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Ahead of talc test, NYC judge gives good news to asbestos defendants

By Daniel Fisher | Feb 1, 2019

NEW YORK (Legal Newsline) - The chief judge of New York’s controversial asbestos court has dismissed a lawsuit by a man who claimed his cancer was caused by exposure to asbestos fibers in floor tiles, in a significant ruling that may make it harder for plaintiffs to win money from outlier defendants whose products presented a marginal risk of exposure at best. 

The January 31 decision could have especially strong implications for lawsuits over talcum powder, which even plaintiff experts say contains only trace amounts of asbestos. Plaintiff lawyers are hoping for big results in the court, which is known as New York City Asbestos Litigation and has a reputation as a plaintiff's paradise.

Four talc trials were scheduled to begin in January in NYCAL.

The five-page ruling by Justice Manuel J. Mendez comes several months after the New York Court of Appeals tightened the standards for asbestos lawsuits in Juni v. Ford Motor Co. Under Juni, plaintiffs must not only show that asbestos can cause cancer as a general proposition, but that the specific product they are suing over contained enough of the deadly fibers to cause their disease.

The decision in Mantovi v. American Biltrite reflects those tighter standards, with Justice Mendez writing that the defendants successfully showed the fibers embedded in its floor tiles couldn’t cause mesothelioma, a deadly cancer of the pleural lining linked to asbestos exposure.

“Generally courts have been reluctant to grant summary judgment where the asserted defense is based on a lack of scientific causation,” said Oded Burger, a partner with Goldberg Segalla who defends companies in asbestos lawsuits. “But this shows it is a not insurmountable burden in New York City.”

Thomas Mantovi sued American Biltrite, claiming he was exposed to asbestos fibers contained in the company’s floor tiles while he worked as an insurance agent inspecting construction sites in the 1960s and '70s. Before he died of mesothelioma in 2018, Mantovi testified that he visited job sites where floor tiles were cut and laid down and that he was exposed to asbestos dust.

American Biltrite, in its motion to dismiss, presented evidence from industrial hygienists and physicians that the floor tiles contained relatively harmless chrysotile asbestos that was encapsulated in resin and couldn’t be released into the air in deadly form. The company also pointed to other likely sources of the plaintiff’s exposure, including his service on U.S. Navy ships and years working at a Mobil refinery.

The plaintiff’s expert, Dr. David Zhang, supplied a report concluding Mantovi had a history of significant levels of asbestos exposure, but that each source of exposure could have contributed to his disease. The expert didn’t point to any studies showing how American Biltrite’s Amtico floor tiles could have caused the plaintiff’s disease, however, and made no distinction between chrysotile fibers and far deadlier amphibole fibers Mantovi could have been exposed to in other settings.

The plaintiff’s evidence failed to meet the standards under Juni and predecessor decisions in New York, Justice Mendez wrote, which require experts to estimate exposure with mathematical models and compare that exposure to levels in studies demonstrating it can cause disease. 

Every person is exposed to significant amounts of asbestos in daily life, so plaintiffs must show their exposure was higher than background levels and, under New York’s tighter rules, how the product they are suing over caused that exposure.

“Plaintiff’s conclusory argument that Dr. Zhang’s trial testimony will rest on an `overwhelming scientific consensus’ is unavailing,” the judge wrote. Defense experts estimated that Mantovi’s exposure to fibers from floor tiles was less than 1/600th of the lowest level of ambient exposure not associated with disease, making it impossible to show the tiles were a significant contributing factor to his disease.

Justice Mendez is the sole judge who decides summary judgment motions in NYCAL, which handles all asbestos litigation in the five-borough New York City area and represents one of the busiest asbestos courts in the country. Johnson & Johnson and other talc manufacturers are likely to use this decision as a template for their own motions to dismiss hundreds of lawsuits claiming talc causes mesothelioma and other cancers.

"This is the first decision out of NYCAL that demonstrates you can obtain summary judgment where there's some alleged exposure, but the science shows that such an exposure did not increase the risk of the disease,” Burger said.

To prevail, plaintiffs will have to find experts willing to testify that there is enough asbestos in talc to make a daily dusting with the powder a deadly risk. Talc manufacturers maintain there is no asbestos in their products, a statement supported by numerous tests. 

Plaintiffs say talc was contaminated with asbestos in the 1960s and 1970s, but now, under this ruling, will have to find experts willing to testify that the amount of asbestos in talc back then was sufficient to increase plaintiffs’ exposure significantly above background levels.

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Organizations in this Story

Amtico International Inc. New York City Asbestos Litigation New York Court of Appeals

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