Plaintiff’s Failure to Raise Triable Question of Fact on Causation Leads to Grant of Summary Judgment for Talc Defendant State of New York, Supreme Court, July 22, 2019
NEW YORK – Marsha Madar filed suit against Colgate-Palmolive, alleging she developed perionteal mesothelioma as a result of her use of Cashmere Bouquet talcum powder in the 1970s. It was undisputed that she shared with her mother and sister just two bottles of Cashmere Bouquet. She also recalled using hundreds of bottles of other talcum powder. Colgate moved for summary judgment arguing that:
- The talc in its Cashmere Bouquet did not contain asbetsos
- There is no general causation as a matter of law, because even assuming that the talc in Cashmere Bouquet did contain trace amounts of fibrous asbestos, that asbestos was not capable of causing mesothelioma
- There is no specific causation as a matter of law because, even if the talc in its Cashmere Bouquet did contain fibrous asbestos and was capable of causing mesothelioma, Madar was not exposed to sufficient levels of asbestos from Cashmere Bouquet to have caused her mesothelioma.
The court began its analysis and honed in on the third point of Colgate’s argument, specific causation. Relying on the Juni opinion, the court noted that a “causation expert must still establish that a plaintiff was exposed to sufficient levels of toxin from the defendant’s products to have caused that disease.” Colgate met that burden using its expert, Jennifer Sahmel, who opined that “there is no evidence that she was exposed to levels of asbestos associated with a statistically significant increased risk of asbestos-related disease, including peritoneal mesothelioma.” The plaintiff failed to raise a triable question of fact once the burden shifted back to the plaintiff according to the court. The court declined to address the issue as to punitive damages and entered summary judgment in favor of Colgate Palmolive.
Read the case decision here.