Preview
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
EXHIBIT DD
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.
No. 24
Francis Nemeth, &c.,
Respondent,
v.
Brenntag North America, &c., et
al.,
Defendants,
Whittaker, Clark & Daniels, Inc.,
Appellant.
Bryce L. Friedman, for appellant.
Seth A. Dymond, for respondent.
Chamber of Commerce of the United States of America et al., Colgate-Palmolive
Company et al., Richard L. Kradin et al., amici curiae.
GARCIA, J.:
Plaintiff’s spouse used a commercial talcum powder daily for a period of more than
ten years during the 1960s and early 1970s. Decades later, she developed mesothelioma
-1-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-2- No. 24
and died as a result. Plaintiff brought this action, alleging that use of the cosmetic powder
was a proximate cause of decedent’s illness. A jury agreed and awarded damages. Because
plaintiff’s proof of causation was insufficient as a matter of law, we now reverse and
dismiss the complaint against defendant.
I.
Florence Nemeth was diagnosed with peritoneal mesothelioma1 in 2012 and passed
away from the disease in 2016. Plaintiff—decedent’s husband—sued an array of
defendants involved in the manufacturing and distribution of certain products alleged to
contain asbestos to which decedent was exposed over the course of her lifetime, on the
theory that each product proximately caused her illness. Plaintiff alleged that decedent
used lawn care products containing asbestos; worked with construction materials
containing asbestos during home renovations; and inhaled asbestos fibers when she
laundered the clothing her son wore as an elevator repairman. Plaintiff also alleged that
defendant-appellant Whittaker supplied defendant Shulton with talc contaminated with
asbestos that was then used in a commercial talcum powder, Desert Flower, which decedent
applied daily from 1960 until 1971. Plaintiff settled with all other defendants, and the case
went to trial against Whittaker only.
1
Plaintiff’s expert explained that mesothelioma is a tumor of the mesothelia cells, and can
occur in “areas where there is mesothelia tissue[, . . . m]ost commonly it’s the pleura [the
lining of the lungs] [. . . but it] can also occur in the abdomen, when it’s called peritoneal
mesothelioma.”
-2-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-3- No. 24
At trial, the jury viewed a videotaped deposition of decedent, in which she explained
that she used Desert Flower daily during the relevant time frame, applying the product
while inside small unventilated bathrooms and later cleaning up the residual powder. This
routine lasted approximately seven minutes each day. Plaintiff then called a geologist,
Sean Fitzgerald, who testified about a test—referred to as a “glove box test”—in which he
agitated a vintage sample of Desert Flower within a small, sealed plexiglass chamber to
simulate decedent’s use of the talc and to capture the released asbestos fibers, in an effort
to “target[] the actual exposure.” He testified that he strategically placed filters inside the
chamber to simulate “breathing zones.” He concluded that the asbestos fibers in the sample
of Desert Flower were “significantly releasable” and that 2.7 million fibers were released
into the air of the chamber during his test and so, multiplying that number by the amount
of time, duration, and frequency of decedent’s exposure, he concluded that she must have
been exposed to “thousands to millions of fibers, billions and trillions when you add it up
through repeated use.” Fitzgerald compared this to the ambient level, or what “an average
person living in an urban area breathes in,” of 60,000 fibers per day.
Dr. Jacqueline Moline, a doctor of internal medicine, also testified for plaintiff. She
told the jury that mesothelioma is a “sentinel health event” or “signal tumor,” meaning that
“if someone develops that cancer, . . . then it signals that they’ve had exposure to that
particular substance.” She testified that in reaching her conclusions she relied on clinical
experience treating patients with mesothelioma, peer reviewed literature discussing
epidemiological and case studies, and government standards and regulations governing
acceptable levels of asbestos. Dr. Moline concluded that, although “not every inhalation
-3-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-4- No. 24
of asbestos fibers results in peritoneal mesothelioma,” because “some exposures to
asbestos . . . are trivial and don’t increase a person’s risk,” Desert Flower was “a substantial
contributing factor” to decedent’s peritoneal mesothelioma. Relying on Fitzgerald’s
testimony regarding releasable asbestos fibers, she testified that decedent’s exposure was
“at levels at which multiple studies have shown elevated rates of mesothelioma.”
The jury returned a verdict in plaintiff’s favor, awarding $15 million to the estate
and $1.5 million to plaintiff for loss of consortium, and apportioned fault equally between
Whittaker and Shulton.2 Whittaker moved for judgment notwithstanding the verdict,
arguing that it was not supported by legally sufficient evidence as to causation. The trial
court denied the motion.
A divided Appellate Division modified the judgment in connection with the
damages awarded, concluding that certain offsets relating to settling defendants had been
improperly calculated, but otherwise affirmed, holding that there was sufficient evidence,
“consistent with the Court of Appeals’ [precedent] . . . to support the jury’s verdict and
conclusion that [decedent] was exposed to a sufficient quantity of asbestos to cause the
disease” (183 AD3d 211, 215 [1st Dept 2020]). The court determined that “Fitzgerald’s
testimony about the amount of asbestos released in a glove box analysis of [Desert Flower],
along with the timing, duration and frequency of [decedent’s] use of that product, with his
conclusion that the amount of asbestos greatly exceeded by ‘several [orders] of magnitude’
2
In response to a ruling by the trial court, the parties later stipulated to a reduced award,
and judgment against Whittaker was ultimately entered in the amount of approximately $2
million to decedent’s estate and $200,000 for loss of consortium.
-4-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-5- No. 24
the amount of asbestos fibers in ambient air, presents a sound basis for the jury’s
conclusion” (id. at 230).
One Justice dissented, asserting that plaintiff had both “failed to present expert
evidence specifying the level of exposure to respirable asbestos that would have been
sufficient to cause peritoneal mesothelioma” and that “plaintiff’s evidence falls short of
establishing that Mrs. Nemeth ‘was exposed to sufficient levels of the toxin to cause the
illness’ ” (id. at 236-237 [Friedman, J., dissenting], quoting Parker v Mobil Oil Corp., 7
NY3d 434, 448 [2006]). The dissent concluded that the glove box study was insufficient
to establish decedent’s exposure level because it did not estimate the quantity of asbestos
fibers to which the decedent would have been exposed, and that Dr. Moline’s testimony
failed to provide more than “vague, conclusory and subjective terms . . . characteriz[ing]
both the level of asbestos exposure sufficient to cause peritoneal mesothelioma . . . and the
level of asbestos exposure to which [decedent] allegedly was subjected” (id. at 241-242).
The Appellate Division granted leave to appeal to this Court.
II.
A court may set aside a jury verdict on the ground that it is not supported by legally
sufficient evidence where “there is simply no valid line of reasoning and permissible
inferences which could possibly lead rational [jurors] to the conclusion reached by the jury
on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493,
499 [1978]; CPLR 4404 [a]). For the reasons that follow, we conclude that plaintiff failed
to introduce sufficient evidence to support the jury’s verdict.
-5-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-6- No. 24
We agree with the dissent below that plaintiff’s proof failed as a matter of law to
meet our test for proving causation in toxic tort cases, and we take the opportunity to
reaffirm our requirements in such cases. As we noted sixteen years ago, “[i]t is well-
established that an opinion on causation should set forth a plaintiff’s exposure to a toxin,
that the toxin is capable of causing the particular illness (general causation) and that
plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific
causation)” (Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]). In Parker, the toxin at
issue was benzene in gasoline, the illness was acute myelogenous leukemia, and the expert
testimony described plaintiff’s exposure as only “frequent[],” “excessive,” and “far more”
than exposure in epidemiological studies (id. at 449-450). We acknowledged that, because
there are times that “a plaintiff’s exposure to a toxin will be difficult or impossible to
quantify by pinpointing an exact numerical value,” “it is not always necessary for a plaintiff
to quantify exposure levels precisely or use the dose-response relationship, provided that
whatever methods an expert uses to establish causation are generally accepted in the
scientific community” (id. at 447-448). We noted that there may be several ways that an
expert might demonstrate causation, for example by using mathematical modeling, but that
any method used must be “generally accepted as reliable in the scientific community” (id.
at 449).
