Supreme Court of New York, New York County, March 11, 2021
Defendant Vanderbilt Minerals LLC filed this instant motion for summary judgment, pursuant to CPLR 3212, dismissing all claims and causes of action, including any and all cross claims, against Vanderbilt or in the alternative granting partial summary judgment in favor of Vanderbilt as to any and all claims and causes of action, including cross-claims, relating to products manufactured by defendant American Art Clay Company, Inc. (AMACO). The plaintiff opposes the motion.
The case at issue stems from plaintiff and decedent Lorraine Berger’s June 22, 2018 diagnosis of mesothelioma that led to her death on April 30, 2019. The plaintiffs allege the decedent’s disease was causally connected to her asbestos exposure from products, which contained Vanderbilt’s asbestos-containing Talc. Vanderbilt’s motion contends that Vanderbilt talc did not cause the decedent’s mesothelioma, that the plaintiff cannot demonstrate the decedent’s injury was caused by exposure to any AMACO products, that Vanderbilt had no duty to warn the plaintiff, and that even if Vanderbilt had breached such a duty it would not have been a proximate cause of the decedent’s injury.
The court notes that an opinion on causation in a toxic tort should set forth: (1) a plaintiff’s exposure to a toxin; (2) that the toxin is capable of causing the particular illness, or “general causation”; and (3) that plaintiff was exposed to sufficient levels of the toxin to cause the illness, or “specific causation” (Parker v Mobil Oil Corp., 7 NY3d 434, 857 N.E.2d 1114, 824 N.Y.S.2d 584 [2006]).
Here, Vanderbilt argues that the plaintiffs’ complaint fails to demonstrate specific causation. Specific causation may not be established where a plaintiff’s exposure to a toxin released from a defendant’s product was “below the practical threshold for the dose necessary to cause the plaintiff’s disease” Parker, 7NY3d at 443.
Vanderbilt avers that their talc does not contain asbestos. The defendant notes that the Mine Safety and Health Administration (MSHA), which is tasked with the safety and health of people employed at mines, regularly analyzed talc ore from Vanderbilt’s predecessor, Gouverneur Talc Company’s (GTC) property and did not find asbestos in the minerals from the mine. Vanderbilt further notes that the U.S. Environmental Protection Agency also made it clear that no mineral component found in GTC’s talc was regulated or considered to be asbestos Vanderbilt submits admissible evidence, in the form of expert reports and peer reviewed mineralogical studies, which demonstrate that talc in Vanderbilt’s NYTAL 100HR, 99 and/or 300 did not contain asbestos. Further, Vanderbilt’s expert Dr. Mickey Guner, undertook a study to determine if NYTAL contained asbestos, and concluded that no asbestos was observed in NYTAL sample. Vanderbilt’s epidemiological expert Linda Dell, critically evaluated numerous scientific articles and research on talc and risk factors for mesothelioma, and “concluded to a reasonable degree of epidemiological certainty that the decedent’s exposure to talc did not cause her mesothelioma.” Further, Vanderbilt’s expert Dr. Tim D. Oury concluded, “that any exposure to Vanderbilt talc would not have been a significant contributing factor in the pathogenesis of Decedent’s tumor.”
The plaintiff opposes Vanderbilt’s motion and submits a report by Dr. Brent Staggs, a medical causation expert as well as an expert report of Dr. Mark Ginsburg. The court notes that the fact that the plaintiff and the defendant’s experts disagree on the underlying science raised a credibility issue, which cannot be resolved without jury consideration.
Consequently, the court denied defendant Vanderbilt’s motion for summary judgment.