New York’s Court of Appeals recently reversed a $16,500,000 asbestos jury verdict in a case brought by decedent Florence Nemeth and her husband, who alleged that Mrs. Nemeth’s cancer was caused by her use of Desert Flower Talcum Powder. In Nemeth v. Brenntag North America, et al., 2022 WL 1217464 (Ct. App. NY Apr. 26, 2022), the state’s highest court overturned the decision on the grounds that the plaintiff’s experts failed to present sufficient evidence to prove that the talc-based cosmetic powder caused decedent’s peritoneal mesothelioma.
According to the suit, Florence Nemeth was diagnosed with peritoneal mesothelioma in 2012 and died from the disease in 2016 after using a powder made with talc supplied by Whittaker Clark & Daniels Inc. The plaintiff sued numerous defendants involved in the manufacturing and distribution of alleged asbestos-containing products that the decedent used throughout her lifetime, on the theory that each product proximately caused her illness. After all other defendants reached settlements in the case, trial proceeded against Whittaker as the sole remaining defendant.
In a 5-1 decision, the Court of Appeals found that the verdict was based on insufficient evidence and that the plaintiff’s two experts, although qualified, had failed as a matter of law to establish that Whittaker’s talc was the proximate cause of decedent’s illness. Dr. Jacqueline Moline, an internal medicine doctor, opined that the decedent’s “exposure to the contaminated talcum powder was a substantial contributing factor” in her death. Writing for the five-judge majority, Judge Michael Garcia said that the basis for Dr. Moline’s opinions failed to satisfy the requirements for establishing exposure to a toxin in an amount sufficient to cause decedent’s peritoneal mesothelioma. “Dr. Moline’s testimony did not simply ‘associate’ or ‘link’ asbestos to mesothelioma, she described it as a sentinel health event of asbestos exposure, and that virtually all cases of mesothelioma are related to asbestos exposure.” The majority held that these amounted to conclusory assertions of causation that were held insufficient to meet the requirements established in Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447 (2006). Under Parker, causation opinions must specify a plaintiff’s exposure to a toxin, that the toxin is capable of causing a particular illness, and that the plaintiff was exposed to sufficient levels of the toxin to cause the illness.
The majority further opined that the studies and scientific literature cited by Dr. Moline inadequately supported her conclusion as to proximate causation because Dr. Moline did not quantify what exposure level was necessary to cause the disease or establish that the decedent had been exposed to such a level.
The court also rendered insufficient the opinions offered by plaintiff’s expert geologist Sean Fitzergerald, who used a “glove box test” to demonstrate how the talcum powder could have been inhaled by the decedent. The majority ruled that this testimony was insufficient to establish causation because Fitzgerald could not offer an estimate of the amount that would be inhaled. “While a precise numerical value is not required, Fitzgerald’s test simply failed to provide any scientific expression linking decedent’s actual exposure to asbestos to a level known to cause mesothelioma.”
In the court’s single dissent, Judge Jenny Rivera opined that the evidence offered by plaintiff’s experts was sufficient to persuade a reasonable jury and that it had been presented in the “tried-and-true method [of asking] an expert for an opinion based on assumed facts and the existing data.” She further opined that the “majority has essentially adopted an impossible standard for plaintiffs” that would “effectively deprive toxic torts plaintiffs of their day in court.”
Nemeth reaffirms the court’s landmark decision in Parker v. Mobil Oil Corporation by reiterating that conclusory or qualitative statements fail to satisfy the standard of causation for expert testimony. The Nemeth ruling, which is not subject to appeal, is good news for defendants in New York toxic torts matters because it tightens the specific causation requirements for plaintiffs. New York trial and appellate courts have struggled to consistently apply the principles of Parker since the decision was handed down sixteen years ago. Nemeth settles the debate over what expert testimony is sufficient to support causation and serves as the new benchmark for meaningful proof that a particular defendant’s products are the cause of a plaintiff’s injuries.