Talc defendants filed an appeal of a recent mesothelioma case arguing that the plaintiff should not have been added to a fast tracked “in extremis” trial group. All defendants in this matter were talc defendants. However, the plaintiff alleged that he was exposed to asbestos from ovens in Queens when he was approximately 8-10 years old. The plaintiff alleged that he accompanied his father to work and would crawl inside the “cooled oven” to retrieve the resistors that were inside since he was the only one small enough to fit inside the oven.
The defendants argued: 1) The plaintiff failed to identify any manufacturer/supplier of the ovens 2) the plaintiff did not prove that the ovens contained asbestos 3) the plaintiff “manufactured” testimony to achieve in extremis status and 4) the plaintiff’s expert report opined that his mesothelioma developed as a result of his exposure to talc. The plaintiffs countered and stated that the status of in extremis is maintained by the plaintiff’s connection to New York. Further, the plaintiff argued that if his in extremis status was revoked then the defendants should be precluded from testifying that he was exposed to asbestos from ovens. Finally, the plaintiff took the position that their expert reports discussed only talc exposure because of the short deadlines imposed upon them.
The court reviewed its recent decision in the Trumbull case and concluded that the in extremis docket was essentially one for terminally ill plaintiffs. The requirement for a connection to New York City is in place to discourage forum shopping. In that decision, the weight of exposure in one jurisdiction versus New York City was irrelevant. Here, the court found the facts to be different than Trumbull. After months of investigation, the plaintiff had not “sued or identified any entity alleged to have responsibility for the oven, nor did the plaintiff testify that the oven at issue was labeled as having asbestos content.” Consequently, the court granted the defendants’ motions and ordered the case removed from the in extremis cluster.