Causation is one of the most frequently litigated issues in asbestos litigation, and the Appellate Division, First Department's April 9, 2020 decision in Nemeth v. Brenntag, 2020 NY Slip. Op. 02261 (Apr. 9, 2020, 1st Dep’t) is expected to have a significant impact on establishing specific causation. Following a jury trial against Whittaker Clark Daniels ("WCD"), one of the suppliers of allegedly asbestos-laden talc in the cosmetic talcum powder product used by a plaintiff who had been diagnosed with peritoneal mesothelioma, WCD appealed on the grounds that plaintiff's trial evidence was legally insufficient to establish specific causation—i.e., that purportedly asbestos-contaminated talc in a cosmetic talc product caused plaintiff's peritoneal mesothelioma. The First Department affirmed the verdict and held, in relevant part, that plaintiff's experts had provided sufficient evidence and testimony to establish specific causation.
At trial, plaintiff provided the following evidence relative to her use of the particular brand of talc at issue: (1) Plaintiff's own testimony that she used this brand of talcum powder every day for approximately seven minutes at a time over an 11 year period which made the air "very dusty" in small and unventilated bathrooms; (2) Plaintiff's expert geologist's testimony that agitating a sample of the brand of talcum powder plaintiff used in an enclosed "glove box" revealed millions of asbestos fibers; and (3) Plaintiff's medical expert's testimony based on scientific studies related to asbestos and mesothelioma in general, asbestos-laden industrial and cosmetic talc products, and the geologist's own glove box test findings. Significantly, Plaintiff's medical expert acknowledged that no epidemiological studies examining the link between the development of peritoneal mesothelioma (plaintiff's disease) and asbestos-contaminated cosmetic talc (the product at issue) exist. Of further note, plaintiff's experts acknowledged that they were unable to quantify the levels of asbestos to which plaintiff was exposed.
The court presented a lengthy analysis of case law governing the standards for establishing causation, beginning with the seminal New York Court of Appeals case governing causation in toxic tort cases: Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447 (2006). Parker held that to establish specific causation in toxic tort cases, a plaintiff must demonstrate that based on the amount, duration, and/or frequency of the plaintiff’s exposure to the toxic substance, the plaintiff’s exposure to the toxic substance was a substantial contributing factor in causing his disease. In the asbestos litigation context, in Lustenring v AC & S, Inc., 13 A.D.3d 69 (1st Dep’t 2004), a pre-Parker court had accepted as evidence of causation plaintiff’s expert testimony that the visible "clouds of dust" that resulted from plaintiff's use of the specific asbestos containing products at issue necessarily contained levels of asbestos sufficient to cause his mesothelioma.
Following Lustenring and Parker, in Matter of NYC Asbestos Litigation (Juni), 32 NY3d 1116 (2018), the New York courts examined numerous issues related to causation during several appeals of the Supreme Court's decision to set aside a verdict in favor of a plaintiff who alleged that he developed mesothelioma from using friction products found in cars as an auto mechanic. At the trial court level, the court held that plaintiff had failed to meet specific causation standards because plaintiff’s experts failed to show that plaintiff had been exposed to sufficient levels of respirable asbestos from the friction products at issue, and had instead relied only on expert testimony that plaintiff's asbestos exposure in general was "regular." The First Department affirmed, but noted that the Juni trial court's decision was not inconsistent with (and therefore did not disturb) the First Department's holding in Lustenring. The Court of Appeals ultimately affirmed, but made no finding with regard to specific causation.
The Nemeth court held that plaintiff's experts were not required to quantify precise levels of asbestos to which plaintiff would have been exposed in order to establish specific causation. Similarly, plaintiff's experts were not required to review epidemiological studies of asbestos-contaminated cosmetic talc exposure and the development of peritoneal mesothelioma, and then compare the levels of exposure in such studies to the relative estimated level of plaintiff's exposure. Rather, the court held that an evaluation of literature regarding the causal relationship between asbestos exposure and development of various forms of mesothelioma, plaintiff's own exposure testimony related to visible dust, and plaintiff's geologist's simulated testing was sufficient to pass muster under Lustenring and Juni.
The Nemeth decision is expected to influence judicial holdings on the heavily-litigated issue of causation in asbestos litigation. Rather than requiring the plaintiff's expert to specify the level of exposure to respirable asbestos fibers necessary to cause the disease at issue (peritoneal mesothelioma), the court accepted that evidence that exposure to asbestos in excess of ambient air levels could cause various forms of mesothelioma in general was a legally sufficient “quantification” of exposure to demonstrate specific causation. The decision may have a particularly significant effect on causation motions in cosmetic talc cases which often involve peritoneal mesothelioma claims and defense evidence that: (1) peritoneal mesothelioma may have causes other than asbestos exposure; and (2) mineral testing often reveals that many talc samples are not contaminated with asbestos, making it impossible to prove if purported contamination in the upstream supply could have caused any substantial or quantifiable exposure to respirable fibers to the downstream consumer. In light of the apparent scaling back of Parker’s specific causation standards in the asbestos litigation context, defendants are well advised to rigorously develop their own scientific, exposure, and epidemiological defenses to bolster their causation arguments in the context of both dispositive motion practice and the presentation of compelling trial evidence.
