Nemeth Is the Law – Causation in NYCAL Talc and Asbestos Cases

Husch Blackwell LLP

In Matter of New York City Asbestos Litigation, 171 N.Y.S.3d 503 (2022), the First Department unanimously reversed a judgment previously entered in plaintiffs’ favor and directed entry of judgment in favor of defendant Johnson & Johnson.  Citing Nemeth, the court found that plaintiffs failed, as a matter of law, to establish sufficient exposure to a toxin so as to cause adverse health effects.  Dr. Jacqueline Moline, the plaintiffs’ internal medicine expert, failed to set forth a scientific expression of the minimum lifetime exposure to asbestos necessary to cause mesothelioma. As a result, the expert’s testimony that mesothelioma could have resulted from “significant exposure above the normal background levels” was insufficient under Nemeth. The court expressly rejected the expert’s testimony that exposure quantified as “excessive” or “far more than others” was adequate to meet Nemeth’s standards.    

Shortly after, the First Department overturned denials of summary judgment motions for American Biltrite (“ABI”) in three floor tile cases. 

In Dyer v. Amchem Products Inc., 171 N.Y.S.3d 498, 500 (2022), the First Department unanimously reversed an order denying ABI’s motion for summary judgment and granted the motion. The court reiterated Nemeth’s holding that although causation does not aways require precise quantification of exposure to a toxin, causation does require plaintiffs to prove sufficient exposure to a substance to cause the claimed health effect. ABI relied on a 2007 epidemiological study conducted by John W. Spencer, an industrial hygienist, to establish that cutting floor tiles did not produce airborne asbestos beyond already-present ambient levels. Based on the study, ABI’s experts calculated that lifetime exposure to respirable asbestos from vinyl tile was insufficient to cause decedent’s lung cancer. Plaintiff’s expert, Dr. Mark Ellis Ginsburg, MD, relied on different studies, but generally concluded there was no safe minimum level of asbestos regarding lung cancer, manipulation of floor tiles could result in greater than ambient exposure levels, and the dust was “certainly dangerous in concentration.” The court noted that Nemeth held “such broad pronouncements and conclusions will not satisfy a plaintiff’s causation burden.” 

Similarly, in Killian v. Armstrong Contracting & Supply, Inc., 172 N.Y.S.3d 19 (2022), the court unanimously reversed an order denying summary judgment for ABI and granted the motion. Again, ABI’s expert relied on calculations arising from ABI-funded experiments. The expert opined that the decedent was exposed – if at all – to asbestos amounts similar to those in ambient air and that exposure was insufficient to cause cancer.  Because Plaintiff failed to offer an expert to counter ABI’s calculation of decedent’s lifetime cumulative exposure, no question of fact was raised regarding its validity. Accordingly, decedent’s deposition testimony alone was insufficient to raise an issue of fact regarding whether he was exposed to sufficient quantities of respirable asbestos from ABI’s products to cause his lung cancer.  

In Pomponi v. A.O. Smith Water Products Company, 172 N.Y.S.3d 680 (2022), the court again reversed an order denying summary judgment for ABI and granted the motion.  In the motion for summary judgment, ABI established a prima facie lack of specific causation. ABI submitted a report again affirmed by Spencer.  In this case, Spencer opined that decedent’s work near tile installations exposed him to a cumulative dose “indistinguishable from most ambient measurements and below occupational exposure levels.” Plaintiff also showed that the decedent worked near dust generated from asbestos-containing products and produced expert testimony from Dr. Ginsburg that such dust “necessarily contain[ed] enough asbestos to cause mesothelioma.” However, because Plaintiff’s expert failed to provide any correlation between the asbestos fiber levels Plaintiff may have been exposed to and the amount of inhaled asbestos necessary to cause decedent’s lung cancer, the court found it insufficient under Nemeth.

Notably, in all three cases, the expert affidavits were sufficient to carry defendant’s burden.

So What?

Nemeth is alive and well, and, contrary to the popular belief, it is actually being enforced by the First Department. The case and its progeny reaffirm the obvious, but disregarded, principle that conclusory cumulative exposure statements by plaintiffs’ experts are insufficient to satisfy the standard of causation under New York law. Most importantly, Nemeth appears to have opened the door for successful summary judgment motions on causation grounds in a jurisdiction long regarded as hopeless for defendants.  Whether this trend carries across New York state courts and elsewhere remains to be seen. Check back often for updates as we continue to report on this emerging topic. 

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Husch Blackwell LLP

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