We later emphasized that Parker, despite including language to the effect that
precise quantification of exposure is not always required, “by no means . . . dispensed with
a plaintiff’s burden to establish sufficient exposure to a substance to cause the claimed
adverse health effect” (Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762, 784 [2014]).
-6-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-7- No. 24
Plaintiffs must, using expert testimony based on “generally accepted methodologies,” still
establish sufficient exposure to the toxin even though “it is sometimes difficult, if not
impossible,” to do so (Sean R. v BMW of N. Am., LLC, 26 NY3d 801, 812 [2016]).
Throughout this line of toxic tort cases, we have repeatedly rejected as insufficient to prove
causation expert testimony that exposure to a toxin is “excessive” or “far more” than others,
and such testimony that merely links a toxin to a disease or “work[s] backwards from
reported symptoms to divine an otherwise unknown concentration” of a toxin to prove
causation (Parker, 7 NY3d at 449 [experts failed to demonstrate causation with “subjective
and conclusory assertion” that plaintiff had more exposure than the workers in an
epidemiological study]; Sean R., 26 NY3d at 810 [rejecting experts’ testimony that plaintiff
was exposed to 1,000 ppm of gasoline vapor, a number reached by analyzing plaintiff’s
symptoms]). Expert testimony, we have made clear, is to be excluded when “ ‘there is
simply too great an analytical gap between the data and the opinion proffered’ ” (Cornell,
22 NY3d at 783-785, quoting Gen. Elec. Co. v Joiner, 522 US 136, 146 [1997]).
More recently, we affirmed the Appellate Division’s holding that defendant was
entitled to judgment notwithstanding the verdict in a case that applied these principles in
the asbestos context (see Matter of New York City Asbestos Litig. [Juni], 32 NY3d 1116,
1118 [2018], affg 148 AD3d 233, 236 [1st Dept 2017] [“the fact that asbestos . . . has been
linked to mesothelioma() is not enough for a determination of liability against a particular
defendant; a causation expert must still establish that the plaintiff was exposed to sufficient
levels of the toxin from the defendant’s products to have caused his disease”]). As was the
-7-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-8- No. 24
case in Juni, plaintiff here failed to prove that exposure to asbestos in defendant’s product
was a proximate cause of decedent’s illness.3
Dr. Moline provided the expert opinion that decedent’s “exposure to the
contaminated talcum powder was a substantial contributing factor” in causing decedent’s
peritoneal mesothelioma. The basis for that opinion, however, did not meet our
requirements for establishing exposure to a toxin in an amount sufficient to cause
decedent’s peritoneal mesothelioma.
With respect to the level of exposure that could serve as a proximate cause of
decedent’s peritoneal mesothelioma, Dr. Moline asserted that “brief or low level exposures
of asbestos” could cause the disease, but that “there are some exposures to asbestos that
are trivial and don’t increase a person’s risk of developing mesothelioma” and that
exposure to twice the amount of asbestos in ambient air would not cause mesothelioma.
She also testified that mesothelioma may develop idiopathically—that is, without a known
cause.4 This testimony was plainly insufficient (see Parker, 7 NY3d at 449-450 [expert’s
conclusion that plaintiff’s exposure was “frequent” or “excessive” could not be
3
Any reliance on the Appellate Division’s holding in Lustenring v AC&S Inc. (13 AD3d
69 [1st Dept 2004]) to support a theory that “working in dust laden with asbestos generated
from products containing asbestos,” along with “expert testimony that dust raised from
manipulating asbestos products ‘necessarily’ contains enough asbestos to cause
mesothelioma,” is incorrect (Juni, 148 AD3d at 252 [Feinman, J., dissenting]; see 183
AD3d at 225-226, 229-230). Such an approach is incompatible with Parker and its
progeny.
4
That Dr. Moline doubts whether “patients [were asked] the right questions about their
exposure” has little bearing on evidence that mesothelioma may develop without a known
cause (dissenting op at 8 n 5).
-8-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-9- No. 24
characterized as a “scientific expression” of exposure level]; Matter of New York City
Asbestos Litig. [DiScala], 173 AD3d 573 [1st Dept 2019]).
The majority below nevertheless asserted that “Dr. Moline’s testimony did not
simply ‘associate’ or ‘link’ asbestos to mesothelioma, she described it as a sentinel health
event of asbestos exposure, and that virtually all cases of mesothelioma are related to
asbestos exposure” (id. at 228). Yet this is no different than conclusory assertions of
causation that we have held were insufficient to meet the Parker requirements (Sean R., 26
NY3d at 810; Cornell, 22 NY3d 784; Parker, 7 NY3d at 450). That standard must be met
whether the toxin is mold, benzene, or asbestos (see Juni, 143 AD3d at 238).
Nor did the studies or scientific literature cited or relied upon by Dr. Moline provide
the necessary support for her conclusion as to proximate causation. Those studies include
the “Welch article,” which identifies only an association between “low level” exposure to
asbestos and peritoneal mesothelioma, and does not quantify “low level”; the “Helsinki
criteria,” which found an association between “significant” asbestos exposure and pleural
mesothelioma without identifying what level of exposure constitutes “significant,” and
continued on to find that peritoneal mesothelioma is associated with “higher” levels of
exposure; and a single case study describing an incidence of peritoneal mesothelioma
without determining either the amount of exposure or a causal connection between the
individual’s use of talc and his illness. Indeed, as the dissent below noted, “[c]ritically, not
one of the articles Dr. Moline discussed on the witness stand . . . sets forth an estimate of
the minimum level of exposure to respirable asbestos . . . that would suffice to cause
peritoneal mesothelioma” (183 AD3d at 238-239, 239 n 6 [Friedman, J., dissenting]).
-9-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
- 10 - No. 24
Simply put, Dr. Moline failed to provide any foundational basis for her opinion that
exposure to asbestos at a level analogous to decedent’s was shown to be a substantial factor
in causing mesothelioma of any kind. Her causation testimony attempted to rely on a
“[c]omparison to the exposure levels of subjects of other studies” but failed to provide “a
specific comparison sufficient to show how the plaintiff’s exposure level related to those
of the other subjects” (Parker, 7 NY3d at 449). In addition, as we cautioned in Parker,
“standards promulgated by regulatory agencies as protective measures are inadequate to
demonstrate legal causation” (Parker, 7 NY3d at 450), and therefore Dr. Moline’s
testimony regarding the “permissible exposure limit” to asbestos promulgated by the
Occupational Safety and Health Administration (OSHA) could not be relied upon to fill
this gap in proof as to the level of exposure sufficient to cause peritoneal mesothelioma.
Under these circumstances, plaintiff’s proof failed to demonstrate decedent’s level
of exposure to asbestos in a manner that established causation. In attempting to do so,
plaintiff primarily relied on the testimony of the geologist, Fitzgerald. The dissent,
plaintiff, and the majority below all characterize Fitzgerald’s glove box test as a
quantification, or at least a scientific expression, of decedent’s exposure, recasting it as
some sort of “breathability” study (dissenting op at 21). It was not. Fitzgerald shook a
vintage sample of Desert Flower to determine the number of fibers released into a box, or
as he put it, to “contain anything that’s released” and “determine . . . if that asbestos was
releasable.” Fitzgerald could not offer an estimate of the amount that would be inhaled
based on the test he conducted. Nor did his identification of the number of released fibers
and description of those fibers as of “an inhalable size” establish causation by
- 10 -
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
- 11 - No. 24
demonstrating that decedent’s exposure was comparable to similar exposures proven to be
causally related to the development of mesothelioma. While a precise numerical value is
not required, Fitzgerald’s test simply failed to provide any scientific expression linking
decedent’s actual exposure to asbestos to a level known to cause mesothelioma.
