Nemeth v. Brenntag N. Am.
| Decision Date | 26 April 2022 |
| Docket Number | 24 |
| Citation | 38 N.Y.3d 336,194 N.E.3d 266,173 N.Y.S.3d 511 |
| Parties | Francis NEMETH, Individually and as Personal Representative of the Estate of Florence Nemeth, Respondent, v. BRENNTAG NORTH AMERICA, as Successor in Interest to Whittaker, Clark & Daniels, Inc., et al., Defendants, Whittaker, Clark & Daniels, Inc., Appellant. |
| Court | New York Court of Appeals Court of Appeals |
38 N.Y.3d 336
194 N.E.3d 266
173 N.Y.S.3d 511
Francis NEMETH, Individually and as Personal Representative of the Estate of Florence Nemeth, Respondent,
v.
BRENNTAG NORTH AMERICA, as Successor in Interest to Whittaker, Clark & Daniels, Inc., et al., Defendants,
Whittaker, Clark & Daniels, Inc., Appellant.
No. 24
Court of Appeals of New York.
April 26, 2022
Simpson Thacher & Bartlett LLP, New York City (Bryce L. Friedman, Eamonn Campbell and Stephanie Hon of counsel), for appellant.
Belluck & Fox, LLP, New York City (Seth A. Dymond of counsel), and Levy Konigsberg LLP, New York City (Robert I. Komitor, Renner K. Walker and Jerome H. Block of counsel), for respondent.
Crowell & Moring LLP, New York City (Gary A. Stahl of counsel) and Washington D.C. (William L. Anderson of counsel), for Chamber of Commerce of the United States of America and another, amici curiae.
Gordon & Rees Scully Mansukhani LLP, New York City (Jacob C. Cohn, Erik C. DiMarco and Mohammad M. Haque of counsel), Foley & Mansfield, PLLP, New York City (Stephen Novakidis of counsel), Patterson Belknap Webb & Tyler LLP, New York City (Thomas P. Kurland of counsel), and Goldberg Segalla LLP, Newark, New Jersey (David E. Rutkowski of counsel), for Colgate-Palmolive Company and others, amici curiae.
Simmons Hanly Conroy, LLC, New York City (Olivia P. Kelly of counsel), for Richard L. Kradin and others, amici curiae.
OPINION OF THE COURT
GARCIA, J.
Plaintiff's spouse used a commercial talcum powder daily for a period of more than ten years during the 1960s and early 1970s. Decades later, she developed mesothelioma and died as a result. Plaintiff brought this action, alleging that use of the cosmetic powder was a proximate cause of decedent's illness. A jury agreed and awarded damages. Because plaintiff's proof of causation was insufficient as a matter of law, we now reverse and dismiss the complaint against defendant.
I.
Florence Nemeth was diagnosed with peritoneal mesothelioma1 in 2012 and passed away from the disease in 2016. Plaintiff—decedent's husband—sued an array of defendants involved in the manufacturing and distribution of certain products alleged to contain asbestos to which decedent was exposed over the course of her lifetime, on the theory that each product proximately caused her illness. Plaintiff alleged that decedent used lawn care products containing asbestos; worked with construction materials containing asbestos during home renovations; and inhaled asbestos fibers when she laundered the clothing her son wore as an elevator repairman. Plaintiff also alleged that defendant-appellant
Whittaker supplied defendant Shulton with talc contaminated with asbestos that was then used in a commercial talcum powder, Desert Flower, which decedent applied daily from 1960 until 1971. Plaintiff settled with all other defendants, and the case went to trial against Whittaker only.
At trial, the jury viewed a videotaped deposition of decedent, in which she explained that she used Desert Flower daily during the relevant time frame, applying the product while inside small unventilated bathrooms and later cleaning up the residual powder. This routine lasted approximately seven minutes each day. Plaintiff then called a geologist, Sean Fitzgerald, who testified about a test—referred to as a "glove box test"—in which he agitated a vintage sample of Desert Flower within a small, sealed plexiglass chamber to simulate decedent's use of the talc and to capture the released asbestos fibers, in an effort to "target[ ] the actual exposure." He testified that he strategically placed filters inside the chamber to simulate "breathing zones." He concluded that the asbestos fibers in the sample of Desert Flower were "significantly releasable" and that 2.7 million fibers were released into the air of the chamber during his test and so, multiplying that number by the amount of time, duration, and frequency of decedent's exposure, he concluded that she must have been exposed to "thousands to millions of fibers, billions and trillions when you add it up through repeated use." Fitzgerald compared this to
the ambient level, or what "an average person living in an urban area breathes in," of 60,000 fibers per day.
