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We write on a chilly day in Philadelphia – we and the Drug and Device Law Little Rescue Dogs all shivered on our morning walk.  And we are excited to share the news that our scruffy shelter rescues will be joined, a la Lady and the Tramp, by some relative aristocracy later this year:  our dear friend and the breeder of our two treasured and long-departed Standard Poodles has offered to place a retired show dog with us when he finishes his championship.  For the initiated, he won both “majors” last week.  So he could be Philadelphia-bound before too long.  We will keep you posted.

Today’s case also contains good news, particularly for defendants in toxic tort cases.  In Nemeth v. Brenntag North America, et al., 2022 WL 1217464 (Ct. App. NY Apr. 26, 2022), New York’s highest court reversed an asbestos jury’s verdict for the plaintiff, holding that the plaintiff’s experts had not adduced sufficient proof that the defendant’s product caused the plaintiff’s decedent’s fatal mesothelioma.

The decedent was diagnosed with peritoneal mesothelioma in 2012 and died in 2016.  The complaint alleged that the 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,” and that she used the defendant’s asbestos-containing talcum powder daily from  1960 until 1971. The plaintiff settled with all of the defendants except the manufacturer of the talcum powder and tried the case against only that single defendant.

The plaintiff called a geology expert, who testified about a test he performed to simulate the plaintiff’s use of the defendant’s talcum powder “and to capture the released asbestos fibers.”  Nemeth, 2022 WL 1217464 at *1.   The test involved agitating a vintage sample of the talcum power in a sealed Plexiglas “glove box” chamber containing filters designed to simulate “breathing zones.”  The expert concluded that the asbestos fibers in the powder sample were “significantly releasable” and that, multiplying the numbers of fibers released during the test by “time, duration, and frequency” of the plaintiff’s exposure, the plaintiff “must have been exposed to thousands to millions of fibers, billions and trillions when you add it up through repeated use.”  Id. (internal punctuation omitted).  In turn, the plaintiff’s medical causation expert, an internal medicine specialist, testified that a diagnosis of mesothelioma indicated that the decedent had been exposed to asbestos, and that, based on the geologist’s test results, the talcum powder was a “substantial contributing factor” to the decedent’s peritoneal mesothelioma.

The jury returned a substantial verdict in favor of the plaintiff.  The defendant moved for JNOV, arguing that the verdict “was not supported by legally sufficient evidence as to causation.”  Id. at *2.  The trial court denied the motion.  On appeal, the intermediate appellate court affirmed, holding that “[the geologist’s] testimony about the amount of asbestos released . . . , along with the timing, duration and frequency of the 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. (internal punctuation and citation omitted).  One judge dissented, concluding that the geologist’s study was not sufficient to establish the decedent’s exposure because “it did not estimate the quantity of asbestos fibers to which the decedent would have been exposed” and because the doctor’s causation testimony “failed to provide more than vague, conclusory, and subjective terms, characterizing both the level of asbestos exposure sufficient to cause peritoneal mesothelioma and the level of asbestos exposure to which [the] decedent allegedly was subjected.”  Id. (internal punctuation omitted).   The intermediate appellate court granted the defendant leave to appeal, and today’s case is the decision on that appeal.

The Court of Appeals held:

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, it 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).

Id. at *3, (internal punctuation omitted, citing Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584, 857 N.E.2d 1114 (2006).

The Court continued, “We noted [in Parker] that there might be several ways that an expert might demonstrate causation . . . . but that any method used must be generally accepted as reliable in the scientific community.”  Id. (internal punctuation and citation omitted).  The Court emphasized that, in its toxic tort jurisprudence, it had “repeatedly rejected as insufficient to prove causation expert testimony that exposure to a toxin was ‘excessive’ or ‘far more’ than others, and such testimony that merely links a toxin to a disease or works backwards from reported symptoms to divine an otherwise unknown concentration of a toxin to prove causation.”  Id. (internal punctuation and citations omitted).  In other words, “the fact that asbestos has been linked to mesothelioma is not enough for a determination of liability against a particular defendant; a causation expert must still establish that the plaintiff was exposed to sufficient levels of toxin from the defendant’s products to cause his disease.”   In this case, the majority held, the plaintiff’s causation expert had not established this.  She was vague about the level or duration of asbestos exposure necessary to cause mesothelioma, and she testified that mesothelioma could develop idiopathically – without a known cause.  Moreover, the Court stated, the doctor’s description of mesothelioma as a “sentinel health event” of asbestos exposure was “no different than the conclusory assertions of causation [it had] held . . . insufficient to meet the Parker requirements.”  Id. at *4 (citations omitted).  Nor, the Court emphasized, did the studies or scientific literature support the causation conclusion.  The studies discussed “low level” exposure and “significant” exposure without quantifying what those terms meant; in fact, “not one of the articles [the expert] discussed on the witness stand set[]forth an estimate of the minimum level of exposure to respirable asbestos that would suffice to cause peritoneal mesothelioma.”  Id. (citations omitted).