Dr. Moline purported to base her expert opinion on the results of Fitzgerald’s test,
testifying that the volume of fibers released into the glove box during Fitzgerald’s
simulation corresponds to those “at which multiple studies have shown elevated rates of
mesothelioma.” But Dr. Moline admitted that industrial hygienists could have estimated
decedent’s inhalation levels (id. at 244 n 12 [Friedman, J dissenting] [noting that “it is
possible to conduct a test in an actual bathroom of the level of exposure to respirable
asbestos resulting from the use of a cosmetic powder” and “Mr. Fitzgerald, however, did
not conduct any such test with Desert Flower in a bathroom the size of Mrs. Nemeth’s”]).
Plaintiff could have introduced such evidence, and could also have introduced evidence
regarding the inhalation levels known to cause peritoneal mesothelioma, but did not do so.
Because of these flaws in Fitzgerald’s test, Dr. Moline’s corresponding reliance on that test
to conclude that decedent’s exposure caused her mesothelioma was likewise insufficient. 5
Although we have recognized that in any given case it may be “difficult, if not
impossible, to quantify a plaintiff’s past exposure” to a toxin (Sean R., 26 NY3d at 812),
our standard itself is not “impossible” for plaintiffs to meet (dissenting op at 25). We must,
5
Of course, the issue is not that Dr. Moline relied on tests other than those she performed
herself (dissenting op at 22-23), but rather that the test on which she relied was itself
insufficient to support Dr. Moline’s conclusion.
- 11 -
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
- 12 - No. 24
as always, strike a balance between the need to exclude “unreliable or speculative
information” as to causation with our obligation to ensure that we have not set “an
insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in
court” (Parker, 7 NY3d at 447). The requirement that plaintiff establish, using expert
testimony based on generally accepted methodologies, sufficient exposure to a toxin to
cause the claimed illness strikes the appropriate balance (see Cornell, 22 NY3d at 784).
The fault here is not in our standard, but in plaintiff’s proof.6
Accordingly, the order should be reversed, with costs, and the complaint as against
Whittaker, Clark & Daniels, Inc. dismissed.
6
Because we reverse on this basis, we do not address defendant’s argument regarding
plaintiff’s summation.
- 12 -
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
RIVERA, J. (dissenting):
Florence (Flo) Nemeth died of peritoneal mesothelioma before the trial in this toxic
tort action, which had been brought against several companies for their role in the
manufacture, supply, distribution, and sale of products that allegedly caused her terminal
-1-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-2- No. 24
cancer. Defendant Whittaker, Clark & Daniels—the only defendant that went to trial—
appeals from a judgment for damages based on a jury determination that defendant supplied
the asbestos-containing talc in the cosmetic powder used by Flo which, in turn, was a
causative factor in her peritoneal mesothelioma. The trial evidence established the
existence of asbestos in Flo’s brand of cosmetic powder, her daily use of the powder in
small, unventilated bathrooms over 11 years, and that she was diagnosed decades after her
exposure to the asbestos, as is common for mesothelioma patients. Plaintiff relied on
epidemiological studies, case reports, and expert testimony to show that: (1) asbestos
causes cancer, including the type that took Flo’s life; (2) low-level exposure to asbestos
causes cancer; (3) mathematical modeling performed for this litigation measured the
amount of asbestos in the cosmetic powder released into Flo’s breathable zone, determining
that it was at least twice the amount found in ambient air and that it exceeded the amount
permitted in schools under federal law; and (4) the asbestos in the cosmetic powder used
by Flo caused her cancer. That evidence persuaded the jury on causation. The trial court
and the Appellate Division agreed that the evidence was sufficient. We should do the same
because plaintiff met the standard set forth in Parker v Mobil Oil Corp. (7 NY3d 434
[2006]) and its progeny. The majority’s reversal is improperly based on the weight, not
sufficiency, of this evidence.
-2-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-3- No. 24
I.
A.
Flo and her husband Frank Nemeth filed this toxic tort action against several
defendants.1 Flo passed away during the litigation and Frank continued, in his individual
capacity and as executor of Flo’s estate.2 Although Flo did not live to testify in person, her
deposition testimony was entered into evidence at trial. In detail, she described how, as a
teenager, she began her daily routine of applying Desert Flower cosmetic power all over
her body after showering. She first saw her mother use it, and she followed suit, the two of
them going through a large box of this same brand of powder every two weeks. Flo
explained that she used the powder puff that came in the box to apply the powder to her
body, including around her neck. Her parents’ apartment bathroom was “tiny,” 5 by 6 feet,
with no ventilation, windows, or fans. For approximately six years, Sunday through
Monday, while living in this apartment, she applied the powder in the same way; each time,
the bathroom became dusty, and she inhaled the dust. As she applied the powder, the dust
fell on the sink, toilet, and floor, and Flo used a damp towel for about 5 minutes to clean
up the dust.
1
I use “Flo,” rather than Florence, because that is how Frank and his attorneys referred to
her throughout the trial and in the briefing to this Court.
2
The Third Amended Complaint amended the caption and added a claim for wrongful
death.
-3-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-4- No. 24
When she was 14, Flo met Frank. After years of dating, they married and moved
into an apartment. Flo continued to apply the Desert Flower cosmetic powder daily. As in
her parents’ home, she applied the powder in the bathroom, which had the same dimensions
and was just as tiny as her parents’. Flo stopped using the powder when she was 25 years
old, approximately 11 years after first using Desert Flower.
The couple eventually moved to a house, had children and grandchildren, and Flo
testified to an active life with her family—going to baseball games, visiting amusement
parks, gardening, and playing with her grandchildren—until at 68 years of age, she was
diagnosed with peritoneal mesothelioma, a rare and terminal cancer of the abdomen. The
doctor told Flo she had six years left to live. Those years were marked by several surgeries,
rounds of chemotherapy treatment, and a drug medication regimen.
Flo described the physical pain and psychological effects of the cancer:
“I get up in the morning, I try to do little things just to move
but when I do that, I start huffing and puffing and then I
wheeze. So, now I have to sit down to catch my breath, then I
can get up again, do something, a little bit just to move a little
bit but all day long I have to stop and sit to catch my breath.”
“Every day I think [about] . . . not being around to see my
grandchildren get married or my grandchildren to have
children, it’s all part of life.”
As her responses further reveal, the emotional toll was overwhelming:
“Q. How does that make you feel emotionally knowing that
they have to take care of you and you can’t take care of them?
“A. Very bad, very, very depressing. There are times I cry but
they don’t know it. I don’t like to let them see that I get upset,
-4-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-5- No. 24
so either I go in the bathroom if they’re there and let it out and
come back out.
“Q. Why don’t you like to see them—let them see you get
upset?
“A. Because I know they’re going to be upset and I don’t want
them to do that. Then I’ll come out of the bathroom and I joke
around and I make them—I try to push myself to make them
think I’m not going through all this pain and suffering.”
B.
Plaintiff’s causation evidence rested on testimony of two experts. Their credentials
are not at issue on this appeal. Sean Fitzgerald, a licensed geologist and microscopist
specializing in asbestos,3 tested a sample of Desert Flower from the period when Flo used
the product. He explained that the experimental design was based upon an earlier, peer-
reviewed study that he had co-authored and which he described to the jury.4 In accordance
with this design, Mr. Fitzgerald constructed a “glove box,” a clear box constructed of
Plexiglass with two gloves built in, allowing him to manipulate the talcum powder in a
sealed environment. Mr. Fitzgerald and defendant’s expert both noted that the use of a
glove box for this testing purpose had been approved by the federal Environmental
Protection Agency. Inside the box were pumps, one positioned under Mr. Fitzgerald’s nose
3
At the time of the trial, Fitzgerald had been working as a professional geologist for
approximately 30 years. He had worked in several laboratories—including the McCrone
Institute, a well-known microscopy laboratory—and had training in industrial hygiene and
public health. Fitzgerald also served on asbestos-related committees operated by ASTM
International, a private standards-setting organization whose standards are used worldwide.
