Nemeth v. American

• Decision Date: 09 April 2020
• Docket Number: 9765,Index 190138/14
• Parties: Francis NEMETH, etc., Plaintiff–Respondent–Appellant, v. BRENNTAG NORTH AMERICA, etc., et al., Defendants, Whittaker, Clark & Daniels, Inc., Defendant–Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 211

123 N.Y.S.3d 12

Francis NEMETH, etc., Plaintiff–Respondent–Appellant,

v. BRENNTAG NORTH AMERICA, etc., et al., Defendants,Whittaker, Clark & Daniels, Inc., Defendant–Appellant–Respondent.

9765

Index 190138/14

Supreme Court, Appellate Division, First Department, New York.

ENTERED: APRIL 9, 2020

Simpson Thacher & Bartlett LLP, New York (Bryce L. Friedman and Eamonn W. Campbell of counsel), for appellant-respondent.

Levy Konigsberg LLP, New York (Renner K. Walker and Robert I. Komitor of counsel), for respondent-appellant.

David Friedman, J.P., Judith J. Gische, Barbara R. Kapnick, Anil C. Singh, JJ.

GISCHE J.,

The most vexing issue framed by this appeal pertains to specific causation: was there sufficient evidence in the record for the jury to conclude that decedent, Florence Nemeth, was exposed to a quantity of asbestos causing her to contract peritoneal mesothelioma. As more fully explained below, the trial record contains sufficient evidence, consistent with the Court of Appeals' reasoning in Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114 (2006), to support the jury's verdict and conclusion that Nemeth was exposed to a sufficient quantity of asbestos to cause the disease.

Nemeth was diagnosed in November 2012 with peritoneal mesothelioma, a tumor of mesothelia cells in the gut or abdomen. She died shortly before this trial commenced. Desert Flower Talcum Powder (DFTP) was manufactured by codefendant Shulton, Inc. (Shulton) using raw talc. Whittaker, Clark & Daniels, Inc. (WCD), a distributor of minerals and pigments, supplied Shulton with raw talc. Plaintiff's claim, accepted by the jury, was that Nemeth was exposed to asbestos contaminated talc which WCD supplied to Shulton for its use in its production of DFTP, that WCD knew, or should have known, of such contamination, and that Nemeth's use of DFTP was a proximate cause of her peritoneal mesothelioma.

The jury found in favor of plaintiff, awarding the estate $15,000,000 and plaintiff's widower, $1,500,000 for loss of consortium. It apportioned fault, 50% to Shulton and 50% to WCD. WCD's motion for a judgment notwithstanding the verdict was granted by the trial court only to the extent of ordering a new trial on damages, unless plaintiff stipulated to reduced judgments in the respective amounts of $6,000,000 and $600,000. Plaintiff so stipulated. The motion was otherwise denied. After the court made adjustments pursuant to General Obligations Law § 15–108, the judgments entered against WCD were for $2,667,045.45 in favor of the estate and $266,704.55 in favor of decedent's spouse. WCD now appeals. Plaintiff cross-appeals, but only on issues related to damages.

WCD seeks Appellate Division review of the jury's determination of facts in accordance with two standards of review. It asks this Court to (1) examine the facts to determine whether the weight of the evidence comports with the verdict, and alternatively (2) to consider whether the evidence was insufficient as a matter of law, rendering the verdict utterly irrational ( CPLR 4404[a] ; Killon v. Parotta , 28 N.Y.3d 101, 108, 42 N.Y.S.3d 70, 65 N.E.3d 41 [2016] ). This Court may not disregard a jury verdict as against the weight of the evidence unless "the evidence preponderate[d] in favor of the [moving party] that [it] could not have been reached on any fair interpretation of the evidence" ( id. at 107, 42 N.Y.S.3d 70, 65 N.E.3d 41 [internal citation omitted] ). The remedy for a verdict that is against the weight of the evidence is to remit for a new trial. Where, however, the jury verdict is found insufficient as a matter of law, we must determine that the verdict is utterly irrational, meaning there is no valid line of reasoning or permissible inferences from the evidence presented by which a rational person could reach the jury's conclusion ( id. at 108, 42 N.Y.S.3d 70, 65 N.E.3d 41 ). The remedy for an utterly irrational verdict is a judgment in favor of the moving party ( id. ).

WCD's additional argument, that plaintiff's counsel's closing remarks unfairly influenced the jury, requires the Court to consider whether those remarks were fair comment or, if not, so prejudicial that they deprived WCD of a fair trial, warranting a new trial in the interest of justice (see e.g. People v. Galloway , 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 [1981] ; see also Peters v. Wallis , 135 A.D.3d 922, 923, 24 N.Y.S.3d 178 [2d Dept. 2016] ). Other arguments by the parties are evaluated according to whether they constitute errors of law affecting the verdict (see Evans v. Newark–Wayne Community Hosp , 35 A.D.2d 1071, 1072, 316 N.Y.S.2d 447 [4th Dept. 1970] ).

