Opinion
05-21-2024
IN RE: NEW YORK CITY ASBESTOS LITIGATION Patricia Rasso, as independent executor of the Estate of Linda English, deceased, Plaintiff–Respondent, v. Avon Products, Inc., et al., Defendants, Colgate–Palmolive Company (For Cashmere Bouquet), Defendant–Appellant.
Gordan Rees Scully Mansukhani, LLP, New York (Mohammad Haque of counsel), for appellant. Simmons Hanly Conroy LLP, New York (James M. Kramer of counsel), for respondent.
Gordan Rees Scully Mansukhani, LLP, New York (Mohammad Haque of counsel), for appellant.
Simmons Hanly Conroy LLP, New York (James M. Kramer of counsel), for respondent.
Manzanet–Daniels, J.P., Moulton, Rosado, O’Neill Levy, JJ.
Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about September 13, 2023, which denied defendant Colgate–Palmolive Co.’s (Colgate) motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
When a foreign resident’s exposure to a toxin occurs in foreign states, New York’s connection to the action "is tenuous at best" (Kush v. Abbott Labs., 238 A.D.2d 172, 172, 655 N.Y.S.2d 520 [1st Dept. 1997]). While decedent used defendant’s talcum powder product while in New York on a number of regular layovers as a flight attendant, her use of the product over the course of decades was overwhelmingly in Texas, which was the state of her domiciliary, and she could not recall ever purchasing the product in New York (see Schultz v. Boy Scouts of Am., 65 N.Y.2d 189, 195, 491 N.Y.S.2d 90, 480 N.E.2d 679 [1985]; compare Matter of Eighth Judicial Dist. Asbestos Litig., 273 A.D.2d 863, 863, 709 N.Y.S.2d 284 [4th Dept. 2000]; In re Joint E. & S. Districts Asbestos Litig. [Coseglia], 1990 WL 3572, at 3 [E.D.N.Y.1990]). Thus, Texas law concerning proof of specific causation in toxic tort cases applies (Bostic v. Georgia–Pac. Corp., 439 S.W.3d 332, 336 [Tex. 2014]; Borg–Warner Corp. v. Flares, 232 S.W.3d 765 [Tex. 2007]). Under Bostic, where a plaintiff cannot adduce direct evidence of specific causation, they may rely on scientifically reliable evidence in the form of epidemiological studies, but only where the studies showed that the product at issue more than doubled a plaintiff’s risk of injury. Plaintiff failed to meet that standard, her experts opining only that decedent’s exposure to asbestos contributed to the development of her mesothelioma, without any data quantifying her exposure or data showing at what level of exposure the risk of disease would double.