February 22, 2012 – In a landmark decision issued today, the New York Supreme Court held that a federal statute does not block a plaintiff’s right to sue for her asbestos-related injury under New York law. The decision marks the first time that this issue has been decided in a state court, and is a monumental victory for similarly-situated plaintiffs who wish to bring an asbestos lawsuit in New York state courts.

NEW YORK, New York, February 22, 2012 – In a landmark decision issued today, the New York Supreme Court held that a federal statute does not block a plaintiff’s right to sue for her asbestos-related injury under New York law. The decision marks the first time that this issue has been decided in a state court, and is a monumental victory for similarly-situated plaintiffs who wish to bring an asbestos lawsuit in New York state courts.

The New York Supreme Court decided that the Federal Food, Drug, and Cosmetics Act (“the FDCA”) cannot be interpreted to stop victims of asbestos-related disease from suing a cosmetic manufacturer for failing to warn its customers of the dangers of asbestos associated with its product.

The plaintiff in the case, represented by Levy Konigsberg LLP (“LK”), was a long-time user of Cashmere Bouquet, a cosmetic talcum powder product manufactured by the defendant, Colgate-Palmolive Co. The plaintiff began using Cashmere Bouquet in the 1950s and continued using it over the next three decades. As a result, she developed peritoneal mesothelioma, and passed away in August 2010.

In court, Colgate argued that the FDCA preempts – or stops – plaintiffs from bringing a lawsuit against it under any state law. New York law allows a plaintiff to sue for a negligent company’s failure to warn its customers of dangers associated with its products. The FDCA, Colgate contended, contains a provision that would not allow plaintiffs to bring such a claim.

LK partner Audrey Perlman Raphael, Esq. argued to the Court that the plaintiff began using the product long before the FDCA was ever passed into law. The LK attorneys also pointed out that the federal law contains another specific provision that allows plaintiffs to sue for a company’s failure to warn under state common law.

The Court acknowledged that Colgate never provided warnings to its Cashmere Bouquet customers regarding the health hazards of asbestos for the decades that the plaintiff used the product. The Court also decided that the FDCA could not be applied retroactively to eliminate this plaintiff’s claims for the injuries she received during the time period she used Cashmere Bouquet.

The Court also looked at the language of the FDCA to find that it does not either expressly or impliedly prohibit the plaintiff from suing under New York law.

Finally, the Court decided that the FDA has never issued a formal statement on the safety of cosmetic talcum powder.

The Court’s decision permits the family of this LK client to continue with their asbestos lawsuit and allows them to see their day in court.

For over a quarter of a century, mesothelioma lawyers at Levy Konigsberg LLP have been among the pioneers of asbestos litigation in America. The firm’s attorneys have been recognized as nationwide leaders in representing the rights of mesothelioma victims and their families. Their clients have received some of the largest mesothelioma compensation verdicts in the country.

For more information about this or other mesothelioma lawsuits, please contact Levy Konigsberg LLP at (800) 315-3806 or 1-800-MESO-LAW (1-800-637-6529), 24 hours a day, 7 days a week.

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