He also served as a peer reviewer for a third-party update to the Environmental Protection
Agency’s Purple Book, which contains up-to-date research on asbestos.
4
See Ronald E. Gordon et al., Asbestos in Commercial Cosmetic Talcum Powder as a
Cause of Mesothelioma in Women, 20 Intl J Occupational & Envtl Health 318 (2014).
-5-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-6- No. 24
to simulate asbestos release in the breathing zone relative to the hands in the gloves. He
aerosolized the talcum powder by pouring it onto his gloved hand. Then, he allowed the
pumps to run for 15 minutes while his hands were in the glove box. The pump closest to
Mr. Fitzgerald’s nose ran at a volume of two liters per minute, half of the average
respiratory rate. Mr. Fitzgerald placed the other filters farther back in the glove box and
ran the pumps attached to those filters at a higher volume to simulate powder spreading
towards the back of a room. Mr. Fitzgerald also placed a clean wipe in the back of the glove
box as a “dust fall” monitor to measure the amount of powder collected there and determine
what would happen should the powder be re-aerosolized.
Mr. Fitzgerald determined that the asbestos contained in Desert Flower “was
significantly releasable,” at a level “thousands of times” higher than would be acceptable
in a school under the federal Asbestos Hazard Emergency Response Act (15 USC § 2641
et seq. [AHERA]), using AHERA’s definitions and protocols for measurement. He further
estimated that “millions of fibers [were] initially released into the chambers” and opined
that the fibers would have been of an inhalable size.
In response to a series of counsel’s hypotheticals, Mr. Fitzgerald opined—based on
his experience and education, and the test results and Flo’s description of her daily use of
the cosmetic powder in the confines of her tiny bathroom—that had Flo used Desert Flower
every day, she would have been exposed to inhalable asbestos in measures above those
acceptable under the AHERA standards. The final hypothetical and response is particularly
significant:
-6-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-7- No. 24
“Q. With those facts that I asked you to assume in mind [i.e.,
facts pertaining to Flo’s long-term use of Desert Flower and
the geologic source of the talc], do you have an opinion that—
And I would like you to further assume within those facts that
Flo Nemeth testified that she breathed this dust every time she
used the product. With those facts in mind, do you have an
opinion within a reasonable degree of geological and scientific
certainty about whether the talc from those mines that was used
in Desert Flower was consistently contaminated with
releasable asbestos?
“. . .
“A. I do. And my opinion to a reasonable degree of scientific
and geological certainty is that that product contained
releasable asbestos fibers including tremolite, anthophyllite
and occasionally chrysotile asbestos based on my research of
the geology and the mineralogy of the actual source talcs that
you’ve asked me to assume were constituents supplied to
Shulton through Whittaker, Clark, Daniels.”
During cross-examination, Mr. Fitzgerald conceded that it is difficult to count
asbestos in talc, that microscopy involves a degree of subjective interpretation, and that his
testing was an approximation in that he did not conduct testing in a bathroom-sized space.
Defendant’s geologist witness criticized Mr. Fitzgerald for not using a bathroom-sized
simulation but admitted that the glove-box is a less expensive method for counting asbestos
than a space the size of a bathroom.
Plaintiff’s expert, Dr. Jacqueline Moline,5 testified that asbestos causes peritoneal
mesothelioma and that, based on Flo’s testimony and Mr. Fitzgerald’s results, defendant’s
5
Dr. Moline earned her M.D. at the University of Chicago-Pritzker School of Medicine
and a Master of Science in Community Medicine (equivalent to a Master of Public Health)
from the Mount Sinai School of Medicine in New York. Dr. Moline completed her internal
medicine residency at Yale and then completed a fellowship in occupational medicine with
a team of asbestos experts at Mount Sinai Medical Center, where she then worked for
-7-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-8- No. 24
asbestos-containing talc was a significant factor in Flo’s terminal cancer. Specifically, Dr.
Moline explained that asbestos is “associated with four cancers,” including mesothelioma,
and that peritoneal mesothelioma is rare, with approximately 350 cases per year. She
further testified that “[v]irtually all cases of mesothelioma are related to asbestos
exposure,” and that mesothelioma is considered a “Sentinel Health Event,” and that a
peritoneal mesothelioma mass is a “signal tumor,” meaning that development of that illness
and the tumor implies asbestos exposure.6 As to adverse health impact exposure levels, Dr.
Moline testified that “brief or low level exposures of asbestos can cause mesothelioma.”
She described a study that “found that even slight exposure to asbestos was associated with
around 19 years. She also served as the Director of the National Institute for Occupational
Safety and Health (NIOSH) New York/New Jersey Education and Research Center, a
consortium of educational institutions that provides interdisciplinary training in
occupational health and safety. At the time of trial, Dr. Moline served as the Chair of the
Department of Occupational Medicine, Epidemiology and Prevention at Northwell Health.
6
According to the majority, Dr. Moline “testified that mesothelioma may develop
idiopathically—that is, without a known cause” (majority op at 8). To the contrary, Dr.
Moline made clear that she disagreed with the defendant’s expert’s opinion that most cases
of mesothelioma are “spontaneous” and occur as a result of age and genetics, rather than
asbestos exposure. Dr. Moline opined, based on her knowledge of epidemiological
methodologies, that “most allegedly” “idiopathic” cases of mesothelioma involved prior
exposures to asbestos that researchers had not identified due to poor study design. She also
explained that many of her colleagues who treat mesothelioma would only know to ask
about particular exposure scenarios based on what had been reported in the literature. For
example, she explained that until recently many doctors had not known of the link between
cosmetic talc and asbestos, and failed to ask patients—particularly women—about their
use of beauty products containing talc. Thus, according to Dr. Moline, in those cases
doctors would have wrongly reported their patients’ mesotheliomas as “idiopathic,” when
in reality, they had failed to perceive the cause. The majority’s assertion that asking the
right questions “has little bearing on evidence that mesothelioma may develop without a
known cause” (id. at 8 n 4) misses the mark. The right questions, in Dr. Moline’s opinion,
could uncover known unknowns, and that opinion had bearing on the core debate between
the parties’ experts.
-8-
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023
-9- No. 24
an increased risk over six fold of developing mesothelioma in th[e study] group” (the
Welch study).7 Further, the 0.1 fiber per cubic centimeter of air Permissible Exposure Limit
(PEL) for asbestos set by the federal Occupational Safety and Health Administration
(OSHA) “shows that very low levels of asbestos exposure can cause disease.” According
to Dr. Moline, the medical literature describes increased mesothelioma rates even at low
levels of asbestos exposure. She also referred to epidemiological studies and public health
literature linking talc with asbestos and describing asbestos as a cause of mesothelioma,8
as well as various mortality studies.9
Dr. Moline discussed the Helsinki Criteria,10 which explain that “low levels of
exposure are attributed to mesothelioma.” The criteria were originally developed in 1997
7
See Laura S. Welch et al., Asbestos and Peritoneal Mesothelioma Among College-
Educated Men, 11 Intl J Occupational & Envtl Health 254 (2005).
8
See Victor L. Roggli et al., Tremolite and Mesothelioma, 46 Annals Occupational
Hygiene 447 (2002); Sharon H. Srebro & Victor L. Roggli, Asbestos-Related Disease
Associated With Exposure to Asbestiform Tremolite, 26 Am J Indus Med 809 (1994); L.
Paoletti et al., Evaluation by Electron Microscopy Techniques of Asbestos Contamination
in Industrial, Cosmetic, and Pharmaceutical Talcs, 4 Regul Toxicology & Pharmacology
222 (1984); L. Longo & R.C. Young, Cosmetic Talc and Ovarian Cancer, 314 Lancet 349
(1979); A.N. Rohl et al., Consumer Talcums and Powders: Mineral and Chemical
Characterization, 2 J Toxicology & Envtl Health 255 (1976).