The Court continued, “Under these circumstances, plaintiff’s proof failed to demonstrate decedent’s level of exposure to asbestos in a manner that established causation.”  The geologist’s “glove box test” was not a “quantification, or at least a scientific expression of decedent’s exposure;” to the contrary, “[w]hile a precise numerical value is not required, [the geologist’s] test simply failed to provide any scientific expression linking decedent’s actual exposure to a level known to cause mesothelioma.”  The Court concluded, “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” between “the need to exclude unreliable or speculative” causation opinions and the obligation “to ensure that we have not set an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court.”  Id. at *5.  Here, the balance tipped in the defendant’s favor, and the Court reversed the Appellate Division’s decision and dismissed the complaint.

There is an interesting wrinkle in Nemeth:  a long lone dissent (longer than the majority opinion) containing some blatant manipulation involving the decedent’s childhood, relationship with the plaintiff, children/grandchildren, and illness, disguised as “facts” in the relevant chronology.   The dissenting Justice included lengthy exposition of the testimony of both of the plaintiff’s experts, then asserted that the plaintiff had satisfied his burden to prove both general and specific causation.  As to general causation, according to the dissent, the experts testified that epidemiological and case studies supported a finding that exposure to asbestos – sometimes even low levels of exposure – could cause mesothelioma and that the defendant’s product contained asbestos.  The dissenting Justice asserted that “[d]efendant’s cross-examination of both experts failed to undermine their testimony” on general causation, and that the plaintiff also “satisfied his burden as to specific causation.”  Id. at *13.  She stated that the geologist had employed a reliable methodology in his testing and quantified as “millions of fibers” of inhalable size the asbestos released into the Plexiglas chamber.  Then, she continued, the doctor “provided a scientific expression of [the decedent’s] exposure level to asbestos” based on relevant literature, the geologist’s test results, and the evidence of the decedent’s daily routine.  She concluded, “To the extent the majority suggests there was a lack of any evidence of general causation, such a suggestion is unsupportable as there was an abundance of evidence that asbestos-containing talc could cause mesothelioma because the asbestos was releasable during use.  [The plaintiff’s expert physician] also testified that the literature included studies of persons exposed to asbestos who developed peritoneal mesothelioma, a rare cancer.  This was enough under our law.”  Id. at *14 (citations omitted).

The dissenting Justice found similar flaws in the majority opinion about specific causation.  She concluded:

The fault here was not in plaintiff’s proof. . . . Plaintiff met his burden of proof under our law, which the lower courts properly articulated, and the jury found his experts persuasive and rejected defendant’s experts’ views. The fact that the majority would have come to a different conclusion is irrelevant. Concerns about whether the plaintiffs’ experts’ opinions were based on studies and criteria that defendant’s expert disagreed with goes to the weight of the evidence, and not the legal sufficiency of the proof establishing causation. And, this Court has no authority to weigh the evidence.

Id. at *15 (internal punctuation and citations omitted).   So Nemeth features thoughtful, powerfully-expressed opinions on both sides.  But we represent defendants.  And we face, year in and year out, judges who do not demand that plaintiffs prove – really prove – that our clients’ products caused their injuries.  So we are happy with the defense win in this case, and we hope it operates an example to toxic tort judges and a cautionary tale to toxic tort plaintiffs.  We are heading for a firm meeting in Florida – we will reserve the political commentary – and we look forward to talking to you when we get back.  In the meantime, stay safe out there.