The New York Appellate Division, First Department issued an important ruling on May 21, 2024, in In Re: New York City Asbestos Litigation, Patricia Rasso, as independent executor of The Estate of Linda English, deceased v. Avon Products, Inc. et al., Index No. 190346/2018; Case No. 2023-05032, a talc matter overturning the lower court’s ruling on a choice of law question. The Court held that when a foreign resident’s exposure to a toxin occurs in foreign states, New York’s connection to the action “is tenuous at best.” This case involved a Texas-domiciled flight attendant who allegedly used the defendant’s talcum powder product during multiple layovers while in New York. In addition to living in Texas for most of her life, the decedent primarily used the product at issue in Texas over the course of decades, and she could not recall ever purchasing the product in New York during her deposition.

Consequently, the First Department held that Texas law concerning proof of specific causation in toxic tort cases applied and Bostic v. Georgia-Pac. Corp., 439 S.W. 3d 332, 336 (Tex. 2014) should be followed requiring plaintiff to provide epidemiological studies showing that the product at issue more than doubled plaintiff’s risk of injury. The plaintiff failed to meet this burden, as her experts opined only that decedent’s exposure to asbestos contributed to her mesothelioma, without any data quantifying her exposure or data showing at what level of exposure the risk of disease would double.

This is a significant win for defendants in talc litigation as New York courts have seen a drastic increase in foreign plaintiffs commencing actions in New York state courts where plaintiffs alleged use and exposure to powder products occurs outside of New York.

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