Against these highly deferential standards of review, the relevant trial evidence in this case may be summarized as follows:

Nemeth testified in a preserved videotaped deposition that over an 11–year period, from at least 1960 until 1971, she powdered her body with DFTP every day after showering, using a powder puff for two minutes to apply it all over her body. The air she breathed in was "[v]ery dusty" and after powdering, she would spend an additional five minutes every day wiping down powder from the sink, toilet, and floor using a damp paper towel. The bathrooms of the apartments where she lived when she used DFTP were "tiny," only about "5x6," with no windows, and no ventilation. Nemeth finished a box of DFTP every two weeks.

Nemeth was diagnosed with peritoneal mesothelioma in November 2012, approximately 40 months before she died in March 2016. She underwent three surgeries in an attempt to remove the tumors, but the disease eventually spread to every organ in her abdomen. Nemeth underwent years of chemotherapy and on four separate occasions, her abdomen was drained of accumulated fluids. Eventually, Nemeth's cancer metastasized to her lung and she died after spending some time in hospice care.

Shulton's former employee, Wiz Kaenzig, testified¹ that during the relevant time (1969 through 1971), WCD supplied Shulton with talc that it used in its products, including DFTP. He also testified that 99% of the talc that Shulton used during a substantial period of that 11–year period was obtained from WCD.

Sean Fitzgerald, a geologist, testified for plaintiff. Fitzgerald opined that the talc sold by WCD to Shulton during the relevant time was regularly and consistently contaminated with releasable asbestos. In addition to reviewing historical testing information, maps, surveys and other testing data, Fitzgerald based his opinion on his own testing of talc ore obtained from WCD source mines.

Fitzgerald also obtained a vintage sample of DFTP and conducted releasibility studies on it. The test involved placing the sample into a "glove box," which is a sealed, plexiglass chamber fitted with gloves and a filter. He testified that this testing method simulated Nemeth's use of talc in a close environment. After the talc was agitated within the chamber, Fitzgerald analyzed the fibers that he collected from the filter and dust wipes. He estimated that as many as 2,760,000 individual asbestos fibers were released during that test.

Calculating Nemeth's use of DFTP over the time, duration and frequency of exposure that Nemeth testified to, Fitzgerald concluded that she would have been exposed to billions and trillions of asbestos fibers on account of her use of DFTP over the 11–year period. He contrasted that with 60,000 fibers per day that a person living in an urban area breathes in as a result of ambient asbestos. He concluded that the number of released asbestos fibers from DFTP were several orders of magnitude higher than that found in ambient air.

To establish that WCD was knowledgeable about asbestos during the relevant time, plaintiff relied upon historic information about the known dangers of asbestos in talc. David Rosner, PhD, a history professor, testified that as far back as 1935, there were published studies reporting tremolite (a form of asbestos), as a potential contaminant of talc, and the presence of asbestos-related diseases in talc workers. Rosner also testified that WCD distributed raw asbestos as part of its business model from the 1930's to the early 1960's, possibly into the early 1970's. He testified that despite WCD's presumptive awareness of these dangers, it did not warn its customers of them, nor did WCD advise its customers to, in turn, advise their end users of those hazards.

Jacqueline Moline, M.D., an internal medicine doctor specializing in occupational and environmental medicine, was plaintiff's principal expert witness on the issues of both general and specific causation. On the issue of general causation, Dr. Moline opined that even brief or low-level exposure to asbestos, including asbestos contaminated talcum powder, causes all types of mesothelioma (including both pleural and peritoneal mesothelioma ); virtually all cases of mesothelioma are related to asbestos exposure; and that mesothelioma is a sentinel health event of exposure to asbestos, meaning its presence is evidence of asbestos exposure. She testified that there are no known safe levels of exposure to asbestos, even while acknowledging that exposure to asbestos in ambient air is not a causative agent for mesothelioma.

In reaching this conclusion, Dr. Moline relied on her clinical experience in treating hundreds of patients with mesothelioma and peer reviewed literature which included both epidemiological and case studies. She also relied on government standards and regulations pertaining to unacceptable levels of asbestos. Among the authorities she relied upon was the Welch article, a study of college-educated men with low levels of asbestos exposure who developed peritoneal mesothelioma, the Helsinki criteria, articles showing that tremolite-contaminated talc can cause asbestos related disease, a 1982 NIOSH study concerning talc miners and millers and their development of asbestos related disease, case studies including the Gordon,...