Supreme Court of New York, Appellate Division, First Department, July 19, 2022

In 2017, Plaintiff Donna Olson (“Plaintiff”) filed suit against Johnson & Johnson (J&J), claiming that her lifelong use of J&J talcum powder exposed her to asbestos and caused her to develop mesothelioma. After a 12-week jury trial in 2019, a New York City jury found J&J liable and awarded damages to Plaintiff in the amount of $325 Million. In November 2020, the trial court reduced the award to $120 Million, but affirmed the finding of liability as to J&J. J&J subsequently appealed pursuant to CPLR 4404(a), arguing, in part, that the court should either set aside the verdict and enter judgement on behalf of J&J, or order a new trial because the verdict rendered at trial was contrary to the weight of the evidence. The appellate court unanimously agreed, reversed the verdict, and entered judgement in favor of J&J without costs.

The court’s decision noted that to prevail in a toxic tort matter in New York, a plaintiff must establish that a toxin is capable of causing a particular illness (general causation), and that the plaintiff was exposed to sufficient levels of the toxin to cause the specific illness (specific causation). In order to make such a showing, a plaintiff must present expert testimony that provides “a scientific expression of the level of exposure to toxins in defendant’s products that was sufficient to have caused the disease”. Matter of New York City Asbestos Litig. [Juni], 148 AD3d 233, 235 [1st Dept. 2017]. Importantly, the plaintiffs must also establish “sufficient exposure to a substance to cause the claimed adverse health effect”. Nemeth v. Brenntag N. Am., ___NY3d___, 2022 NY Slip Op 02769 *1 [2022]. Here, the court found that the plaintiff failed, as a matter of law, to establish the amount of asbestos to which Ms. Olson was allegedly exposed each time that she used J&J talcum powder products. Assuming, arguendo, that the plaintiff did provide sufficient evidence of exposure, the court found that her experts still failed to “set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to cause mesothelioma.” Importantly, the court noted that while the plaintiff’s medical expert testified that Ms. Olson’s mesothelioma could have resulted from a “significant exposure above normal background levels,” this testimony failed to prove causation, as testimony that “merely links a toxin to a disease” or “work(s) backwards from reported symptoms to divine an otherwise unknown concentration of a toxin” is insufficient. And finally, contrary to the plaintiff’s argument that J&J failed to preserve the issue of sufficiency of evidence of causation, the court found that J&J, at most, withdrew its objection of the admissibility of the expert testimony–not its argument that the testimony would be legally sufficient to establish causation. 

Read the full decision here