Despite cosmetic talc litigation occurring in New York City Asbestos Litigation (NYCAL) for over a decade, no cosmetic talc defendant has succeeded on summary judgment on causation. Gordon Rees Scully Mansukhani’s New York Toxic Tort Team, led by Virginia Squitieri and Erik DiMarco, obtained the first summary judgment dismissal for a cosmetic talc defendant in NYCAL before the Honorable Eric Schumacher. The motion for summary judgment was briefed by David Oxamendi, Mohammad M. Haque, and Michael Hallam.
This case involved a living pleural mesothelioma claimant, who alleged exposure from traditional asbestos-containing equipment, such as pumps, valves, and insulation, as well as cosmetic talc. A number of different defendants were sued, including GRSM’s cosmetic talc client. The plaintiff alleged that she used the client’s product in her shoes and was present when her husband applied the same to his shoes.
GRSM argued that summary judgment was warranted under New York law, given that the plaintiff’s alleged exposure from the client’s products, even assuming arguendo that it was contaminated with asbestos, was insufficient to cause her disease. The firm enforced its argument by presenting the same epidemiological evidence that was before the First Department in Tippin v. 3M Co, Alcat, 233 AD3d 635 (2024), and went even further by including a mathematical modeling performed by its industrial hygienist to show that even accepting (1) that its talc was contaminated, and (2) that the plaintiff encountered it in the ways she alleged, her exposure would still not be causative.
GRSM’s evidence was deemed sufficient to establish its prima facie burden, and the Court’s decision was focused on the plaintiff’s inability to raise a triable issue of fact. The Court accepted the firm’s challenges to the plaintiff’s evidence in opposition to summary judgment that she failed under Nemeth to present any scientific support to demonstrate that it exceeded the minimum threshold of exposure to cause mesothelioma. Even accepting the plaintiff’s argument as to the minimum threshold of exposure that may be causative, the Court held that her experts failed to show that the plaintiff’s alleged exposure from the product at issue exceeded same. The Court further rejected the plaintiff’s experts’ opinions that such exposure was still “significant” or “non-trivial” because it was not premised on any scientific support. Accordingly, the Court granted the motion for summary judgment.
This decision is significant because summary judgment on causation has never been granted to a cosmetic talc defendant in NYCAL. In fact, this is only the second time in New York State that a trial court has granted summary judgment to a cosmetic talc defendant on causation—the first of which was also briefed and argued by GRSM. This decision reinforces the parameters of Nemeth v. Brenntag N. Am, 38 NY3d 336 (2022), that causation cannot be merely filtered through the opinions of well-credentialed experts and must be rooted in viable scientific evidence.