Court: Supreme Court of New York, Appellate Division, First Department

In September 2023, the trial court denied talc defendant Colgate-Palmolive Co.’s motion for summary judgment to dismiss the complaint against it. On appeal, the First Department unanimously reversed and granted Colgate’s motion.

“When a foreign resident’s exposure to a toxin occurs in foreign states, New York’s connection to the action is tenuous at best.” See Kush v. Abbot Labs., 238 AD2 172, 172 [1st Dept 1997].

Here, while plaintiff’s decedent allegedly used talcum powder manufactured by Colgate while in New York on a number of regular layovers as a flight attendant, her use of the product over the course of decades was overwhelmingly in Texas. Decedent also resided in Texas, and she could not recall ever purchasing the product in New York. For these reasons, the First Department determined that Texas law concerning proof of specific causation in toxic tort cases, outlined in Bostic v. Georgia-Pac. Corp. and Borg-Warner Corp. v. Flores, applied.

Under Texas law, where a plaintiff cannot adduce direct evidence of specific causation, they may rely on scientifically reliable evidence in the form of epidemiological studies, but only where the studies showed that the product at issue more than doubled plaintiff’s risk of injury. See Bostic v. Georgia-Pac. Corp., 439 SW3d 332, 336 [Tex 2014]. Here, plaintiff failed to meet that standard as her experts opined only that decedent’s exposure to asbestos contributed to the development of her mesothelioma, without quantifying her exposure or providing data showing what level of exposure risk the disease would double.

Thus, using Texas law, the First Department unanimously reversed the denial of Colgate’s motion for summary judgment, without costs.

Read the full decision here.