After Nemeth, NY Courts Require Stringent Analysis of Proof to Establish Causation in Asbestos Matters. Will Other Jurisdictions Follow?  

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As previously reported in Goldberg Segalla’s Asbestos Case Tracker — (NYCAL Verdict Against Talc Product Manufacturer Reversed on Causation Grounds – Asbestos Case Tracker) — the New York Court of Appeals recently overturned a $16.5 million-dollar asbestos verdict, finding the plaintiff’s proof on causation insufficient as a matter of law.  Nemeth v. Whittaker, Clark, & Daniels, Inc. 2022 NY Slip Op 02769 (April 26, 2022).  

In Nemeth, the court reaffirmed the requirements for causation first detailed in Parker v. Mobil Oil Corp, specifying that plaintiffs must establish: 
 
1.) Exposure to a toxin; 

2.) That the toxin is capable to causing a particular illness (general causation), and 

3.) They were exposed to sufficient levels of the toxin to cause the injury (specific causation). 

With regard to specific causation, the court emphasized that merely citing the association between mesothelioma and asbestos is insufficient. Rather, expert opinions relied on by plaintiffs to establish specific causation must quantify exposure through methods generally accepted by the scientific community. The majority in Nemeth opined that the studies and scientific literature relied on by the plaintiff’s experts inadequately supported their conclusions as to causation because the opinions failed to quantify what exposure level was necessary to cause the disease and failed to establish that the plaintiff was exposed to such a level. As such, the court concluded the verdict was based on insufficient evidence because plaintiffs failed to establish, as a matter of law, that talcum powder attributed to Whittaker, Clark, & Daniels was the proximate cause of plaintiff’s illness. 

Soon after the Nemeth decision, the New York Appellate Division, First Department, issued numerous, defense-friendly decisions on specific causation grounds in direct response to Nemeth – as tracked in the Asbestos Case Tracker (NYCAL Decisions Denying Summary Judgment to Floor Tile Manufacturer Reversed – Asbestos Case Tracker). Most notably, in Olson v. Brenntag, et al, the First Department unanimously reversed a $325 million plaintiff’s verdict in favor of Johnson & Johnson, holding that the plaintiffs did not provide sufficient evidence of specific causation. (NYCAL Verdict Against Talc Product Manufacturer Reversed on Causation Grounds – Asbestos Case Tracker). The Olson Court stressed that expert testimony which “merely links a toxin to a disease,” or “work(s) backwards from reported symptoms to divine an otherwise unknown concentration of a toxin,” is insufficient to establish specific causation. 

Nemeth made unequivocally clear that the causation standards outlined in Parker apply to asbestos matters. In light of Nemeth, specific causation is a steeper, though not impossible, hurdle for plaintiffs to address in New York asbestos matters. Plaintiffs must rely on expert opinions that establish a scientific expression of dose with sufficient, case-specific, specificity, to establish proof of causation that a particular defendant’s product caused their injuries. Conclusory or qualitative statements do not suffice.  

Significantly, it appears that other jurisdictions are beginning to take a similar approach to causation in asbestos matters. On July 11, 2022, the United States Court for the Northern District of California in Shelton v. Air Liquid Systems Corp. rejected expert testimony that concluded “proof of significant exposure to asbestos is proof of specific causation” because “asbestos dust is so strongly associated with mesothelioma.” The Shelton Court stated that, without greater specificity, the expert testimony amounted to a “qualitative assessment” insufficient to establish specific causation as a matter of law.   

While it remains to be seen whether more jurisdictions will follow Nemeth and its progeny, defense counsel nationwide will be well served to argue for plaintiffs to provide expert testimony that meaningfully assesses exposures, dose, and causation in asbestos matters.