Court: Supreme Court of New York, Erie County
In this asbestos matter, plaintiffs claimed that decedent, Jeffrey Campise, was exposed to asbestos through consumer talcum powder products. Plaintiffs filed suit against a number of manufacturers of cosmetic-talc products, along with Whitaker, Clark & Daniels (WCD), as an alleged supplier of talc to the aforementioned manufacturers. WCD filed a motion for summary judgment seeking to dismiss plaintiffs’ claims in their entirety.
As a preliminary matter, WCD argued it was speculative as to whether its talc was in the specific products used by Campise, as there was no information regarding final batch formulations of the talc products at issue. The court, however, noted that the existence of a product defect, as well as the identity of the manufacturer of the products, are issues of fact to be resolved by a jury. WCD also argued the talc it distributed did not contain asbestos. In support of this argument, providing the affidavit of Alan M. Seagrave, a professional Geologist, who opined that WCD’s talc was known to be “asbestos-free” due to testing prior to distribution at the relevant times. In response, plaintiffs submitted the affidavit of Dr. Jacqueline Moline, who summarized the history of the presence of asbestos in talc. Ultimately, the court determined that a triable issue of fact existed as to the presence of asbestos in WCD’s talc.
Regarding causation, WCD further argued that cosmetic talc does not cause mesothelioma, generally, and that the levels of talc inhaled by Campise were not enough to cause mesothelioma. The New York Court of Appeals decision in Parker v. Mobil Oil Corp. established a three-part test for establishing causation in toxic-tort matters: (1) plaintiff was exposed to a toxin (2) the toxin is capable of causing the particular illness (general causation), and (3) plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation). Importantly, the New York Court of Appeals recently noted in Nemeth v. Brenntag that there must be some “scientific expression linking decedent’s actual exposure to asbestos to a level known to cause mesothelioma” rather than general, subjective, and conclusory assertions.
Here, WCD argued that plaintiffs failed to meet the general causation prong of Parker because there is not an increased risk of mesothelioma from exposure to talc. In support of its argument, WCD cited the report of Kenneth A. Mundt, Ph.D., who opined that the epidemiology related to talc use shows that it does not cause or increase the risk of developing mesothelioma. WCD also cited studies of talc miners and millers, which showed no cases of mesothelioma. In response, plaintiffs submitted an affidavit by Moline, which concluded that historic talcum powder exposure is a causative factor in the development of mesothelioma. Plaintiffs also submitted published studies and reports that concluded the same. Ultimately, the court determined that the evidence provided by plaintiffs was sufficient to create factual issues regarding general causation.
Furthermore, WCD argued that plaintiffs failed to meet the specific causation prong of Parker. WCD submitted the report of Dr. Jennifer S. Pierce, M.S., Ph.D., which cited several reports and studies concluding that there are cumulative asbestos thresholds below which there is no risk of developing mesothelioma. Pierce’s report argued that, in the instant matter, plaintiff’s exposure would have been (1) well below the cumulative asbestos exposure permitted by the federal government in occupational settings (2) below that associated with breathing ambient air, and (3) far too low to increase his risk of asbestos-related disease. In response, plaintiffs submitted a report by Moline, who opined that exposure to dust from alleged asbestos-containing talc products were above levels shown to cause mesothelioma. Specifically, Moline noted that there is consensus among medical and scientific professionals that asbestos fibers of any size can cause mesothelioma. Moline then reviewed asbestos exposure level data from talc products collected by various scientific professionals and compared that data to background exposure as illustrated in peer-reviewed literature to determine that exposures from talc are consistently higher than background exposures. Finally, Moline used these exposure studies, along with Campise’s deposition testimony, to produce estimates as to Campise’s alleged exposure levels to each product. Based on these facts, the court held that Moline’s report exceeded the requirements set forth in Parker and Nemeth and determined that Moline’s opinion constituted sufficient evidence of specific causation of overcome summary judgment.
Lastly, WCD argued that plaintiffs were not entitled to punitive damages, which are awarded to punish and deter rather than to compensate the injured party. WCD noted that it had third-party laboratories test its talc for the presence of asbestos as soon as it was aware of a potential concern. WCD also provided a letter from the FDA denying a petition requesting that talc products be labeled with an asbestos warning and stating that such products do not cause a health hazard. In response, plaintiffs provided various materials, arguing that WCD knew the talc that it distributed contained asbestos and that asbestos is hazardous. Here, however, the court found that plaintiff failed to meet the “heavy burden” necessary to find that WCD’s acts were “wanton, reckless and malicious,” or “rose to the deliberate concealment of dangerous levels of asbestos.” As such, the court granted WCD’s motion for summary judgment on the punitive damages claim.
Read the full decision here.