Products Liability Law Daily Estimate of toxic substance exposure can establish causation in talcum powder case
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Tuesday, April 14, 2020

Estimate of toxic substance exposure can establish causation in talcum powder case

By Leah S. Poniatowski, J.D.

Jury verdict upheld against mineral supplier to powder manufacturer in mesothelioma case; damages award corrected to $3.3 million.

The supplier of talc to a cosmetic talcum powder manufacturer could not establish that the methodology used by a consumer’s expert to demonstrate causation in a mesothelioma case was improper, a New York state appellate panel held, upholding the jury verdict against the company. Additionally, the supplier could not show that it was deprived of a fair trial or that the jury instructions were improper. The appellate court corrected the calculation used to determine the damages award, increasing it to $3,300,000, but otherwise affirmed the lower court’s ruling (Nemeth v. Brenntag North America, April 9, 2020, Gische, J.).

The consumer, a woman, testified that she used the Desert Flower Talcum Powder from 1960 until 1971, using a powder puff to apply it all over her body daily. She stated that she finished a box of the product every two weeks and would have to wipe the dust from the powder off the surfaces in her small, unventilated bathroom every day. In 2012, she was diagnosed with peritoneal mesothelioma. She underwent several surgical procedures and years of chemotherapy, but the cancer spread throughout her body, metastasizing in her lung. She died in March 2016.

The powder was manufactured by Shulton, Inc. from raw talc that was supplied by Whittaker, Clark & Daniels, Inc. (WCD). The consumer filed a lawsuit against several entities, alleging that her use of the powder was the proximate cause of her mesothelioma, and that Shulton and WCD knew or should have known of the asbestos contamination. Shulton settled with the consumer.

Prior proceedings. In the trial against WCD, the jury found in favor of the consumer’s estate, awarding $15,000,000 to the estate and $1,500,000 to the consumer’s widower. The jury apportioned 50 percent of the fault to WCD and the other 50 to Shulton. WCD sought to reduce the damages, and the consumer’s estate stipulated to reduce the judgments to $6,000,000 and $600,000, respectively. The court adjusted the awards pursuant to state law, further reducing their amounts to $2,667,045.45 and $266,704.55, respectively. WCD filed the present appeal, challenging the rationality of the jury verdict against the weight of the evidence, among other errors of law, and the estate cross-appealed on the issues pertaining to damages.

Toxic tort causation. As an initial matter, the appellate court clarified the case law on the matter of establishing causation in toxic tort cases. The court explained that precise information and exact details are not always available in toxic tort cases—and that they may not be necessary if there is "evidence from which a reasonable person could conclude" that the substance "has probably caused" the kind of harm at issue. Further, under New York’s Frye test, there must be a minimum of evidence from which the fact finder can conclude that the injured party was exposed to levels of the agent that are known to cause the kind of harm at issue and that the expert testifying as to causation must do so using methods generally accepted as reliable in the scientific community.

General causation. In the case at bar, the estate’s expert testified that the asbestos in talc is capable of causing peritoneal mesothelioma. The expert’s opinion was based on peer-reviewed articles citing epidemiological studies, case studies, and review of governmental and international agency positions on asbestos safety, in addition to her many years of clinical experience treating patients with mesothelioma. WCD did not present any evidence that the information upon which the estate’s expert based her opinion was not generally accepted in the relevant scientific community, and even WCD’s expert testified that the methods were generally accepted. The appellate court added that the estate’s expert’s testimony did not simply "associate" or "link" asbestos to mesothelioma; rather, she stated that virtually all mesothelioma cases are related to asbestos exposure. Further, WCD’s expert admitted that the studies he cited only concerned men, and did not consider peritoneal mesothelioma or cosmetic talc. Thus, it was up to the jury to weigh the evidence and determine which expert’s testimony was more credible. Accordingly, there was no legal basis to overturn the findings and verdict.

Specific causation. The appellate court was similarly unpersuaded by WCD’s argument that the estate failed to establish specific causation because its expert could not meet the quantification element. The court observed that the estate’s expert’s opinion was based on the consumer’s testimony of her timing, frequency, and duration of her use of the powder and in consideration of the testing of a historical sample, which revealed an extraordinary amount of asbestos fibers in a simulated setting. The lack of a precise quantity of asbestos was not fatal to the estate’s case, especially in light of precedent holding that precise quantification is not required in toxic tort cases. Therefore, there was nothing in the record to show that the evidence did not support a finding of specific causation. Accordingly, the supplier’s arguments on causation failed.

Fair trial. The appellate court also rejected WCD’s argument that it was deprived of a fair trial because of remarks made by the estate’s counse land because of an incorrect jury instruction given by the trial court. First, the appellate court concluded that the attorney’s comments made during summation were isolated and not of a nature to inflame or divert the jury from the core issues. The lower court’s judge stated that the remarks were not motivated by bad faith and, thus, did not warrant a mistrial.

Second, WCD’s argument that the "state of art charge" jury instruction was in error was unfounded, the appellate court determined. The instruction specified the level of knowledge a defendant is required to have, and correctly indicated that WCD, as a mineral and pigment distributor, should be up to date on developments in the state of the art of its products from research, reports, scientific literature, and other resources.

Damages. Finally, the appellate court considered both parties’ arguments concerning the damages award. First, WCD argued that the award should be reduced because it should not share the blame with the powder’s manufacturer, nor should the court have allowed the other settling defendants to be excluded from the verdict sheet. The appellate court explained that WCD knew or should have known that its talc was contaminated and, thus, its conduct was at least as great as the manufacturer’s with respect to causation. Further, the trial court’s exclusion of the other defendants was proper because WCD failed to meet its burden of proof of liability against those other parties.

Second, the estate challenged the calculation of payment offsets from the settling defendants. The appellate court agreed that the lower court used an incorrect method, as it should have applied the calculation for when all the settling defendants have been included in the apportionment of liability. The appellate court noted that WCD’s failure to establish liability against all the other parties save for Shulton merited this method because the other defendants’ liability was effectively apportioned to zero. Therefore, the damages award should be adjusted and increased to $3,300,000. The remaining determinations were affirmed.

The case is No. 190138/14 9765.

Attorneys: Renner K. Walker (Levy Konigsberg LLP) for Francis Nemeth. Bryce L. Friedman (Simpson Thacher & Bartlett LLP) for Brenntag North America, Inc., Whittaker, Clark & Daniels, Inc.

Companies: Brenntag North America, Inc., Whittaker, Clark & Daniels, Inc.

MainStory: TopStory HouseholdProductsNews AsbestosNews GCNNews CausationNews ExpertEvidenceNews DamagesNews NewYorkNews

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