Supreme Court of New York, New York County, September 22, 2022
In this NYCAL action, Decedent Maryann Purser (“Decedent”) alleged that she developed pleural mesothelioma through the use of Cashmere Bouquet talcum powder. Colgate moved for summary judgment, arguing that neither the general nor specific causation standards of Parker v. Mobil Oil Corp. were met here. Further, Colgate also contended that punitive damages were not warranted “as Colgate has taken affirmative steps to ensure that CB was safe for consumer use.” The plaintiff opposed both portions of Colgate’s motion.
The Court of Appeals previously instructed that “an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).” The court first found that the plaintiff met her burden on general causation. Although Colgate’s industrial hygienist Jennifer Sahmel noted that exposures to ambient asbestos concentrations of any fiber type are not associated with a significantly increased incidence of asbestos-related diseases,” the plaintiff’s expert “relie[d] upon peer reviewed articles in which she states within her report [e]xposure to asbestos fibers of all types and lengths are toxic, and short fibers more readily reach the mesothelial target cells of the pleura.” As such, the court found that the plaintiff “proffered evidence generally accepted within the scientific community which provides that a toxin (asbestos) is capable of causing the illness (pleural mesothelioma).” Thus, the court held that the plaintiff met their burden on general causation.
With regard to specific causation, the court found that Colgate failed to meet its initial burden. In support of their contention that the decedent was not suffer sufficient levels of exposure through her use of Cashmere Bouquet to cause her mesothelioma, Colgate submitted IH Sahmel’s mathematical modeling where she assumed the decedent’s worst-case scenario of exposure from her use of Cashmere Bouquet. In line with Sahmel’s opinions, Colgate argued that “even assuming every container of CB decedent was exposed to contained upper bound levels of asbestos, it would still not exceed cumulative background levels of exposure that the general population experienced in the United States.” However, the court held that Colgate failed to meet its prima facie burden. The court distinguished this case from Dyer v. Amchem, a recent Appellate Division opinion, where the appellant’s industrial hygienist used a study to support their conclusions. Here, the court determined that “Colgate relies upon the assumption of a worst-case scenario of decedent’s exposure to asbestos through her use of CB, without establishing the exposure decedent suffered.” The court further determined that Colgate’s reliance on the Court of Appeals’ recent decision in Nemeth v. Brenntag fails as Nemeth involves a plaintiff’s burden at trial, rather than their burden at the summary judgment stage.
Finally, the court held that punitive damages were not warranted here as “Colgate conducted independent testing performed under the guidance of the federal government and took preemptive measures to test for asbestos contamination.” As such, Colgate’s conduct did not rise above the level that an “actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.” Thus, the court granted Colgate’s motion in part.
Read the full decision here