum Powder (Desert Flower). Prior to her death, Decedent testified that she used Desert Flower talcum powder daily from 1960 until 1971. Desert Flower was a cosmetic talcum powder manufactured by Shulton, Inc. (Shulton) that allegedly used raw talc from mines known to contain asbestos supplied by Whitaker, Clark & Daniels, Inc. (Whitaker). The jury awarded Plaintiff's estate $15M and Plaintiff's widower $1.5M for loss of consortium and apportioned 50 percent of the fault to Whitaker and 50 percent to Shulton.
Expert Testimony
At trial, Plaintiff's geologist, Sean Fitzgerald, testified that the talc sold by Whitaker to Shulton was regularly and consistently contaminated with releasable asbestos. He also tested a vintage sample of Desert Flower and concluded that the number of released asbestos fibers from Desert Flower were several orders of magnitude higher than that found in ambient air.
Dr. Jacqueline Moline, Plaintiff's occupational and environmental medicine expert, concluded that the Decedent's mesothelioma was caused by her exposure to asbestos in Desert Flower. Dr. Moline referred to her expertise and knowledge of the literature in the field. She conceded that there was no precise quantification of the amount of asbestos to which Decedent was exposed. Defendant's expert, an epidemiologist, was not permitted to give testimony on specific causation after the trial court granted Plaintiff's motion in Limine, calling him unqualified to give such an opinion.
Appeal
Whitaker appealed the jury's verdict, arguing that there was not sufficient evidence in the record for the jury to conclude that the decedent was exposed to enough asbestos to cause her mesothelioma. The court ultimately held that there was sufficient evidence for specific causation, discussing at length the evolution of causation standards in New York toxic tort litigation.
Evolution of Causation Standards
In Lustenring v. AC & S, Inc., 789 N.Y.S.2d 20 (1st Dept. 2004), the appellate court held that evidence of the plaintiff working all day in clouds of dust resulting from his manipulation of asbestos containing gaskets, along with expert testimony that the dust was from asbestos, supported a conclusion that the dust contained enough asbestos to cause mesothelioma. Later, in Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447 (2006), the Court provided a framework that any opinion on causation should set forth:
- a plaintiff's exposure to a toxin
- that the toxin is capable of causing a particular illness (general causation) and
- that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).
In Matter of NYC Asbestos Litigation (Juni), 32 N.Y.3d 1116 (2018), the plaintiff's experts could only opine that plaintiff's decedent was exposed to "regular" amounts of asbestos from his mechanic brake work. The defendant's experts opined that brake shoe dust did not actually contain respirable asbestos. The Court of Appeals affirmed the trial court's holding that the evidence was insufficient as a matter of law to establish that the defendant's conduct was a proximate cause of the decedent's injuries.
Defense and Decision
Within this causation framework in New York, Whitaker's primary argument was that Dr. Moline's opinion was legally insufficient because it failed to satisfy the quantification element. Whitaker pointed out that Dr. Moline did not precisely quantify Decedent's exposure to asbestos from the Desert Flower talc powder. However, Dr. Moline claimed that she was able to "estimate" the exposure based upon Decedent's testimony and the geologist expert's testimony. The Court held this was sufficient to produce an estimate, consistent with Parker. What the Court failed to acknowledge was Plaintiff's inability to present evidence that the talcum contained quantities of asbestos sufficient to cause Decedent's disease. The Court also rejected Whitaker's alternative argument, that Dr. Moline's opinion was against the weight of the evidence, given Whitaker's failure to produce an expert witness on the issue of specific causation. The Court held that Plaintiff's experts were not required to present epidemiological studies of the specific product at issue.
Future Implications
The Court's decision in Nemeth appears to reduce specific causation requirements in New York toxic tort matters. Defendants should be prepared with experts to provide sound causation opinions to counter plaintiffs' expert's opinions that may lack support from quantified exposures and epidemiological studies.
Originally Published 21 April, 2021
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