9
See Alberto Andrion et al., Malignant Peritoneal Mesothelioma in a 17-Year-Old Boy
With Evidence of Previous Exposure to Chrysotile and Tremolite Asbestos, 25 Hum
Pathology 617 (1994); J. Gamble et al., An Epidemiological-Industrial Hygiene Study of
Talc Workers, 26 Annals Occupational Hygiene 841 (1982).
10
See Consensus Report, Asbestos, Asbestosis, and Cancer, the Helsinki Criteria for
Diagnosis and Attribution 2014: Recommendations, 41 Scandinavian J Work Envt &
Health 5 (Henrik Wolff et al. reporters 2015) (hereinafter “Helsinki II”); Consensus Report,
-9-
FILED: ERIE COUNTY CLER
Preview
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 EXHIBIT DD FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports. No. 24 Francis Nemeth, &c., Respondent, v. Brenntag North America, &c., et al., Defendants, Whittaker, Clark & Daniels, Inc., Appellant. Bryce L. Friedman, for appellant. Seth A. Dymond, for respondent. Chamber of Commerce of the United States of America et al., Colgate-Palmolive Company et al., Richard L. Kradin et al., amici curiae. GARCIA, J.: Plaintiff’s spouse used a commercial talcum powder daily for a period of more than ten years during the 1960s and early 1970s. Decades later, she developed mesothelioma -1- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -2- No. 24 and died as a result. Plaintiff brought this action, alleging that use of the cosmetic powder was a proximate cause of decedent’s illness. A jury agreed and awarded damages. Because plaintiff’s proof of causation was insufficient as a matter of law, we now reverse and dismiss the complaint against defendant. I. Florence Nemeth was diagnosed with peritoneal mesothelioma1 in 2012 and passed away from the disease in 2016. Plaintiff—decedent’s husband—sued an array of defendants involved in the manufacturing and distribution of certain products alleged to contain asbestos to which decedent was exposed over the course of her lifetime, on the theory that each product proximately caused her illness. Plaintiff alleged that decedent used lawn care products containing asbestos; worked with construction materials containing asbestos during home renovations; and inhaled asbestos fibers when she laundered the clothing her son wore as an elevator repairman. Plaintiff also alleged that defendant-appellant Whittaker supplied defendant Shulton with talc contaminated with asbestos that was then used in a commercial talcum powder, Desert Flower, which decedent applied daily from 1960 until 1971. Plaintiff settled with all other defendants, and the case went to trial against Whittaker only. 1 Plaintiff’s expert explained that mesothelioma is a tumor of the mesothelia cells, and can occur in “areas where there is mesothelia tissue[, . . . m]ost commonly it’s the pleura [the lining of the lungs] [. . . but it] can also occur in the abdomen, when it’s called peritoneal mesothelioma.” -2- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -3- No. 24 At trial, the jury viewed a videotaped deposition of decedent, in which she explained that she used Desert Flower daily during the relevant time frame, applying the product while inside small unventilated bathrooms and later cleaning up the residual powder. This routine lasted approximately seven minutes each day. Plaintiff then called a geologist, Sean Fitzgerald, who testified about a test—referred to as a “glove box test”—in which he agitated a vintage sample of Desert Flower within a small, sealed plexiglass chamber to simulate decedent’s use of the talc and to capture the released asbestos fibers, in an effort to “target[] the actual exposure.” He testified that he strategically placed filters inside the chamber to simulate “breathing zones.” He concluded that the asbestos fibers in the sample of Desert Flower were “significantly releasable” and that 2.7 million fibers were released into the air of the chamber during his test and so, multiplying that number by the amount of time, duration, and frequency of decedent’s exposure, he concluded that she must have been exposed to “thousands to millions of fibers, billions and trillions when you add it up through repeated use.” Fitzgerald compared this to the ambient level, or what “an average person living in an urban area breathes in,” of 60,000 fibers per day. Dr. Jacqueline Moline, a doctor of internal medicine, also testified for plaintiff. She told the jury that mesothelioma is a “sentinel health event” or “signal tumor,” meaning that “if someone develops that cancer, . . . then it signals that they’ve had exposure to that particular substance.” She testified that in reaching her conclusions she relied on clinical experience treating patients with mesothelioma, peer reviewed literature discussing epidemiological and case studies, and government standards and regulations governing acceptable levels of asbestos. Dr. Moline concluded that, although “not every inhalation -3- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -4- No. 24 of asbestos fibers results in peritoneal mesothelioma,” because “some exposures to asbestos . . . are trivial and don’t increase a person’s risk,” Desert Flower was “a substantial contributing factor” to decedent’s peritoneal mesothelioma. Relying on Fitzgerald’s testimony regarding releasable asbestos fibers, she testified that decedent’s exposure was “at levels at which multiple studies have shown elevated rates of mesothelioma.” The jury returned a verdict in plaintiff’s favor, awarding $15 million to the estate and $1.5 million to plaintiff for loss of consortium, and apportioned fault equally between Whittaker and Shulton.2 Whittaker moved for judgment notwithstanding the verdict, arguing that it was not supported by legally sufficient evidence as to causation. The trial court denied the motion. A divided Appellate Division modified the judgment in connection with the damages awarded, concluding that certain offsets relating to settling defendants had been improperly calculated, but otherwise affirmed, holding that there was sufficient evidence, “consistent with the Court of Appeals’ [precedent] . . . to support the jury’s verdict and conclusion that [decedent] was exposed to a sufficient quantity of asbestos to cause the disease” (183 AD3d 211, 215 [1st Dept 2020]). The court determined that “Fitzgerald’s testimony about the amount of asbestos released in a glove box analysis of [Desert Flower], along with the timing, duration and frequency of [decedent’s] use of that product, with his conclusion that the amount of asbestos greatly exceeded by ‘several [orders] of magnitude’ 2 In response to a ruling by the trial court, the parties later stipulated to a reduced award, and judgment against Whittaker was ultimately entered in the amount of approximately $2 million to decedent’s estate and $200,000 for loss of consortium. -4- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -5- No. 24 the amount of asbestos fibers in ambient air, presents a sound basis for the jury’s conclusion” (id. at 230). One Justice dissented, asserting that plaintiff had both “failed to present expert evidence specifying the level of exposure to respirable asbestos that would have been sufficient to cause peritoneal mesothelioma” and that “plaintiff’s evidence falls short of establishing that Mrs. Nemeth ‘was exposed to sufficient levels of the toxin to cause the illness’ ” (id. at 236-237 [Friedman, J., dissenting], quoting Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]). The dissent concluded that the glove box study was insufficient to establish decedent’s exposure level because it did not estimate the quantity of asbestos fibers to which the decedent would have been exposed, and that Dr. Moline’s testimony failed to provide more than “vague, conclusory and subjective terms . . . characteriz[ing] both the level of asbestos exposure sufficient to cause peritoneal mesothelioma . . . and the level of asbestos exposure to which [decedent] allegedly was subjected” (id. at 241-242). The Appellate Division granted leave to appeal to this Court. II. A court may set aside a jury verdict on the ground that it is not supported by legally sufficient evidence where “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; CPLR 4404 [a]). For the reasons that follow, we conclude that plaintiff failed to introduce sufficient evidence to support the jury’s verdict. -5- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -6- No. 24 We agree with the dissent below that plaintiff’s proof failed as a matter of law to meet our test for proving causation in toxic tort cases, and we take the opportunity to reaffirm our requirements in such cases. As we noted sixteen years ago, “[i]t is well- established that an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)” (Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]). In Parker, the toxin at issue was benzene in gasoline, the illness was acute myelogenous leukemia, and the expert testimony described plaintiff’s exposure as only “frequent[],” “excessive,” and “far more” than exposure in epidemiological studies (id. at 449-450). We acknowledged that, because there are times that “a plaintiff’s exposure to a toxin will be difficult or impossible to quantify by pinpointing an