Summary Judgment Denied to Talc Defendant on Statute of Limitations, Burden of Proof, and Causation Issues Supreme Court of New York, New York County, June 22, 2016

In this asbestos personal injury action the plaintiffs allege that Arlene Feinberg contracted mesothelioma because of exposure to asbestos-contaminated talc from defendant Colgate-Palmolive Company’s Cashmere Bouquet. Colgate moved for summary judgment, arguing 1) the plaintiffs’ action is barred by the statute of limitations; 2) the plaintiffs failed to exclude other potential causes of Ms. Feinberg’s mesothelioma; 3) the plaintiffs failed to prove that Cashmere Bouquet caused the mesothelioma; and 4) that there is no evidence of general or specific causation. The plaintiffs opposed summary judgment, arguing that Colgate failed to prove that the action was time-barred because Ms. Feinberg’s symptoms were too isolated or inconsequential to trigger the statute of limitations. The plaintiffs further asserted that they did not bear the burden on summary judgment to exclude other potential causes of a plaintiff’s illness. Rather, Colgate has the burden of proof on summary judgment to demonstrate that Cashmere Bouquet could not have caused the injury and it failed to do so. Finally, the plaintiff argued that the causation issue was foreclosed in prior decisions. The court agreed with the plaintiffs on all issues, and denied summary judgment.

On the question of whether the claims were time-barred, the court determined that the issue must be decided by the jury. The statute of limitations provides for a three-year limitations period for actions to recover damages for injuries to person or property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property. That period is computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier. For the purposes of the statute, discovery occurs when the injured party discovers the primary condition on which the claim is based. In review of the evidence, the court determined that “[t]he evidence does not permit me to decide the issue as a matter of law. While Mrs. Feinberg experienced many of the symptoms that one would experience with mesothelioma, those symptoms may have been attributable to other causes (like pneumonia or cardiomegaly). Therefore, here is an issue of fact as to whether the pain and effusion that she experienced prior to February 28, 2008 was in fact symptoms of malignant mesothelioma or, whether the symptoms related to another illness.”

The court also rejected Colgate’s argument that it was entitled to summary judgment because the plaintiff had not excluded other potential asbestos exposures and therefore, absent testing of the bottles of Cashmere Bouquet used by Ms. Feinberg, Plaintiffs could not prove a defect by circumstantial evidence. The court found the argument unpersuasive because it is not a plaintiff’s burden on summary judgment to exclude all other potential causes of injury, it is a defendant’s burden to establish a prima facie case of another cause before a plaintiff must raise an issue of fact. The court held that even though there was evidence that Ms. Feinberg was exposed to asbestos from tiles, secondhand smoke from her husband’s Kent cigarettes, and lived near a waste dump, does not establish Colgate’s entitlement to summary judgment.

Colgate argued that even if the plaintiffs could demonstrate that Ms. Feinberg was exposed to asbestos from Cashmere Bouquet talcum powder, there is no evidence that such exposure was a substantial factor in causing her disease because, Colgate claimed, the product was safe. The plaintiff countered with evidence of asbestos contamination in the product. The court held that Colgate’s “argument is unpersuasive because it is not plaintiffs’ burden on summary judgment to prove that exposure to Cashmere Bouquet was a substantial factor in causing Mrs. Feinberg’s disease. Colgate has failed to meet its burden to demonstrate that Cashmere Bouquet “could not have contributed to the causation of plaintiff’s injury.” Colgate’s argument was premised on its own conclusion that its product did not contain asbestos, or sufficient amounts of asbestos, to cause harm. The court, however, noted that the evidence is conflicting on this issue which raises issues of fact for the jury.

Finally, the court rejected Colgate’s arguments that the plaintiffs could not show general or specific causation. The court rejected this argument as an attempt to re-litigate expert evidentiary issues that were previously decided by the court. The court agreed, noting that Judge Shulman’s reasoning that a jury will have to weigh the evidence the parties are expected to present to decide whether [Colgate’s] consumer talc product was in fact contaminated with amphibole asbestos in sufficient quantity to have been a substantial factor in causing decedent-plaintiff Feinberg’s mesothelioma.”

Read the full decision here.

 


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