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August 2022

Clarifying the Calculus on Causation: An Overview on New York’s Causation Standard as Recently Addressed by Court of Appeals and the Appellate Division: First Department


Recent appellate decisions in New York asbestos litigation during 2022 on the issue of causation hold high importance for both traditional asbestos product and talc product defendants. The following serves to provide a comprehensive overview of the key takeaways from the holdings in Nemeth, Olsen, Dyer, Grunet, and Pomponi.

On April 26, 2022, New York’s highest court rendered a decision in Francis Nemeth v. Brenntag North America, et al. and overturned a jury verdict award against a cosmetic talc supplier, finding that expert testimony was inadequate as a matter of law to have met their requisite burden of proof.  In Nemeth, the Court of Appeals reinforced the evidentiary standards on causation as set forth in its prior rulings in Parker, Cornell, Sean R., and Juni and clarified New York’s “specific causation” requirementGordon & Rees submitted an amicus brief in support of the defendant-appellant on the Court’s role as a gatekeeper to preclude junk science and ensure that only scientific evidence with a proper foundation is permitted.  

In its decision, the New York Court of Appeals expressly rejected the conclusory opinions and generalized reliance by plaintiff’s experts that asbestos causes mesothelioma to establish liability.  It set forth the specific parameters for plaintiff to present actual evidence of what base line exposure is necessary to cause disease and that the exposure experienced from each product reached, or exceeded, that level sufficient to cause the disease.  While the Court reiterated that precise quantifications are not always required, it does not dispense with the plaintiff’s burden to establish sufficient exposure to the toxin at issue.

Under the guidance of Nemeth, the First Department thereafter issued four decisions (Olsen, Dyer, Grunert, and Pomponi) in favor of NYCAL defendants.  Olsen overturned a $120 million award against Johnson & Johnson.  Dyer, Grunert and Pomponi extended Nemeth’s application to motions for summary judgment. Taken together with Nemeth, these four decisions reinvigorate the courts’ role as a gate keeper to exclude junk science and ensure that plaintiffs’ evidence meets the meticulously-crafted causation standards of this State.

Nemeth and its Progeny

  1.   Nemeth v. Brenntag N. Am., No. 24, 2022 WL 1217464, at *1 (N.Y. Apr. 26, 2022)

Plaintiff alleged that use of the cosmetic powder was a proximate cause of decedent's peritoneal mesothelioma.  Decedent used cosmetic talcum powder supplied by defendant, Whittaker, Clark & Daniels, Inc. daily for a period of more than ten years during the 1960s and early 1970s.  The jury returned a verdict in favor of the plaintiff. The First Department affirmed, with Justice Friedman authoring a robust dissent.  In agreement with Justice Friedman’s dissent, the Court of Appeals reversed on account that the plaintiff’s evidence on causation, particularly specific causation, failed as a matter of law.

The Court reiterated the causation evidentiary standard set forth by Parker and its progeny that although “precise quantification of exposure is not always required, ‘by no means . . . dispensed with a plaintiff’s burden to establish sufficient exposure to a substance to cause the claimed adverse health effect.’” Id. at 3. Plaintiffs must, using expert testimony based on “generally accepted methodologies,” still establish sufficient exposure to the toxin even though “it is sometimes difficult, if not impossible,” to do so. Id. The Court stated that it has repeatedly rejected as insufficient to prove causation expert testimony that exposure to a toxin is “excessive” or “far more” than others, and such testimony that merely links a toxin to a disease or “work[s] backwards from reported symptoms to divine an otherwise unknown concentration” of a toxin to prove causation. Id.

In a thorough analysis of the opinion of plaintiff’s occupational expert, Dr. Jacqueline Moline, the Court, the Court rejected Dr. Moline’s opinion that the decedent’s “exposure to the contaminated talcum powder was a substantial contributing factor” in causing her peritoneal mesothelioma as conclusory.  The Court found there was wholesale failure by Dr. Moline to demonstrate (1) what if any levels of exposure was necessary to cause the decedent’s peritoneal mesothelioma, and (2) that the exposures that the decedent experienced from her use of the cosmetic talc product at issue actually reached that level of exposure necessary to cause disease.   The Court was not persuaded by vague conclusions of studies cited by Dr. Moline that “low-level” exposures can cause peritoneal mesothelioma. 

The Court also rejected the opinions of plaintiff’s geologist, Mr. Sean Fitzgerald, and his glove box test as a quantification or scientific expression of decedent’s exposure. The Court found that all Mr. Fitzgerald did was shake a vintage sample of the product to determine the number of fibers released into a box, or as he put it, to “contain anything that’s released” and “determine . . . if that asbestos was releasable.” Id. He could not offer an estimate of the amount that would be inhaled based on the test he conducted. Nor did his identification of the number of released fibers and description of those fibers as of “an inhalable size” establish causation by demonstrating that decedent’s exposure was comparable to similar exposures proven to be causally related to the development of mesothelioma.

In its concluding remarks, the Court stated:

Although we have recognized that in any given case it may be “difficult, if not impossible, to quantify a plaintiff’s past exposure” to a toxin (Sean R., 26 NY3d at 812), our standard itself is not “impossible” for plaintiffs to meet (dissenting op at 25). We must, as always, strike a balance between the need to exclude “unreliable or speculative information” as to causation with our obligation to ensure that we have not set “an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court” (Parker, 7 NY3d at 447). The requirement that plaintiff establish, using expert testimony based on generally accepted methodologies, sufficient exposure to a toxin to cause the claimed illness strikes the appropriate balance (see Cornell, 22 NY3d at 784). The fault here is not in our standard, but in plaintiff’s proof. Id.

