Appellate Court Reverses Plaintiff’s Verdict on Causation Grounds

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New York Court of Appeals, April 26, 2022

The plaintiff’s decedent, Florence Nemeth, was diagnosed with peritoneal mesothelioma in 2012 and passed away in 2016. She and her husband filed suit against numerous defendants, alleging that Ms. Nemeth’s exposure to asbestos-containing products throughout her lifetime caused her mesothelioma. Ms. Nemeth was deposed prior to her death, but died prior to trial. The plaintiff settled with all defendants prior to trial with the exception of Whittaker, Clark & Daniels (Whittaker), the entity that the plaintiff alleged supplied asbestos-contaminated talc used in Desert Flower, a product allegedly used daily by Ms. Nemeth from 1960 to 1971.

As such, a trial proceeded against Whittaker only. During the trial, the plaintiff called geologist Sean Fitzgerald as an expert. Fitzgerald testified to utilizing a “glove box test” in which he agitated a vintage sample of Desert Flower talcum powder within a small, sealed Plexiglas chamber. This action purportedly simulated Ms. Nemeth’s alleged use of Desert Flower and captured released asbestos fibers in an effort to “target the actual exposure.” Based on this test, Fitzgerald concluded that the asbestos fibers in the Desert Flower sample were “significantly releasable” and that Ms. Nemeth must have been exposed to “thousands to millions of fibers, billion and trillions when you add it up through repeated use.” The plaintiff also called Dr. Jacqueline Moline, a doctor of internal medicine, as a causation expert. Dr. Moline testified that studies show mesothelioma is a “signal tumor,” meaning “if someone develops that cancer … then it signals that they’ve had exposure to that particular substance.” Dr. Moline also noted that some exposures to asbestos are trivial and do not increase a person’s risk for mesothelioma. Based on this testimony, and relying on Fitzgerald’s “glove box test,” Dr. Moline concluded that Ms. Nemeth’s exposure to asbestos from her use of the Desert Flower product was “at levels at which multiple studies have shown elevated rates of mesothelioma.” Ultimately, the jury returned a verdict in the plaintiff’s favor and awarded damages. Whittaker then moved for judgment notwithstanding the verdict, arguing that the verdict was not supported by legally sufficient evidence as to causation. The trial court denied the motion. On appeal, a divided First Department affirmed the judgment, finding sufficient causation evidence. The First Department then granted leave to appeal to the Court of Appeals.

On review, the Court of Appeals took “the opportunity to reaffirm” the causation requirements in toxic tort cases. The court noted that an opinion on causation must establish: 1) the plaintiff’s exposure to a toxin, 2) that the toxin is capable of causing the particular illness (general causation); and that the plaintiff was exposed to sufficient levels of the toxin to cause the injury (specific causation). Parker v. Mobil Oil Corp., 7 NY3d 434,448 (2006). With regard to specific causation, experts must quantify exposure through methods generally accepted by the scientific community, though this quantification does not have to be precise. Here, the court found that Fitzgerald’s testimony regarding the “glove box method” was not a quantification of Ms. Nemeth’s exposure sufficient to establish specific causation. Significantly, Fitzgerald’s test did not estimate the amount of asbestos that could be inhaled, nor did he identify the number of released asbestos fibers as “fibers of an inhalable size.” Moreover, Fitzgerald’s testimony failed to provide any scientific expression linking Ms. Nemeth’s actual exposure to asbestos to a level known to cause her mesothelioma. The court similarly found that Dr. Moline’s opinion was insufficient to establish specific causation as it lacked a foundational basis. The court noted that the studies cited in Dr. Moline’s opinion simply associated asbestos and mesothelioma, and mere association is not enough. Moreover, Dr. Moline also relied on Fitzgerald’s flawed “glove box test” to form her opinion. As a result, the court found that Dr. Moline’s opinion was conclusory, failing to establish that Ms. Nemeth was exposed to sufficient levels of asbestos to cause her mesothelioma.

Given this, the court held the plaintiff’s proofs on causation to be insufficient as a matter of law, and the jury verdict was reversed and the case dismissed, as to Whittaker, with costs.

Read the full decision here