The New York Court of Appeals has nixed a $16.5 million jury verdict won by the estate of a woman who died from cancer that she claimed was caused from cosmetic talcum powder.
The high court found that the woman’s estate failed to prove that the amount of asbestos in the talcum powder was sufficient to cause her mesothelioma. The court reiterated its position from prior toxic tort cases that a plaintiff must establish sufficient exposure to the toxin even though “it is sometimes difficult, if not impossible,” to do so.
According to plaintiff Francis Nemeth, his late wife used a commercial talcum powder daily for a period of more than 10 years. Decades later, she developed mesothelioma and died as a result. He sued supplier Whittaker, Clark & Daniels, and manufacturer Shulton over their talcum powder, Desert Flower, which his wife used daily from 1960 until 1971 and which he alleged to be contaminated with asbestos.
He also sued manufacturers and distributors of various other products alleged to contain asbestos including lawn care products and home construction materials. He further claimed she inhaled asbestos fibers when she laundered the clothing her son wore as an elevator repairman.
He settled with all other defendants, while the case went to trial against Whittaker, Clark & Daniels only.
At trial, the plaintiff called a geologist who testified that the deceased must have been exposed to “thousands to millions of fibers, billions and trillions when you add it up through repeated use.” He compared this to the ambient level, or what “an average person living in an urban area breathes in,” of 60,000 fibers per day.
A doctor of internal medicine also testified for the plaintiff. She told the jury that Desert Flower was “a substantial contributing factor” to her mesothelioma. Relying on the geologist’s testimony regarding releasable asbestos fibers, she testified that his wife’s exposure was “at levels at which multiple studies have shown elevated rates of mesothelioma.”
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, Clark & Daniels 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.
A divided Appellate Division modified the judgment in connection with the damages awarded, but affirmed, holding that there was sufficient evidence to support the jury’s verdict. This court determined that the geologist’s testimony presented a sound basis for the jury’s conclusion.
The Court of Appeals has now disagreed with the Appellate Division in ruling that the plaintiff’s proof failed as a matter of law to meet the court’s test for proving causation in toxic tort cases. The high court explained its standard of proof in such cases: “Plaintiffs must, using expert testimony based on ‘generally accepted methodologies,’ still establish sufficient exposure to the toxin even though ‘it is sometimes difficult, if not impossible,’ to do so.”
Throughout its various toxic tort cases, the high court said it has repeatedly rejected as insufficient to prove causation expert “testimony that exposure to a toxin is ‘excessive’ or ‘far more’ than others, and such testimony that merely links a toxin to a disease or ‘work[s] backwards from reported symptoms to divine an otherwise unknown concentration’ of a toxin to prove causation.”
In 2018, the court affirmed an Appellate Division holding that defendant was entitled to judgment notwithstanding the verdict in a case that applied its principles in the asbestos context, ruling that “the fact that asbestos . . . has been linked to mesothelioma is not enough for a determination of liability against a particular defendant; a causation expert must still establish that the plaintiff was exposed to sufficient levels of the toxin from the defendant’s products to have caused his disease.”
As was the case in 2018, here Nemeth failed to prove that exposure to asbestos in the defendant’s product was a proximate cause of his wife’s illness.
While the lower court majority found that testimony of a chief witness, an internal medicine doctor, was sufficient because she described mesothelioma as a sentinel health event of asbestos exposure and said that virtually all cases of mesothelioma are related to asbestos exposure, the higher court disagreed, describing her testimony as “merely conclusory assertions of causation” that were insufficient to prove the standard of causation.
The plaintiff’s case further failed by primarily relying on a geologist who deployed what he called a “glove box test” to measure exposure to asbestos. The plaintiff claimed the test was a quantification, or at least a scientific expression, of the wife’s exposure, recasting it as some sort of “breathability” study. However, the high court asserted bluntly, “It was not.” The test did not provide any scientific expression linking her actual exposure to asbestos to a level known to cause mesothelioma, according to the high court.
”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.’ The fault here is not in our standard, but in plaintiff’s proof,” the court wrote.
The jury verdict has been reversed, with costs, and the complaint against Whittaker, Clark & Daniels has been dismissed.
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Simpson is a freelance writer and editor. He retired as Chief Content Officer for Wells Media Group in July, 2022 after 18 years with the company.
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