  1.   Matter of New York City Asbestos Litig.(Olsen), No. 14875, 2022 WL 2812015, at *1 (1st Dept. 2022)

In 2019 a NYCAL jury awarded $300 million in punitive damages and $25 million in compensatory damages to the plaintiffs.  Even after reduction of the jury award from the lower court, the total awarded amount remained at $120 million ($15 million in compensatory damages and $105 million in punitive damages). On July 19, 2022, the First Department Appellate Division issued a decision setting aside the verdict and entering judgment in favor of the defendant.

In reliance on Nemeth, the First Department held that plaintiffs failed, as a matter of law, to carry their burden to establish sufficient exposure to defendant’s talc product to cause plaintiff’s mesothelioma:

Even if it is assumed that plaintiffs presented sufficient evidence to support their mineral expert's estimate of the amount of asbestos to which plaintiff Donna Olson was exposed each time she used J & J's talcum powder products, plaintiffs’ medical expert never set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to cause mesothelioma, the disease in question. Id.

  1.   Dyer, Grunert, and Pomponi

Along with its July 19, 2022 decision in Olsen, the First Department issued three more decisions reversing the lower court and granting the summary judgment motions of a defendant floor-tile manufacturer.  All three cases involved claimants diagnosed with lung cancer, the same issues on specific causation and involved the same experts.  In each case, the First Department premised its ruling on Nemeth and the causation standards the Court of Appeals set forth therein.

  1. Dyer v. Amchem Prod. Inc., No. 13739, 2022 WL 2811995, at *1 (1st Dept. 2022)

The First Department held that defendant established its prima facie burden that plaintiff was not exposed to sufficient quantities of respirable asbestos to cause his particular lung cancer. Relying on a simulation study conducted by Environmental Profiles, Inc. in 2007 (2007 EPI study), defendant argued that the cutting, scoring and/or disruption of its floor tile did not produce sufficient airborne asbestos beyond ambient or background asbestos already present in the environment to cause lung cancer. Defendant’s experts calculated that the lifetime exposure to respirable asbestos from vinyl tile was not sufficient to cause his lung cancer.

The Court held that plaintiff failed to raise an issue of fact whether the quantities of respirable asbestos that were emitted by defendant’s product or that he ingested due to his exposure were sufficient to cause lung cancer:

Dr. Ginsburg generally concludes that “[t]here is no safe minimum level of exposure to asbestos with respect to lung cancer” and that “manipulation of asbestos containing floor tiles can result in release of asbestos fibers into the workers’ environment that are exponentially greater than the ambient level of exposure.” He also states that the asbestos process releases “visible dust” and that such dust is “certainly in dangerous concentration.” However, Nemeth holds that such broad pronouncements and conclusions will not satisfy a plaintiff’s causation burden, which is to show the levels of asbestos that the plaintiff was exposed to and that the levels are known to cause lung cancer. Likewise, to the extent Dr. Ginsberg’s conclusions are based upon the presence of visible dust emanating from an asbestos-containing product, this theory fails to satisfy a plaintiff’s burden on causation in asbestos cases. Id.

  1. Killian v. A.C. & S., Inc., (Grunert), No. 114345/02, 2022 WL 2812016, at *1 (1st. Dept. 2022)

The Court’s opinion was brief, referring to the Dyer decision in light of the common facts, evidence and argument.  One key takeaway from this decision is that plaintiff challenged the opinion proffered by defendant’s expert, who relied upon calculations arising from experiments funded by defendants, in determining that decedent was exposed, if at all, to asbestos in amounts similar to those in ambient air.  The Court rejected the plaintiff’s argument and held experiments funded by experts does not invalidate same and found “Plaintiff offered no expert to counter ABI’s calculation of decedent’s cumulative lifetime exposure, and thus no question of fact was raised as to its validity.” 

  1. Pomponi v. A.O. Smith Water Prod. Co., No. 14982, 2022 WL 2811997, at *1 (1st Dept. 2022)

In a brief opinion mirroring Dyer, the Court rejected the plaintiff’s argument that the decedent “work[ed] in dust laden with asbestos generated from products containing asbestos” accompanied by “expert testimony that dust raised from manipulating asbestos products ‘necessarily’ contains enough asbestos to cause mesothelioma.” Id. While plaintiff’s medical expert pointed to simulation studies measuring an average level of airborne asbestos as high as 0.27 f/cc from floor tile work, the Court held that he did not provide any correlation between the asbestos fiber levels to which plaintiff may have been exposed and the amount of inhaled asbestos that would have caused decedent’s lung cancer.

Please contact the Gordon & Rees New York Environmental / Toxic Tort practice group leaders, Erik DiMarco or Ginger Squitieri for any questions or further information.  Gordon & Rees would like to acknowledge Philadelphia partners Jack Cohn, Ilan Rosenberg and New York associate Mohammad Haque for their work on the amicus brief in the Nemeth case detailed above, and for Mohammad’s efforts in preparing this publication. 

Environmental/Toxic Tort

Jacob C. Cohn
Erik DiMarco
Mohammad M. Haque
Virginia Squitieri

Environmental/Toxic Tort