exact numerical value,” “it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community” (id. at 447-448). We noted that there may be several ways that an expert might demonstrate causation, for example by using mathematical modeling, but that any method used must be “generally accepted as reliable in the scientific community” (id. at 449). We later emphasized that Parker, despite including language to the effect that precise quantification of exposure is not always required, “by no means . . . dispensed with a plaintiff’s burden to establish sufficient exposure to a substance to cause the claimed adverse health effect” (Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762, 784 [2014]). -6- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -7- No. 24 Plaintiffs must, using expert testimony based on “generally accepted methodologies,” still establish sufficient exposure to the toxin even though “it is sometimes difficult, if not impossible,” to do so (Sean R. v BMW of N. Am., LLC, 26 NY3d 801, 812 [2016]). Throughout this line of toxic tort cases, we have repeatedly rejected as insufficient to prove causation expert testimony that exposure to a toxin is “excessive” or “far more” than others, and such testimony that merely links a toxin to a disease or “work[s] backwards from reported symptoms to divine an otherwise unknown concentration” of a toxin to prove causation (Parker, 7 NY3d at 449 [experts failed to demonstrate causation with “subjective and conclusory assertion” that plaintiff had more exposure than the workers in an epidemiological study]; Sean R., 26 NY3d at 810 [rejecting experts’ testimony that plaintiff was exposed to 1,000 ppm of gasoline vapor, a number reached by analyzing plaintiff’s symptoms]). Expert testimony, we have made clear, is to be excluded when “ ‘there is simply too great an analytical gap between the data and the opinion proffered’ ” (Cornell, 22 NY3d at 783-785, quoting Gen. Elec. Co. v Joiner, 522 US 136, 146 [1997]). More recently, we affirmed the Appellate Division’s holding that defendant was entitled to judgment notwithstanding the verdict in a case that applied these principles in the asbestos context (see Matter of New York City Asbestos Litig. [Juni], 32 NY3d 1116, 1118 [2018], affg 148 AD3d 233, 236 [1st Dept 2017] [“the fact that asbestos . . . has been linked to mesothelioma() is not enough for a determination of liability against a particular defendant; a causation expert must still establish that the plaintiff was exposed to sufficient levels of the toxin from the defendant’s products to have caused his disease”]). As was the -7- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -8- No. 24 case in Juni, plaintiff here failed to prove that exposure to asbestos in defendant’s product was a proximate cause of decedent’s illness.3 Dr. Moline provided the expert opinion that decedent’s “exposure to the contaminated talcum powder was a substantial contributing factor” in causing decedent’s peritoneal mesothelioma. The basis for that opinion, however, did not meet our requirements for establishing exposure to a toxin in an amount sufficient to cause decedent’s peritoneal mesothelioma. With respect to the level of exposure that could serve as a proximate cause of decedent’s peritoneal mesothelioma, Dr. Moline asserted that “brief or low level exposures of asbestos” could cause the disease, but that “there are some exposures to asbestos that are trivial and don’t increase a person’s risk of developing mesothelioma” and that exposure to twice the amount of asbestos in ambient air would not cause mesothelioma. She also testified that mesothelioma may develop idiopathically—that is, without a known cause.4 This testimony was plainly insufficient (see Parker, 7 NY3d at 449-450 [expert’s conclusion that plaintiff’s exposure was “frequent” or “excessive” could not be 3 Any reliance on the Appellate Division’s holding in Lustenring v AC&S Inc. (13 AD3d 69 [1st Dept 2004]) to support a theory that “working in dust laden with asbestos generated from products containing asbestos,” along with “expert testimony that dust raised from manipulating asbestos products ‘necessarily’ contains enough asbestos to cause mesothelioma,” is incorrect (Juni, 148 AD3d at 252 [Feinman, J., dissenting]; see 183 AD3d at 225-226, 229-230). Such an approach is incompatible with Parker and its progeny. 4 That Dr. Moline doubts whether “patients [were asked] the right questions about their exposure” has little bearing on evidence that mesothelioma may develop without a known cause (dissenting op at 8 n 5). -8- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -9- No. 24 characterized as a “scientific expression” of exposure level]; Matter of New York City Asbestos Litig. [DiScala], 173 AD3d 573 [1st Dept 2019]). The majority below nevertheless asserted that “Dr. Moline’s testimony did not simply ‘associate’ or ‘link’ asbestos to mesothelioma, she described it as a sentinel health event of asbestos exposure, and that virtually all cases of mesothelioma are related to asbestos exposure” (id. at 228). Yet this is no different than conclusory assertions of causation that we have held were insufficient to meet the Parker requirements (Sean R., 26 NY3d at 810; Cornell, 22 NY3d 784; Parker, 7 NY3d at 450). That standard must be met whether the toxin is mold, benzene, or asbestos (see Juni, 143 AD3d at 238). Nor did the studies or scientific literature cited or relied upon by Dr. Moline provide the necessary support for her conclusion as to proximate causation. Those studies include the “Welch article,” which identifies only an association between “low level” exposure to asbestos and peritoneal mesothelioma, and does not quantify “low level”; the “Helsinki criteria,” which found an association between “significant” asbestos exposure and pleural mesothelioma without identifying what level of exposure constitutes “significant,” and continued on to find that peritoneal mesothelioma is associated with “higher” levels of exposure; and a single case study describing an incidence of peritoneal mesothelioma without determining either the amount of exposure or a causal connection between the individual’s use of talc and his illness. Indeed, as the dissent below noted, “[c]ritically, not one of the articles Dr. Moline discussed on the witness stand . . . sets forth an estimate of the minimum level of exposure to respirable asbestos . . . that would suffice to cause peritoneal mesothelioma” (183 AD3d at 238-239, 239 n 6 [Friedman, J., dissenting]). -9- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 - 10 - No. 24 Simply put, Dr. Moline failed to provide any foundational basis for her opinion that exposure to asbestos at a level analogous to decedent’s was shown to be a substantial factor in causing mesothelioma of any kind. Her causation testimony attempted to rely on a “[c]omparison to the exposure levels of subjects of other studies” but failed to provide “a specific comparison sufficient to show how the plaintiff’s exposure level related to those of the other subjects” (Parker, 7 NY3d at 449). In addition, as we cautioned in Parker, “standards promulgated by regulatory agencies as protective measures are inadequate to demonstrate legal causation” (Parker, 7 NY3d at 450), and therefore Dr. Moline’s testimony regarding the “permissible exposure limit” to asbestos promulgated by the Occupational Safety and Health Administration (OSHA) could not be relied upon to fill this gap in proof as to the level of exposure sufficient to cause peritoneal mesothelioma. Under these circumstances, plaintiff’s proof failed to demonstrate decedent’s level of exposure to asbestos in a manner that established causation. In attempting to do so, plaintiff primarily relied on the testimony of the geologist, Fitzgerald. The dissent, plaintiff, and the majority below all characterize Fitzgerald’s glove box test as a quantification, or at least a scientific expression, of decedent’s exposure, recasting it as some sort of “breathability” study (dissenting op at 21). It was not. Fitzgerald shook a vintage sample of Desert Flower to determine the number of fibers released into a box, or as he put it, to “contain anything that’s released” and “determine . . . if that asbestos was releasable.” Fitzgerald could not offer an estimate of the amount that would be inhaled based on the test he conducted. Nor did his identification of the number of released fibers and description of those fibers as of “an inhalable size” establish causation by - 10 - FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 - 11 - No. 24 demonstrating that decedent’s exposure was comparable to similar exposures proven to be causally related to the development of mesothelioma. While a precise numerical value is not required, Fitzgerald’s test simply failed to provide any scientific expression linking decedent’s actual exposure to asbestos to a level known to cause mesothelioma. Dr. Moline purported to base her expert opinion on the results of Fitzgerald’s test, testifying that the volume of fibers released into the glove box during Fitzgerald’s simulation corresponds to those “at which multiple studies have shown elevated rates of mesothelioma.” But Dr. Moline admitted that industrial hygienists could have estimated decedent’s inhalation levels (id. at 244 n 12 [Friedman, J dissenting] [noting that “it is possible to conduct a test in an actual bathroom of the level of exposure to respirable asbestos resulting from the use of a cosmetic powder” and “Mr. Fitzgerald, however, did not conduct any such test with Desert Flower in a bathroom the size of Mrs. Nemeth’s”]). Plaintiff could have introduced such evidence, and could also have introduced evidence regarding the inhalation levels known to cause peritoneal mesothelioma, but did not do so. Because of these flaws in Fitzgerald’s test, Dr. Moline’s corresponding reliance on that test to conclude that decedent’s exposure caused her mesothelioma was likewise insufficient. 