Manhattan Supreme Court, home to NYCAL
NEW YORK (Legal Newsline) - In an encouraging sign for talcum powder manufacturers facing a new wave of asbestos litigation in New York, a state appeals court has thrown out a 2017 jury verdict in a talc case because the plaintiff’s experts failed to explain how she could have contracted cancer from the cosmetic powder.
The decision illustrates the increased scrutiny New York’s Appellate Division is placing on asbestos claims following last year’s Juni decision by the state’s highest court, which requires plaintiffs not only to prove asbestos can cause cancer as a general proposition but to show how the specific product they are suing over could have caused their illness.
Talc manufacturers deny their products contain any asbestos fibers at all, but even if plaintiff experts are to be believed, the amount of fibers anyone could inhale from using the product would be miniscule compared with the industrial exposures more commonly associated with mesothelioma, a deadly cancer of the chest cavity.
The decision in DiScala v. Charles B. Chrystal Co. is particularly good news for Johnson & Johnson, which earlier this month was socked with $300 million in punitive damages in a talc case in which the jury also awarded plaintiff Donna Olson and her spouse $25 million in compensatory damages. Johnson & Johnson is appealing the decision, saying plaintiff expert Dr. William Longo lied on the stand about his testing for asbestos in Johnson’s Baby Powder as well as other legal errors during the trial.
The company faces at least two more upcoming trials in New York’s specialized court for asbestos lawsuits known as NYCAL, which is accused of being a pro-plaintiff “judicial hellhole” by defendants and tort reform advocates.
In a two-paragraph decision released June 20, the Appellate Division reversed an August 2017 decision against Whittaker Clark & Daniels over cosmetic talc that initially resulted in a $7 million jury verdict that Judge Martin Shulman later slashed to $2.5 million, after taking into account money the plaintiff received from prior settlements.
Citing Juni as well as a predecessor decision, Parker v. Mobil Oil in 2006, the appeals court said the plaintiff “failed to adduce evidence that the decedent was exposed to sufficient levels of asbestos in defendant's talc to cause mesothelioma.”
“Plaintiff's causation expert merely opined that the decedent's exposure to unspecified `detectable’ or `significant’ levels of asbestos in the talcum product she used caused her mesothelioma,” the court ruled. “Plaintiff was not required to quantify the decedent's exposure level with exact mathematical precision,” it went on, but the evidence “failed to establish a level of exposure sufficient to cause the illness.”
In Juni, the New York Court of Appeals upheld a 2017 decision by the Appellate Division throwing out a verdict in favor of a plaintiff who blamed asbestos dust from Ford Motor Co. automotive brake pads for causing his mesothelioma. The decision was based on the earlier Parker decision, which NYCAL judges largely ignored, requiring plaintiffs to provide some “scientific expression” of how the product they are suing over could cause their injuries.
Asbestos lawyers typically rely on expert witnesses who testify the fibers can cause cancer, but under the Parker and Juni decisions, defense lawyers say, plaintiffs also must present evidence, most likely from experts like industrial hygienists, to explain how they inhaled or absorbed enough of the toxin contained in a specific product to cause disease.
Whittaker Chalk & Daniels was sued by the heirs of Joan Robusto, who died of mesothelioma. They accused a number of companies of causing her illness but after most of them settled, the remaining defendant was accused of selling asbestos-containing talc used in Shulton’s Desert Flower Dusting Powder. In its motion for appeal, Whittaker Chalk said experts lacked the legal foundation to say the powder was “regularly and consistently” contaminated with asbestos, failed to identify any specific lots that were contaminated, and failed to explain how Robusto could inhale enough fibers from talc to make her sick.
The lawsuits against Johnson & Johnson also hinge upon expert testimony by witnesses including Longo who say they have detected asbestos fibers in samples from previously opened bottles plaintiff lawyers obtained on eBay and other sources. Johnson & Johnson has complained there is no accurate chain of custody for the samples or a way to determine whether they have been contaminated with asbestos from the ambient air.