Supreme Court, Erie County, April 28, 2023

Christopher S. Kozak for defendants.

Leah C. Kagan for plaintiff.

This matter comes before the court on a motion for summary judgment on behalf of the defendant, Whittaker, Clark & Daniels, Inc., seeking dismissal of plaintiff's (Christopher R. Campise, as executor of the estate of Jeffrey Campise) complaint pursuant to CPLR 3212.

The plaintiff claims that the decedent, Jeffrey Campise (Jeff), was exposed to asbestos through the use of consumer talcum powder products for nearly his entire life. From the time he was born until around 10 years old he would be around his mother when she applied talc products including Chanel No. 5 Body Powder, Jean Nate talcum powder, and Avon Imari and Skin So Soft talcum powders. His mother also used Caldesene powder during Jeff's diaper changes when he was an infant. Around the age of 13 Jeff began using Gold Bond Medicated Powder in a routine manner both at home and in the locker room.

Plaintiff brought this lawsuit against defendant, Whittaker, Clark & Daniels, Inc., as the supplier of asbestos-containing talc for the manufacturers of Gold Bond Medicated Powder, Chanel No. 5 Body Powder, Jean Nate talcum powder, Avon Imari and Skin So Soft talcum powders, and Caldesene medicated powder. Plaintiff argues that due to a lifetime of exposure to these asbestos containing products, Jeff contracted mesothelioma and died on January 30, 2022, at the age of 42.

Defendant argues that while it sold talc to the companies who produced these consumer talc products it is only speculation as to whether its talc was in the specific products used by Jeff; that cosmetic talc does not cause mesothelioma; and that{**79 Misc 3d at 914} the levels of talc inhaled by Jeff were not enough to cause mesothelioma. Based on these facts, the defendant argues there is no causal link between talc and Jeff's mesothelioma.

The court recognizes that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue of fact (see Kelsey v Degan, 266 AD2d 843 [4th Dept 1999]; McGraw v Ranieri, 202 AD2d 725 [3d Dept 1994]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). On a motion for summary judgment, the court is not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). To defeat a motion for summary judgment, the opponent must produce evidentiary proof in admissible form sufficient to require a trial of material issues of fact, and importantly mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Zuckerman v City of New York, 49 NY2d 557 [1980]).

[1] First, defendant contends that it is unclear which supplier(s)' talc was used in the final batch formulations of the products that Jeff was exposed to. It will require, therefore, a jury to speculate as to the final batch formulations in order to hold the defendant accountable. This argument is without merit. Records show that defendant was a supplier of talc for the products in question during the time that Jeff was exposed. "[B]oth the existence of a product defect as well as the identity of the manufacturer of the product are issues of fact capable of proof by circumstantial evidence" (Otis v Bausch & Lomb, 143 AD2d 649, 650 [2d Dept 1988]). The defendant failed to meet its burden of establishing as a matter of law that it did not sell the talc in question to the manufacturers of the consumer products (see Horn v Homier Distrib., 272 AD2d 909, 910 [4th Dept 2000]).

Next, the defendant argues that the talc it distributed did not contain asbestos. In support of this argument, they submit the affidavit of Alan M. Segrave, P.G. (professional geologist). Mr. Segrave states that the sources of the defendant's talc were known to be "asbestos-free" (NY St Cts Elec Filing [NYSCEF] Doc No. 171, defense exhibit N). In addition, Mr. Segrave stated that the talc from these sources were tested prior to distribution{**79 Misc 3d at 915} and that these tests show that during the relevant times [*3]the talc in question did not contain detectable asbestos fibers (id.). In opposition, the plaintiff submits contradicting evidence in various forms that the sources of the defendant's talc did contain asbestos (NYSCEF Doc Nos. 363-439, plaintiff exhibits 40-116). Plaintiff also submits the affidavit of Dr. Jacqueline Moline (Dr. Moline), who summarizes the history of the presence of asbestos in talc, in addition to being the plaintiff's causation expert (NYSCEF Doc No. 442, plaintiff exhibit 119).

While the defendant's affidavit from Alan M. Segrave provides a prima facie showing that its talc did not contain asbestos, the plaintiff provides extensive evidentiary proof that establishes a triable issue of fact as it pertains to the question of the presence of asbestos in defendant's talc.

Having determined that a triable issue of fact exists as to whether the defendant's talc contained asbestos the court turns to the question of causation. The New York Court of Appeals, in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]), established a three-part test for establishing causation in toxic tort cases: (1) that the plaintiff was exposed to a toxin, (2) that the toxin is capable of causing the particular illness (general causation), and (3) that the plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).

