The following documents were considered in Defendant Vi-Jon, LLC's ("Vi-Jon") motion for summary judgment pursuant to CPLR 3212 dismissing all claims against it. NYCEF Doc Nos 343 — 367, Doc Nos 376 — 401, Doc Nos 428 — 446, Doc Nos 746 — 766.

This wrongful death action arises from the alleged exposure of decedent Todd Hathaway to asbestos-containing cosmetic talcum powder products, including Target's Up & Up baby powder manufactured by Vi-Jon between approximately 2007 and 2016. Plaintiff contends that exposure to asbestos in these products caused Mr. Hathaway to develop malignant peritoneal mesothelioma, leading to his death.

In support of her claims, Plaintiff has offered deposition testimony from herself and Mr. Hathaway, which describes his regular use of the product, deposition testimony of Aleathea Murray, designated representative of Vi-Jon LLC, deposition testimony of James Reimer, designated representative of Target Corporation, and expert affidavits from Dr. William Longo (testing expert), Dr. David Madigan (statistical expert), Dr. Steven Compton (testing expert), Dr. Paul Rosenfeld (environmental science/risk assessment), Dr. Jacqueline Moline (causation expert), and Dr. Theresa Emory (pathology). Dr. Longo's report (NYSCEF Doc Nos 386 and 387) found detectable levels of asbestos in Vi-Jon powder samples. Drs. Moline and Rosenfeld opined that Hathaway's exposure from Vi-Jon's product constituted a substantial contributing [*2]factor to the development of his mesothelioma (NYSCEF Doc Nos 389 and 385).

Vi-Jon denies its talcum powder contained asbestos and asserts that it reasonably relied on its supplier, Barretts Minerals, Inc. ("Barretts"), which certified the talc was asbestos-free. Vi-Jon contends that it had no reason to suspect the talc was contaminated and thus had no duty to perform independent testing.

The Court notes that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion (see id. at 853). Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 [1st Dep't 1992], citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 [1st Dep't 1990]). The court's role is "issue-finding, rather than issue-determination" (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957][internal quotations omitted]).

As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence (see Ugarriza v Schmieder, 46 NY2d 471, 475-476 [1979]). Furthermore, the Appellate Division, Fourth Department has held that on a motion for summary judgment, it is moving defendant's burden "to establish that its product could not have contributed to the causation of plaintiff's injury and death" (Takacs v Asbestospray Corporation, 255 AD2d 1002 [4th Dept 1998] citing Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 [1st Dept 1995]).

As the moving party, Vi-Jon bore the initial burden of demonstrating, with admissible evidence that its product could not have contributed to the Plaintiff's injury and death. Vi-Jon argued that its products did not contain asbestos, relying solely on supplier certifications from Barretts and that its reliance on Barretts' asbestos-free certification absolves it of liability since it did not and could not have known whether or not its talc contained asbestos (see NYSCEF Doc No 357 Deposition of Vi-Jon corporate representative Aleathea Murray).

Vi-Jon's reliance on supplier certifications, without conducting any independent verification, does not constitute a complete defense as a matter of law. New York courts have long held that a manufacturer may not delegate its duty to ensure product safety when there is reason to suspect contamination (see Godoy v Abamaster of Miami, Inc., 302 AD2d 57 [2d Dept 2003]). As the Court of Appeals states in Voss v. Black & Decker Mfg. Co., (59 NY2d 102, 107, [1983]), "[a] manufacturer is held liable regardless of his lack of actual knowledge of the condition of the product because he is in the superior position to discover any design defects and alter the design before making the product available to the public. Liability attaches when the product, as designed, presents an unreasonable risk of harm to the user." The Second Circuit, in George v. Celotex Corp., (914 F.2d 26, 28 [2d Cir. 1990]) goes even further stating explicitly that "a manufacturer has a duty to test fully and inspect its products to uncover all dangers that are scientifically discoverable."

