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May 10, 2022

New York State's Highest Court Reaffirms Specific Causation Requirements in Toxic Tort Cases

In Nemeth v. Brenntag N. Am.,i  the New York State Court of Appeals set aside a jury verdict against the defendant and dismissed the plaintiff’s complaint, finding that the plaintiff failed to provide proof that the plaintiff’s disease was caused by exposure to asbestos from the defendant’s product. In doing so, the court reaffirmed the specific causation requirements in toxic tort cases.

In Nemeth, it was alleged that the decedent, Florence Nemeth, was exposed to asbestos from her use of asbestos-contaminated talcum powder, and that this use was a proximate cause of the decedent’s mesothelioma and, ultimately, her death. The case proceeded to trial against the sole remaining defendant, a supplier of Desert Flower, a cosmetic talcum powder, which was alleged to have been contaminated with asbestos. The plaintiff’s expert geologist offered testimony about a test—referred to as a “glove box test”—in which he agitated a vintage sample of the product within a small plexiglass chamber to simulate the decedent’s use of the product in an effort to determine the decedent’s actual exposure. Based on the data he gathered, the expert concluded that Nemeth had been exposed to “thousands to millions of fibers, billions and trillions when you add it up through repeated use.” The plaintiff’s expert internal medicine doctor then testified that the decedent’s exposure to Desert Flower was a substantial contributing factor to the development of her mesothelioma. The jury returned a verdict in the plaintiff’s favor, awarding $15 million in damages to the estate. 

The defendant moved for judgment notwithstanding the verdict, arguing that it was not supported by legally sufficient evidence as to causation. The Supreme Court denied the motion and, on appeal, the Appellate Division affirmed, in part. The issue faced by the Court of Appeals was whether the plaintiff had presented sufficient evidence in the record for the jury to conclude that the decedent was exposed to a quantity of asbestos that caused her to contract peritoneal mesothelioma. 

The Frye rule governs admissibility of expert testimony in New York State and requires the trial court to determine the general acceptance of a methodology used in the relevant scientific community. 

In 2006, the New York State Court of Appeals refined Frye for toxic tort cases, establishing that plaintiffs in these cases must demonstrate that: 1) a plaintiff was exposed to a toxin, 2) the toxin was capable of causing the particular injuries suffered (general causation), and 3) the plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation). In Nemeth, the Court of Appeals ultimately held that the glove box test proffered by the plaintiff’s expert was insufficient to establish the decedent’s exposure level because it did not estimate the quantity of asbestos fibers to which the decedent was exposed. That is, the plaintiff had failed to satisfy the requirements for specific causation. Although the plaintiff’s expert geologist was able to offer an opinion as to the amount of asbestos that was released using the glove box test, he could not offer an estimate of the amount that would be inhaled based on the test he conducted. As a result, the basis for the plaintiff’s internal medicine expert’s opinion, who otherwise offered conclusory opinions as to general and specific causation, was also insufficient.

This decision reiterates the requirements set forth by the Court of Appeals in Parker v. Mobil Oil Corp.ii that a plaintiff must satisfy both general and specific causation in toxic tort cases. From a practical standpoint, the decision is helpful to the defense bar as it further emphasizes the burden that a plaintiff must satisfy in toxic tort cases.

If you have any questions regarding the content of this alert, please contact Andrew Carroll, associate, at acarroll@barclaydamon.com; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; or another member of the firm’s Mass & Toxic Torts or Torts & Products Liability Defense Practice Areas. 

                                                          

i2022 N.Y. LEXIS 820 (2022).
ii7 N.Y. 3d 434 (2006).

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