Levy Konigsberg Wins Landmark Appeal in Asbestos-Containing Talcum Powder Case

New York, New York, April 10, 2020—Yesterday, a panel for the First Department of New York’s Supreme Court, Appellate Division handed down a landmark ruling affirming a jury verdict in an asbestos-contaminated talcum powder case, and increasing the net verdict to $3.3 million. The decision, in Nemeth v. Brenntag North America, et al., was the first appellate decision in New York affirming a jury verdict in a case where the plaintiff’s mesothelioma was caused by asbestos-containing talcum powder.

Florence Nemeth and her husband Frank were devastated when they learned she had been diagnosed with mesothelioma, an incurably fatal form of cancer uniquely caused by asbestos. They sought damages for the excruciating pain and suffering Florence endured and for the spousal damages Frank suffered and will continue to suffer, suing the company which manufactured a cosmetic talcum powder product called “Desert Flower Dusting Powder,” and Whittaker Clark & Daniels, Inc. (“WCD”), which supplied the product’s talc from mines known to contain asbestos. The Nemeths also sued some other companies whose products contained asbestos.

Many defendants settled, but WCD didn’t, so Levy Konigsberg took the case to trial. Following a six-week trial against WCD, the jury found for the Nemeths and awarded them a total of $16.5 million. WCD appealed, asking for the appellate court to set aside the jury’s verdict and either award it judgment as a matter of law or else to give a second chance at trial. Primarily, WCD argued that there wasn’t enough evidence that its talcum powder contained asbestos or that its talcum powder caused Florence’s mesothelioma.

The First Department rejected each and every one of WCD’s arguments, and affirmed the trial court’s decision. First, the appellate court found that there was plenty of evidence that WCD’s talc contained asbestos: At trial, a respected geologist testified that both historical and contemporary studies had found asbestos in the mines WCD sourced its talc from, as well as ore samples taken from those mines. In fact the geologist personally visited one of WCD’s mines, in North Carolina, and immediately found an asbestos rock in the mine’s outcropping.

Second, as to causation, the appellate court explained that a plaintiff must show that a toxic material in a product is both generally capable of causing the disease the plaintiff suffers from, and that the plaintiff was “exposed to sufficient levels of the toxin to cause the illness.” WCD claimed a 2017 decision, called “Juni,” had fundamentally disrupted decades of law about causation in toxic tort cases. In other words, despite a 2006 case in which New York’s highest court that recognized that a “precise quantification [of the amount of toxin to which the plaintiff was exposed] is not necessary,” and despite a 2004 case that acknowledged that daily exposure to asbestos-containing “clouds of dust” is sufficient to show that asbestos caused a victim’s mesothelioma, WCD believed the Nemeths should have been required to show the mathematically exact amount of asbestos in its products anyway.

The appellate court disagreed. It recognized that Juni, the 2017 case, was highly unique, in that it not only involved a completely different type of product, but that the evidence presented in that case’s trial was vastly different from this case. Nor had Juni overruled the 2004 case. And importantly, as the appellate court recognized, to adopt WCD’s view of the law “would effectively sound the death knell for most, if not all, asbestos exposure cases,” forever shutting the courthouse door to virtually every victim of asbestos exposure.

Considering the evidence presented in light of the correct view of the law, the appellate court recognized that the Nemeths’ evidence was consistent with the proof the 2004 decision expected most plaintiffs would rely on: a reasonable “estimat[ion]” of the amount of exposure. The Nemeths’ geologist and testing expert performed the kind of analytical testing the EPA uses, and determined that a typical use of Desert Flower would have released 2.7 million individual asbestos fibers. Thus, the expert testified that over the more than a decade that Florence used Desert Flower on a daily basis, she was exposed to billions or trillions of asbestos fibers. Moreover, the Nemeths presented a distinguished medical expert who testified that based on sound research reflected in published medical literature, mesothelioma is a “sentinel health event,” in which the cancer is exclusively linked with its cause: exposure to asbestos.

The decision is a first-of-its-kind landmark in New York, making New York a national leader on the legal issues relating to asbestos in cosmetic talcum powder. The clarification of New York’s case law following Juni, the 2017 decision, is of monumental importance to workers and consumers who have been poisoned by asbestos in talcum powder.

The appellate court made a handful of other findings as well. The court concluded that, as a company that had distributed both asbestos and talcum powder for decades, WCD was properly held to the standard of an expert in the field; that Plaintiffs’ closing arguments were fair comment upon the evidence; that the lower court had correctly determined that WCD had failed to offer sufficient evidence of blame on the part of other asbestos manufacturers; and that the jury had therefore appropriately apportioned fault to WCD. Finally, although the lower court had reduced the jury’s verdict, the appellate court clarified how settlement setoffs should be calculated and raised the net verdict against WCD to $3.3 million.

Yesterday’s ruling was the latest in a series of cases in which Levy Konigsberg attorneys have fought hard and won on behalf of real people against corporations who put profit above the safety of workers and consumers, including: four consolidated cases in New Jersey totaling $37 million in compensatory damages and $750 million in punitive damages; a $325 million verdict in New York; a $29.5 million verdict in California; and a $117 million verdict in New Jersey.

The Nemeths were represented by Bob Komitor, a partner at Levy Konigsberg, and Renner Walker, a Levy Konigsberg attorney. We at Levy Konigsberg are proud to have been fighting for the maximum possible recovery for workers, consumers, and their families for more than thirty years. If you or a loved one has been diagnosed with cancer caused by asbestos or talcum powder, the experienced team at Levy Konigsberg can help. You can contact us by dialing 1-800-988-8005, emailing us, or taking advantage of the web form or “live chat” functions on this page.

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