More recently the Court of Appeals in Nemeth v Brenntag N. Am. (38 NY3d 336 [2022]) reaffirmed the Parker test. The Court stated that an expert opinion must "meet our requirements for establishing exposure to a toxin in an amount sufficient to cause decedent's peritoneal mesothelioma" (id. at 344). Conclusory assertions are insufficient to meet the Parker test and while a precise numerical value is not required there must be some "scientific expression linking decedent's actual exposure to asbestos to a level known to cause mesothelioma" (id. at 345-346).

In the instant case, the defendant, citing Cornell v 360 W. 51st St. Realty, LLC (22 NY3d 762, 783 [2014]), argues that the general causation evidence needs to be product specific, and that evidence of a mere "association" is not enough. The defendant argues that the epidemiology related to talc use shows that it does not cause or increase the risk of developing mesothelioma (NYSCEF Doc No. 172, defense exhibit O, rep of Kenneth A. Mundt, Ph.D.). In addition, studies of talc miners and millers show no cases of mesothelioma (NYSCEF Doc Nos.{**79 Misc 3d at 916} 174-178, defense exhibits Q, R, S, T, U) thereby establishing prima facie evidence supporting the defendant's general causation claim.

Defendant goes on to argue that the instant case is similar to Parker in that there is no dispute that benzene caused AML, but the question was whether benzene contained within gasoline was capable of causing AML (Parker, 7 NY3d at 449-450). Here, the defendant argues that even if you accept that there was asbestos in the talc mined by the defendant, there is no scientific evidence, that rises to the Parker standards, that finds an increased risk of mesothelioma as a result of exposure to talc. The plaintiff would, therefore, fail to meet the general causation prong of the Parker test and the defendant would be entitled to summary [*4]judgment as a matter of law.

In order to survive the motion for summary judgment and create a triable issue of fact, the plaintiff must present expert evidence that is sufficient to meet the general causation standard established in Parker. Specifically, plaintiff must show a significant association between talc exposure and mesothelioma.

The plaintiff submits such evidence through the affidavit of Dr. Moline and an article by Ronald E. Gordon, Sean Fitzgerald, and James Millette, Asbestos in Commercial Cosmetic Talcum Powder as a Cause of Mesothelioma in Women (20 Int'l J of Occupational & Env't Health, vol 20, No. 4 at 318, 330 [2014]), which concluded that "findings indicate that historic talcum powder exposure is a causative factor in the development of mesothelioma." (NYSCEF Doc No. 441, plaintiff exhibit 118.) Dr. Moline's affidavit, in addition to referencing the Gordon et al. article, also references several other published studies and reports that reference the link between exposure to asbestos through talc and mesothelioma (NYSCEF Doc No. 442, plaintiff exhibit 119 ¶ 59). Such evidence is enough to create factual issues regarding general causation.

Finally, defendant argues that Jeff and his mother's use of talc products was not sufficient to cause mesothelioma (specific causation). In support of this argument defendant submits the report of Jennifer S. Pierce, M.S., Ph.D. (NYSCEF Doc No. 234, defense exhibit V). Dr. Pierce references several reports and studies (NYSCEF Doc Nos. 180-185, defense exhibits W-BB) that present affirmative evidence that there are cumulative asbestos thresholds below which there is no risk of developing mesothelioma (see NYSCEF Doc No. 234, defense exhibit V{**79 Misc 3d at 917} at 103-106). Dr. Pierce argues that the plaintiff's exposure "would have been (1) well below the cumulative asbestos exposure that is permitted by the federal government (in the occupational setting), (2) below that associated with breathing ambient air, and (3) far too low to increase his risk of asbestos-related disease" (NYSCEF Doc No. 234, defense exhibit V at 106).

As the Court of Appeals stated in Nemeth (38 NY3d at 347), the plaintiff must "establish, using expert testimony based on generally accepted methodologies, sufficient exposure to a toxin to cause the claimed illness" (citing Cornell, 22 NY3d at 784). In addition, the plaintiff must establish this through more than general, subjective and conclusory assertions (Parker, 7 NY3d at 449).

The plaintiff submits the affidavit of Dr. Moline who opined to a reasonable degree of medical certainty that the exposure to the dust from asbestos-containing cosmetic talc products the plaintiff was exposed to were above levels that have been shown to cause mesothelioma (NYSCEF Doc No. 442, plaintiff exhibit 119 ¶ 74). First, Dr. Moline discusses the "consensus among the overwhelming majority of medical and scientific professionals and organizations that asbestos fibers of any type or size can cause mesothelioma, including chrysotile fibers" (id. ¶ 42). Dr. Moline provides a detailed table of various ranges of asbestos exposure that are sufficient to cause mesothelioma (id. ¶ 29). She also cites the Rodelsperger study that indicates exposures of 0.1 fibers per cubic centimeter (f/cc) can cause disease (id.[*5]¶ 44) as well as the Lacourt study which determined a doubling of the risk of mesothelioma at exposures greater than zero but less than 0.1 f/cc (id. ¶ 49). In addition, Dr. Moline cites to a recent study that found a dose-response relationship with a 28 times increased risk of mesothelioma at the lowest exposure threshold of 0-0.5 fibers per milliliter and years (f/mL-yrs) (id. ¶ 51).