Dr. Jacqueline Moline, a doctor of internal medicine, also testified for plaintiff. She told the jury that mesothelioma is a "sentinel health event" or "signal tumor," meaning that "if someone develops that cancer, ... then it signals that they've had exposure to that particular substance." She testified that in reaching her conclusions she relied on clinical experience treating patients with mesothelioma, peer reviewed literature discussing epidemiological and case studies, and government standards and regulations governing acceptable levels of asbestos. Dr. Moline concluded that, although "not every inhalation of asbestos fibers results in peritoneal mesothelioma," because "some exposures to asbestos ... are trivial and don't increase a person's risk," Desert Flower was "a substantial contributing factor" to decedent's peritoneal mesothelioma. Relying on Fitzgerald's testimony regarding releasable asbestos fibers, she testified that decedent's exposure was "at levels at which multiple studies have shown elevated rates of mesothelioma."
The jury returned a verdict in plaintiff's favor, awarding $15 million to the estate and $1.5 million to plaintiff for loss of consortium, and apportioned fault equally between Whittaker and Shulton.2 Whittaker moved for judgment notwithstanding the verdict, arguing that it was not supported by legally sufficient evidence as to causation. The trial court denied the motion.
A divided Appellate Division modified the judgment in connection with the damages awarded, concluding that certain offsets relating to settling defendants had been improperly calculated, but otherwise affirmed, holding that there was sufficient evidence, "consistent with the Court of Appeals’ [precedent] ... to support the jury's verdict and conclusion that [decedent]
was exposed to a sufficient quantity of asbestos to cause the disease" ( 183 A.D.3d 211, 215, 123 N.Y.S.3d 12 [1st Dept. 2020] ). The court determined that
"Fitzgerald's testimony about the amount of asbestos released in a glove box analysis of [Desert
Flower], along with the timing, duration and frequency of [decedent's] use of that product, with his conclusion that the amount of asbestos greatly exceeded by ‘several [orders] of magnitude’ the amount of asbestos fibers in ambient air, presents a sound basis for the jury's conclusion" ( id. at 230, 123 N.Y.S.3d 12 ).
One Justice dissented, asserting that plaintiff had both "failed to present expert evidence specifying the level of exposure to respirable asbestos that would have been sufficient to cause peritoneal mesothelioma" and that "plaintiff's evidence falls short of establishing that Mrs. Nemeth ‘was exposed to sufficient levels of the toxin to cause the illness’ " ( id. at 236–237, 123 N.Y.S.3d 12 [Friedman, J., dissenting], quoting Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584, 857 N.E.2d 1114 [2006] ). The dissent concluded that the glove box study was insufficient to establish decedent's exposure level because it did not estimate the quantity of asbestos fibers to which the decedent would have been exposed, and that Dr. Moline's testimony failed to provide more than "vague, conclusory and subjective terms ... characteriz[ing] both the level of asbestos exposure sufficient to cause peritoneal mesothelioma ... and the level of asbestos exposure to which [decedent] allegedly was subjected" ( id. at 241–242, 123 N.Y.S.3d 12 ). The Appellate Division granted leave to appeal to this Court.
II.
A court may set aside a jury verdict on the ground that it is not supported by legally sufficient evidence where "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial" ( Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ; CPLR 4404[a] ). For the reasons that follow, we conclude that plaintiff failed to introduce sufficient evidence to support the jury's verdict.
We agree with the dissent below that plaintiff's proof failed as a matter of law to meet our test for proving causation in toxic tort cases, and we take the opportunity to reaffirm our requirements in such cases. As we noted sixteen years ago, "[i]t is well-established that an opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause
the illness (specific causation)" ( Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584, 857 N.E.2d 1114 [2006] ). In Parker, the toxin at issue was benzene in gasoline, the illness was acute myelogenous leukemia, and the expert testimony described plaintiff's exposure as only "frequent[ ]," "excessive," and "far more" than exposure in epidemiological studies ( id. at 449–450, 824 N.Y.S.2d 584, 857 N.E.2d 1114 ). We acknowledged that, because there are times that "a plaintiff's exposure to a toxin will be difficult or impossible to quantify by pinpointing an exact numerical value," "it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community" ( id. at 447–448, 824 N.Y.S.2d 584, 857 N.E.2d 1114 ). We noted that there may
be several ways that an expert might demonstrate causation, for example by using mathematical modeling, but that any method used must be...
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