ALBANY, N.Y. (Legal Newsline) - New York’s highest court threw out a $16.5 million jury verdict against a talc manufacturer, saying plaintiff experts failed to prove a woman’s cancer death was due to inhaling asbestos fibers in the talcum powder she claimed to have used daily for more than 20 years.
The New York Court of Appeals, citing prior decisions involving toxic exposure, ruled that plaintiffs suing over the death of Francis Nemeth didn’t provide sufficient evidence to conclude her peritoneal mesothelioma was caused by inhaling asbestos. The plaintiffs’ case rested on expert testimony from Dr. Jacqueline Moline and geologist Scott Fitzgerald, both of whom frequently work for lawyers representing asbestos claimants.
The April 27 decision comes several years after the high court tightened the standards for asbestos lawsuits by requiring plaintiffs to prove they were exposed to enough of the deadly fibers to become ill, rather than merely establishing they were exposed to any asbestos at all. In 2019, an intermediate court of appeals threw out a $7 million talc verdict for lack of evidence.
Plaintiff lawyers launched a wave of talc litigation based on the scientific opinions of a small group of experts, most of whom were veterans of other asbestos lawsuits. They include Fitzgerald, Dr. Moline and William Longo, who has earned millions by testifying he can identify asbestos fibers in talcum powder using electron microscopic techniques. Defendants including Johnson & Johnson say Longo mixes scientific and regulatory definitions to classify thin talc fibers as asbestos, allowing medical experts to say those fibers caused the plaintiff’s disease.
In this case, most of the defendants settled but wholesale talc supplier Whitaker, Clark & Daniels – the same company that won the 2019 talc-verdict reversal – took it to trial, where a jury awarded $16.5 million in damages that were later reduced to $2.2 million. An intermediate appeals court upheld the lower verdict, but Whitaker appealed again, and the state’s high court reversed, citing the lack of expert testimony indicating the dose of fibers Nemeth inhaled.
Fitzgerald told jurors he performed a “glove box test” on a sample of Desert Flower talc he said dated back to the time Nemeth used the product. He shook the fibers in the box to simulate how a person would apply talc to themselves, then measured the number of asbestos fibers captured by filters. He concluded 2.7 million asbestos fibers were released into the chamber with each application, compared to an estimated ambient exposure of 60,000 fibers per day the average person inhales from environmental sources.
Dr. Moline then used that calculation to tell jurors Nemeth had been exposed to enough asbestos to cause mesothelioma, which she described as a “signal tumor.”
The Court of Appeals concluded that wasn’t enough to support the verdict, saying Dr. Moline relied upon Occupational Safety and Health Administration (OSHA) safety standards and published studies with vague descriptions of a lethal dose of asbestos instead of rigorous scientific evidence.
“Plaintiff’s proof failed to demonstrate decedent’s level of exposure to asbestos in a manner that established causation,” the court said.
Fitzgerald attempted to quantify the exposure using what he described as a “breathability” study, the court went on.
“It was not,” the court said. “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.”
Defense lawyers in New York are relying on a pair of cases, Juni v. A.O. Smith from 2018 and the 2006 Parker v. Mobil Oil decision, to force plaintiffs to produce scientific evidence they were exposed to enough asbestos to cause disease. Until appeals courts started enforcing those decisions, plaintiffs relied on experts who used factory records and other materials to establish a plaintiff worked around asbestos or witness testimony that dust possibly containing asbestos fibers was in the air.
The majority opinion was written by Judge Michael Garcia. Judge Jenny Rivera, in a lengthy dissent, said the majority improperly overturned the jury verdict based upon the weight of the evidence, not its sufficiency.
“The majority has essentially adopted an impossible standard for plaintiffs,” Judge Rivera wrote.