Vi-Jon contends that it can satisfy its burden by establishing that its reliance on Barretts' certifications was reasonable. Even if this accurately reflects the current caselaw, an inquiry into the reasonableness of Vi-Jon's actions is fact-sensitive in the face of longstanding industry awareness of asbestos contamination in talc. Awareness that Vi-Jon's own corporate representative readily admitted to (NYSCEF Doc No 395 Murray Deposition pp 116-117)

Because Vi-Jon failed to affirmatively eliminate all triable issues of fact regarding the presence of asbestos in its products or even the reasonableness of its conduct, it did not satisfy its threshold burden under CPLR 3212. As a result, the Court need not even consider the sufficiency of plaintiff's opposition to deny the motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Even assuming arguendo that Vi-Jon met its initial burden, Plaintiff has submitted ample evidence to raise triable issues of fact. Dr. Longo's microscopy analyses detected amphibole asbestos fibers in Vi-Jon's products (NYSCEF Doc Nos 386-387). Dr. Rosenfeld's dose reconstruction (NYSCEF Doc No 385) provides quantitative estimates consistent with known risk thresholds for peritoneal mesothelioma, as required under Nemeth v Brenntag N. Am., (38 NY3d 336 [2022]). Dr. Moline further contextualizes these findings in relation to cumulative exposure from routine product use (NYSCEF Doc No 389). Dr. Emory's pathology report confirmed the diagnosis and excluded other causes (NYSCEF Doc No 384).

These expert opinions satisfy the Parker/Nemeth standard by linking plaintiff's exposure to a dose sufficient to cause the disease (see Parker v Mobil Oil Corp., 7 NY3d 434 [2006]; Nemeth, 38 NY3d 336). In addition, Vi-Jon offered no independent testing or expert testimony that the relevant product batches did not contain asbestos. Vi-Jon provided no expert rebuttal to Dr. Longo's findings of asbestos in actual samples of Vi-Jon's baby powder (see NYSCEF Doc Nos 386-387). Regardless, competing views on methodology or weight are for the jury to resolve.

Vi-Jon also seeks dismissal of Plaintiff's claim for 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 Services, Inc., 8 NY3d 478, 489, [2007][emphasis added]). 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 1008 [2025]).

In Campise v Arkema Inc., (79 Misc 3d 912, 918-919 [Sup Ct, Erie County 2023]), this Court dismissed such a claim where a supplier had third party laboratories test its talc for the presence of asbestos and there was no evidence of willful misconduct. In contrast, this Court has allowed claims for punitive damages to survive where Plaintiffs have presented documents and testimony that raise questions of fact as to whether defendant was not only aware of contamination in its talc, but also questions as to whether defendant actively attempted to hide that evidence (Talbot v AO Smith Water Products Co., et al, NYSCEF 815588/2021, Motion Seq No 9, Doc No 423).

This case is distinguishable from Campise because Defendant in Campise met 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; see also Vasquez v. 3M Co., 177 AD3d 428 [1st Dept 2019]). Unlike the defendant in Campise, Vi-Jon was not merely a supplier, it was the manufacturer and distributer of a consumer product intended for daily use, placing it in a [*3]direct position of responsibility to ensure product safety. Vi-Jon failed to meet its prima facie burden to eliminate triable issues of fact as to whether it acted with gross negligence or reckless disregard. Having submitted no evidence of any independent steps to ensure product safety despite being aware of general industry risks, Vi-Jon has not conclusively negated the possibility of morally culpable conduct. As in Vazquez, the Defendant cannot meet its prima facie burden by pointing to perceived gaps in plaintiff's proof (177 AD3d at 429).

In addition, Plaintiff provides some evidence that despite several issues with its talc supplier and other red flags raised in relation to asbestos content in talc Vi-Jon continued to rely on Barretts' representations regarding the absence of asbestos in its talc. If proven, these facts could support a finding of gross negligence or conscious disregard sufficient to sustain a claim for punitive damages (see Ross v Louise Wise Servs., Inc., at 489).

The Court finds that not only has Defendant failed to meet its prima facie burden, but Plaintiff has raised genuine and material factual disputes regarding whether Vi-Jon's conduct constituted a failure to meet its duty to ensure product safety and whether that failure rose to the level of recklessness. Summary judgment is therefore inappropriate as to both compensatory and punitive damages.

Accordingly, it is hereby

ORDERED that the motion of defendant Vi-Jon, LLC for summary judgment is DENIED in its entirety.