Court: Supreme Court of New York, Appellate Division, First Department
The Supreme Court of New York, Appellate Division, First Department earlier this week unanimously granted defendants Johnson & Johnson and LTL Management LLC’s — (J&J collectively) — appeal of its causation motion for summary judgment and dismissed the complaint against J&J in a reversal of the Supreme Court, New York County (NYCAL) April 2024 decision.
The First Department held that J&J made a prima facia showing of entitlement to summary judgment by submitting epidemiological studies and expert testimony stating that plaintiff’s use of J&J talcum powder could not have caused plaintiff’s mesothelioma.
In response, according to the First Department, plaintiff failed to raise an issue of fact and did not adduce evidence that plaintiff was exposed to levels of an alleged toxin in J&J’s products sufficient to cause his illness. While plaintiff’s epidemiology expert did offer an estimate of plaintiff’s alleged lifetime exposure, the First Department found this to be insufficient as the expert described the calculation as made only “by way of example” because “there are many variables that comprise an individual’s total exposure.” Moreover, plaintiff’s pulmonologist conceded that he did not calculate plaintiff’s alleged lifetime dose of exposure to asbestos through his use of J&J products but rather relied upon the epidemiology expert’s example. For these reasons, the First Department found that plaintiff’s evidence fell short of satisfying the requirement of causation.
Of note, the First Department stated that even if plaintiff set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to cause his mesothelioma, plaintiff still failed to proffer evidence that the alleged lifetime exposure would have exceeded that threshold dose.
Thus, J&J’s appeal was unanimously granted.
Read the full decision here.