5 Although we have recognized that in any given case it may be “difficult, if not impossible, to quantify a plaintiff’s past exposure” to a toxin (Sean R., 26 NY3d at 812), our standard itself is not “impossible” for plaintiffs to meet (dissenting op at 25). We must, 5 Of course, the issue is not that Dr. Moline relied on tests other than those she performed herself (dissenting op at 22-23), but rather that the test on which she relied was itself insufficient to support Dr. Moline’s conclusion. - 11 - FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 - 12 - No. 24 as always, strike a balance between the need to exclude “unreliable or speculative information” as to causation with our obligation to ensure that we have not set “an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court” (Parker, 7 NY3d at 447). The requirement that plaintiff establish, using expert testimony based on generally accepted methodologies, sufficient exposure to a toxin to cause the claimed illness strikes the appropriate balance (see Cornell, 22 NY3d at 784). The fault here is not in our standard, but in plaintiff’s proof.6 Accordingly, the order should be reversed, with costs, and the complaint as against Whittaker, Clark & Daniels, Inc. dismissed. 6 Because we reverse on this basis, we do not address defendant’s argument regarding plaintiff’s summation. - 12 - FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 RIVERA, J. (dissenting): Florence (Flo) Nemeth died of peritoneal mesothelioma before the trial in this toxic tort action, which had been brought against several companies for their role in the manufacture, supply, distribution, and sale of products that allegedly caused her terminal -1- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -2- No. 24 cancer. Defendant Whittaker, Clark & Daniels—the only defendant that went to trial— appeals from a judgment for damages based on a jury determination that defendant supplied the asbestos-containing talc in the cosmetic powder used by Flo which, in turn, was a causative factor in her peritoneal mesothelioma. The trial evidence established the existence of asbestos in Flo’s brand of cosmetic powder, her daily use of the powder in small, unventilated bathrooms over 11 years, and that she was diagnosed decades after her exposure to the asbestos, as is common for mesothelioma patients. Plaintiff relied on epidemiological studies, case reports, and expert testimony to show that: (1) asbestos causes cancer, including the type that took Flo’s life; (2) low-level exposure to asbestos causes cancer; (3) mathematical modeling performed for this litigation measured the amount of asbestos in the cosmetic powder released into Flo’s breathable zone, determining that it was at least twice the amount found in ambient air and that it exceeded the amount permitted in schools under federal law; and (4) the asbestos in the cosmetic powder used by Flo caused her cancer. That evidence persuaded the jury on causation. The trial court and the Appellate Division agreed that the evidence was sufficient. We should do the same because plaintiff met the standard set forth in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]) and its progeny. The majority’s reversal is improperly based on the weight, not sufficiency, of this evidence. -2- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -3- No. 24 I. A. Flo and her husband Frank Nemeth filed this toxic tort action against several defendants.1 Flo passed away during the litigation and Frank continued, in his individual capacity and as executor of Flo’s estate.2 Although Flo did not live to testify in person, her deposition testimony was entered into evidence at trial. In detail, she described how, as a teenager, she began her daily routine of applying Desert Flower cosmetic power all over her body after showering. She first saw her mother use it, and she followed suit, the two of them going through a large box of this same brand of powder every two weeks. Flo explained that she used the powder puff that came in the box to apply the powder to her body, including around her neck. Her parents’ apartment bathroom was “tiny,” 5 by 6 feet, with no ventilation, windows, or fans. For approximately six years, Sunday through Monday, while living in this apartment, she applied the powder in the same way; each time, the bathroom became dusty, and she inhaled the dust. As she applied the powder, the dust fell on the sink, toilet, and floor, and Flo used a damp towel for about 5 minutes to clean up the dust. 1 I use “Flo,” rather than Florence, because that is how Frank and his attorneys referred to her throughout the trial and in the briefing to this Court. 2 The Third Amended Complaint amended the caption and added a claim for wrongful death. -3- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -4- No. 24 When she was 14, Flo met Frank. After years of dating, they married and moved into an apartment. Flo continued to apply the Desert Flower cosmetic powder daily. As in her parents’ home, she applied the powder in the bathroom, which had the same dimensions and was just as tiny as her parents’. Flo stopped using the powder when she was 25 years old, approximately 11 years after first using Desert Flower. The couple eventually moved to a house, had children and grandchildren, and Flo testified to an active life with her family—going to baseball games, visiting amusement parks, gardening, and playing with her grandchildren—until at 68 years of age, she was diagnosed with peritoneal mesothelioma, a rare and terminal cancer of the abdomen. The doctor told Flo she had six years left to live. Those years were marked by several surgeries, rounds of chemotherapy treatment, and a drug medication regimen. Flo described the physical pain and psychological effects of the cancer: “I get up in the morning, I try to do little things just to move but when I do that, I start huffing and puffing and then I wheeze. So, now I have to sit down to catch my breath, then I can get up again, do something, a little bit just to move a little bit but all day long I have to stop and sit to catch my breath.” “Every day I think [about] . . . not being around to see my grandchildren get married or my grandchildren to have children, it’s all part of life.” As her responses further reveal, the emotional toll was overwhelming: “Q. How does that make you feel emotionally knowing that they have to take care of you and you can’t take care of them? “A. Very bad, very, very depressing. There are times I cry but they don’t know it. I don’t like to let them see that I get upset, -4- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -5- No. 24 so either I go in the bathroom if they’re there and let it out and come back out. “Q. Why don’t you like to see them—let them see you get upset? “A. Because I know they’re going to be upset and I don’t want them to do that. Then I’ll come out of the bathroom and I joke around and I make them—I try to push myself to make them think I’m not going through all this pain and suffering.” B. Plaintiff’s causation evidence rested on testimony of two experts. Their credentials are not at issue on this appeal. Sean Fitzgerald, a licensed geologist and microscopist specializing in asbestos,3 tested a sample of Desert Flower from the period when Flo used the product. He explained that the experimental design was based upon an earlier, peer- reviewed study that he had co-authored and which he described to the jury.4 In accordance with this design, Mr. Fitzgerald constructed a “glove box,” a clear box constructed of Plexiglass with two gloves built in, allowing him to manipulate the talcum powder in a sealed environment. Mr. Fitzgerald and defendant’s expert both noted that the use of a glove box for this testing purpose had been approved by the federal Environmental Protection Agency. Inside the box were pumps, one positioned under Mr. Fitzgerald’s nose 3 At the time of the trial, Fitzgerald had been working as a professional geologist for approximately 30 years. He had worked in several laboratories—including the McCrone Institute, a well-known microscopy laboratory—and had training in industrial hygiene and public health. Fitzgerald also served on asbestos-related committees operated by ASTM International, a private standards-setting organization whose standards are used worldwide. He also served as a peer reviewer for a third-party update to the Environmental Protection Agency’s Purple Book, which contains up-to-date research on asbestos. 