Dr. Moline then reviewed asbestos exposure level data from talc products collected by material scientists and industrial hygienists and data published in peer reviewed literature (id. ¶ 60). That data is then compared to background exposure as illustrated in peer reviewed public literature (id.). Such literature consistently shows levels of exposure magnitudes higher (1.11 f/cc to 4.25 f/cc) than background exposures (.00005 f/cc), as illustrated by specific data points (id. ¶ 61).

Using these exposure studies Dr. Moline was able to determine within a reasonable degree of medical certainty that the{**79 Misc 3d at 918}plaintiff's exposure to asbestos from talc powder products were several orders of magnitude over background levels and above levels demonstrated to increase the risk of mesothelioma (id. ¶ 62). Specifically, Dr. Moline, using the data from the published literature and the testimony of the plaintiff and his mother, was able to produce a conservative estimate of the plaintiffs exposure levels to each product (id. ¶¶ 64-72). Gold Bond levels were estimated between 0.02 and 0.26 f/cc-yrs, Caldesene at 0.02 f/cc-yrs, Jean Nate and Chanel Talcum Powders at 0.03 f/cc-yrs, for a combined conservative estimate of asbestos exposure from Whittaker, Clark & Daniels, Inc. talc of 0.07 f/cc-yrs (id. ¶¶ 63-73). Dr. Moline calculated that this increased the plaintiff's risk of developing mesothelioma by a range of 2.8 times to 7.9 times (id. ¶ 29).

The Nemeth Court specifically and repeatedly states that "precise quantification of exposure is not always required" if the plaintiff's expert establishes causation using methods that are generally accepted as reliable in the scientific community (38 NY3d at 343). Dr. Moline has in fact exceeded this requirement by providing estimates of quantified exposure levels and comparing those estimates to levels demonstrated to cause mesothelioma. She does this using peer reviewed data produced by material scientists and industrial hygienists and comparing that data to the exposures claimed by the plaintiff and his mother, then reducing that to a mathematical calculation. Such calculations meet the standard set forth in Parker and Nemeth and her opinion constitutes sufficient evidence of causation to overcome summary judgment.

Finally, the defendant argues the plaintiff is not entitled to punitive damages. "Punitive damages are not to compensate the injured party but rather to punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future" (Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489 [2007]). To warrant an award of punitive damages, there must be proof of recklessness, or a conscious disregard of the rights of others (1B NY PJI3d 2:278 at 970 [2023]).

[2] Defendant argues that it had third-party laboratories test its talc for the presence of asbestos as soon as it was aware that it was a potential concern (see [*6]NYSCEF Doc No. 171, defense exhibit N, aff of Alan Segrave, P.G.). Defendant also references a letter from the FDA denying a petition requesting that talc products be labeled with an asbestos warning and{**79 Misc 3d at 919} stating that such products do not cause a health hazard (NYSCEF Doc No. 182, defense exhibit Y). Defendant, thereby, meets its initial burden on the motion by establishing the absence of any conduct that could be viewed as a wanton and reckless act that demonstrates conscious indifference and utter disregard of its effect upon the health safety and rights of others (see PJI 2:278).

Plaintiff provides extensive discovery materials arguing that defendant knew the talc it distributed for use in consumer products contained asbestos and that asbestos is hazardous (see plaintiff's statement of facts ¶¶ 20-37, 42-43, 63-76, 77-82). Viewing this evidence in the light most favorable to the plaintiff, it fails to meet the heavy burden necessary to find that the acts of the defendant were wanton, reckless, and malicious.

The evidence shows that there was a debate in the scientific community regarding the safety of consumer talc products and that government agencies like the FDA merely had concerns over a potential safety hazard. While the industry failed to use the most cutting-edge technology available to detect asbestos in its talc, this is not enough to rise to a deliberate concealment of dangerous levels of asbestos. Plaintiff, therefore, has failed to raise an issue of fact regarding punitive damages.

Wherefore, upon the foregoing, it is hereby ordered that defendant's motion for summary judgment is denied in its entirety except as to the issue of punitive damages; it is further ordered that defendant's motion for summary judgment dismissing the plaintiff's claims for punitive damages is granted.