In this case, it is alleged that the plaintiff, Keri Logiudice, contracted mesothelioma from her use of Cashmere Bouquet cosmetic talcum powder. The defendants, Cyprus Amax Minerals and Imerys Talc America Inc., mined and supplied talc to Colgate, the manufacturer of Cashmere Bouquet, and moved to dismiss the plaintiff’s sixth cause of action for market share liability.
In its decision, the court explained: “In a products liability action, identification of the exact defendant whose product injured the plaintiff is generally required (see Hymowitz v Eli Lilly & Co., 73 NY2d 487, 504 [1989]). Market share liability provides an exception to the general negligence rule that a plaintiff must prove that the defendant’s conduct was a cause-in-fact of the injury (Hamilton v Berretta, 96 NY2d at 240, 5 supra; see also Brenner v American Cyanamid Co., 263 AD2d 165, supra [‘market share liability is indeed a seldom used exception to the general rule in products liability actions that a plaintiff ‘must establish by competent proof … that it was the defendant who manufactured and placed in the stream of commerce the injury-causing defective product’].”
The court went on to grant the motion as Colgate, the manufacturer of the Cashmere Bouquet, was identifiable. As the court held: “Unlike in Hymowitz, plaintiffs are not left without a ‘remedy for injuries’ (73 NY2d at 507 supra) because they could recover one hundred percent of their damages from Colgate. Although it will be more difficult, or even impossible, for plaintiffs to demonstrate the liability (if any) of Cyprus and Imerys, market share liability does not afford potential recovery from each and every defendant. It was applied in Hymowitz because, among other things, plaintiffs would be left without any recourse whatsoever. While the potential for a full recovery against Colgate is preclusive of the application of market share liability here, it is also notable that plaintiffs may still be able to prove that Cyprus and Imerys are liable. Plaintiffs themselves note that ‘[a]dditional discovery from the filing defendant and its co-defendants may provide pertinent information as to whether Colgate mixed talc from several suppliers or whether each bottle was manufactured from one particular talc supplier’(Shaikh Aft 9/16/15, fn. 3, NYSCEF Doc 151).”