4 See Ronald E. Gordon et al., Asbestos in Commercial Cosmetic Talcum Powder as a Cause of Mesothelioma in Women, 20 Intl J Occupational & Envtl Health 318 (2014). -5- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -6- No. 24 to simulate asbestos release in the breathing zone relative to the hands in the gloves. He aerosolized the talcum powder by pouring it onto his gloved hand. Then, he allowed the pumps to run for 15 minutes while his hands were in the glove box. The pump closest to Mr. Fitzgerald’s nose ran at a volume of two liters per minute, half of the average respiratory rate. Mr. Fitzgerald placed the other filters farther back in the glove box and ran the pumps attached to those filters at a higher volume to simulate powder spreading towards the back of a room. Mr. Fitzgerald also placed a clean wipe in the back of the glove box as a “dust fall” monitor to measure the amount of powder collected there and determine what would happen should the powder be re-aerosolized. Mr. Fitzgerald determined that the asbestos contained in Desert Flower “was significantly releasable,” at a level “thousands of times” higher than would be acceptable in a school under the federal Asbestos Hazard Emergency Response Act (15 USC § 2641 et seq. [AHERA]), using AHERA’s definitions and protocols for measurement. He further estimated that “millions of fibers [were] initially released into the chambers” and opined that the fibers would have been of an inhalable size. In response to a series of counsel’s hypotheticals, Mr. Fitzgerald opined—based on his experience and education, and the test results and Flo’s description of her daily use of the cosmetic powder in the confines of her tiny bathroom—that had Flo used Desert Flower every day, she would have been exposed to inhalable asbestos in measures above those acceptable under the AHERA standards. The final hypothetical and response is particularly significant: -6- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -7- No. 24 “Q. With those facts that I asked you to assume in mind [i.e., facts pertaining to Flo’s long-term use of Desert Flower and the geologic source of the talc], do you have an opinion that— And I would like you to further assume within those facts that Flo Nemeth testified that she breathed this dust every time she used the product. With those facts in mind, do you have an opinion within a reasonable degree of geological and scientific certainty about whether the talc from those mines that was used in Desert Flower was consistently contaminated with releasable asbestos? “. . . “A. I do. And my opinion to a reasonable degree of scientific and geological certainty is that that product contained releasable asbestos fibers including tremolite, anthophyllite and occasionally chrysotile asbestos based on my research of the geology and the mineralogy of the actual source talcs that you’ve asked me to assume were constituents supplied to Shulton through Whittaker, Clark, Daniels.” During cross-examination, Mr. Fitzgerald conceded that it is difficult to count asbestos in talc, that microscopy involves a degree of subjective interpretation, and that his testing was an approximation in that he did not conduct testing in a bathroom-sized space. Defendant’s geologist witness criticized Mr. Fitzgerald for not using a bathroom-sized simulation but admitted that the glove-box is a less expensive method for counting asbestos than a space the size of a bathroom. Plaintiff’s expert, Dr. Jacqueline Moline,5 testified that asbestos causes peritoneal mesothelioma and that, based on Flo’s testimony and Mr. Fitzgerald’s results, defendant’s 5 Dr. Moline earned her M.D. at the University of Chicago-Pritzker School of Medicine and a Master of Science in Community Medicine (equivalent to a Master of Public Health) from the Mount Sinai School of Medicine in New York. Dr. Moline completed her internal medicine residency at Yale and then completed a fellowship in occupational medicine with a team of asbestos experts at Mount Sinai Medical Center, where she then worked for -7- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -8- No. 24 asbestos-containing talc was a significant factor in Flo’s terminal cancer. Specifically, Dr. Moline explained that asbestos is “associated with four cancers,” including mesothelioma, and that peritoneal mesothelioma is rare, with approximately 350 cases per year. She further testified that “[v]irtually all cases of mesothelioma are related to asbestos exposure,” and that mesothelioma is considered a “Sentinel Health Event,” and that a peritoneal mesothelioma mass is a “signal tumor,” meaning that development of that illness and the tumor implies asbestos exposure.6 As to adverse health impact exposure levels, Dr. Moline testified that “brief or low level exposures of asbestos can cause mesothelioma.” She described a study that “found that even slight exposure to asbestos was associated with around 19 years. She also served as the Director of the National Institute for Occupational Safety and Health (NIOSH) New York/New Jersey Education and Research Center, a consortium of educational institutions that provides interdisciplinary training in occupational health and safety. At the time of trial, Dr. Moline served as the Chair of the Department of Occupational Medicine, Epidemiology and Prevention at Northwell Health. 6 According to the majority, Dr. Moline “testified that mesothelioma may develop idiopathically—that is, without a known cause” (majority op at 8). To the contrary, Dr. Moline made clear that she disagreed with the defendant’s expert’s opinion that most cases of mesothelioma are “spontaneous” and occur as a result of age and genetics, rather than asbestos exposure. Dr. Moline opined, based on her knowledge of epidemiological methodologies, that “most allegedly” “idiopathic” cases of mesothelioma involved prior exposures to asbestos that researchers had not identified due to poor study design. She also explained that many of her colleagues who treat mesothelioma would only know to ask about particular exposure scenarios based on what had been reported in the literature. For example, she explained that until recently many doctors had not known of the link between cosmetic talc and asbestos, and failed to ask patients—particularly women—about their use of beauty products containing talc. Thus, according to Dr. Moline, in those cases doctors would have wrongly reported their patients’ mesotheliomas as “idiopathic,” when in reality, they had failed to perceive the cause. The majority’s assertion that asking the right questions “has little bearing on evidence that mesothelioma may develop without a known cause” (id. at 8 n 4) misses the mark. The right questions, in Dr. Moline’s opinion, could uncover known unknowns, and that opinion had bearing on the core debate between the parties’ experts. -8- FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 03/03/2023 -9- No. 24 an increased risk over six fold of developing mesothelioma in th[e study] group” (the Welch study).7 Further, the 0.1 fiber per cubic centimeter of air Permissible Exposure Limit (PEL) for asbestos set by the federal Occupational Safety and Health Administration (OSHA) “shows that very low levels of asbestos exposure can cause disease.” According to Dr. Moline, the medical literature describes increased mesothelioma rates even at low levels of asbestos exposure. She also referred to epidemiological studies and public health literature linking talc with asbestos and describing asbestos as a cause of mesothelioma,8 as well as various mortality studies.9 Dr. Moline discussed the Helsinki Criteria,10 which explain that “low levels of exposure are attributed to mesothelioma.” The criteria were originally developed in 1997 7 See Laura S. Welch et al., Asbestos and Peritoneal Mesothelioma Among College- Educated Men, 11 Intl J Occupational & Envtl Health 254 (2005). 8 See Victor L. Roggli et al., Tremolite and Mesothelioma, 46 Annals Occupational Hygiene 447 (2002); Sharon H. Srebro & Victor L. Roggli, Asbestos-Related Disease Associated With Exposure to Asbestiform Tremolite, 26 Am J Indus Med 809 (1994); L. Paoletti et al., Evaluation by Electron Microscopy Techniques of Asbestos Contamination in Industrial, Cosmetic, and Pharmaceutical Talcs, 4 Regul Toxicology & Pharmacology 222 (1984); L. Longo & R.C. Young, Cosmetic Talc and Ovarian Cancer, 314 Lancet 349 (1979); A.N. Rohl et al., Consumer Talcums and Powders: Mineral and Chemical Characterization, 2 J Toxicology & Envtl Health 255 (1976). 9 See Alberto Andrion et al., Malignant Peritoneal Mesothelioma in a 17-Year-Old Boy With Evidence of Previous Exposure to Chrysotile and Tremolite Asbestos, 25 Hum Pathology 617 (1994); J. Gamble et al., An Epidemiological-Industrial Hygiene Study of Talc Workers, 26 Annals Occupational Hygiene 841 (1982). 10 See Consensus Report, Asbestos, Asbestosis, and Cancer, the Helsinki Criteria for Diagnosis and Attribution 2014: Recommendations, 41 Scandinavian J Work Envt & Health 5 (Henrik Wolff et al. reporters 2015) (hereinafter “Helsinki II”); Consensus Report, -9- FILED: ERIE COUNTY CLER