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SUPREME COURT OF THE STATE OF NEW YORK
EIGHTH JUDICIAL DISTRICT
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IN RE: EIGHTH JUDICIAL DISTRICT
ASBESTOS LITIGATION
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PATSY YOUNG, Index No. 815818/2020
Plaintiff,
-against-
AVENTIS, INC., et al.,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT WHITTAKER CLARK & DANIELS, INC.’S
MOTION FOR SUMMARY JUDGMENT
LANDMAN CORSI BALLAINE & FORD P.C.
One Gateway Center, 4th Floor
Newark, New Jersey 07102
T: (973) 623-2700
- and -
120 Broadway
New York, New York 10271
T: (212) 238-4800
E: ckozak@lcbf.com
Attorneys for Defendant
Whittaker Clark & Daniels, Inc.
On the Brief
Christopher S. Kozak, Esq.
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PRELIMINARY STATEMENT
Defendant Whittaker Clark & Daniels, Inc. (“WCD”), by its undersigned counsel, pursuant
to CPLR § 3212, respectfully moves for summary judgment on all claims against it because the
evidence proves that the plaintiff, Patsy Young (“Young”) did not come in contact with a talc
distributed by WCD that contained “asbestos.” Additionally, the evidence demonstrates that
cosmetic talcum powder does not cause mesothelioma and that inhalation of cosmetic talcum,
comparable to (or greater than) the amount of use claimed by Young, proves that Young was not
“exposed” to levels of “asbestos” sufficient to cause her illness.
Young claims that she developed mesothelioma from her mother and her personal use of
Avon’s Skin So Soft talcum powder, Topaz talcum powder, and Charisma talcum powder
(hereinafter, “Avon’s talcum powders”), and her ex-husband, her sons, and her personal use of
Gold Bond medicated powder (collectively, the products “at issue” relative to WCD).
Additionally, Young claims that she developed mesothelioma from her mother, her siblings, and
her personal use of Cashmere Bouquet talcum powder and Caldesene talcum powder, and Johnson
& Johnson’s Baby Powder.
NOT A DISTRIBUTOR FOR J&J, CALDESENE, AND COLGATE’S
CASHMERE BOUQUET: Significantly, WCD did not distribute talc for use in Johnson &
Johnson’s Baby Powder, Caldesene talcum powder, or Cashmere Bouquet. Thus, WCD is
entitled to partial summary judgment as to any claims related to Young’s alleged use of
Johnson & Johnson’s Baby Powder, Caldesene talcum powder, and Cashmere Bouquet.
DISTRIBUTOR SPECULATION AS TO AVON AND GOLD BOND: Plaintiff
further claims that Avon’s talcum powders and Gold Bond medicated powder (hereinafter
“these products” or the products “at issue” relative to WCD) may have contained talc supplied
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by WCD. 1 With respect to Avon and Gold Bond, Block Drug, Stephan Company, Chattem, Inc.,
and Pharma Tech (subsequent manufacturers of Gold Bond), the evidence shows that while WCD
was one of several talc suppliers whose talc was approved for use to make these products, none of
the manufacturers have batch evidence to determine which suppliers’ talc was used to make their
products at any given time. Thus, it will require a jury to speculate as to the final batch
formulations in order to hold WCD accountable for the talc used in these claimed products.
Accordingly, WCD is entitled to summary judgment as to these products.
CONTENT PROOFS: Moreover, even if the Court ignores the source of the talcs used
in the products Plaintiff is attempting to attribute to WCD, the evidence affirmatively shows that
these product formulations did not specify the use of “asbestos.” Indeed, there is no dispute that
“asbestos” was not an ingredient in the formulation of any product at issue here. Rather, Plaintiff
asserts that some or all of Young’s containers were somehow contaminated with trace amounts of
undetectable “asbestos.” There is, however, no direct evidence of contamination in these products,
i.e., there are no containers of products that Plaintiff claims Young possessed which have been
tested for “asbestos” presence. And, even if WCD’s talc arguably was an ingredient in these
products, WCD’s talc always was tested by 3rd party Labs before sale to these manufacturers and
found to not have had detectable levels of asbestos, and thus, there was evidence of “asbestos”
content at the times sold. As such, WCD is entitled to summary judgment.
1
The precise formulas for these specific products during the years in question are not known.
While WCD did have talc sales to Gold Bond, Block Drug, Stephan Company, Chattem, Inc., and
Pharma Tech (Gold Bond) and Avon during certain times, there is no evidence of which supplier’s
talc and which grade of talc was used in the final batch formulations for Avon’s talcum powders
and Gold Bond medicated powder at any particular time. (See Affirmation of Christopher S.
Kozak dated March 3, 2023). Thus, at best, WCD was “a” talc supplier, but cannot be “the”
supplier of talc for any product here.
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GENERAL CAUSATION EVIDENCE AT THE TIME: Notwithstanding the fact that
these products would require source speculation (i.e., the distributor identification claim fails) and
that the “contents evidence” proves that WCD-distributed talc to these manufacturers was tested
at the time and did not contain detectable “asbestos” (i.e., the content claim fails), the scientific
evidence demonstrates that consumer use of cosmetic talc does not increase a person’s risk of
developing malignant mesothelioma (i.e., the general causation claim fails).
SPECIFIC CAUSATION EVIDENCE (NEMETH FACTORS): Even ignoring
whether cosmetic talc is capable of causing malignant mesothelioma, the evidence further shows
that Young’s alleged use of these products did not result in a level of “asbestos” “exposure”
sufficient to cause her mesothelioma (i.e., the specific causation claim fails).
Thus, based on any of the above evidence (distributor speculation, content proofs, general
causation, or specific causation), the Court must grant summary judgment in favor of WCD and
dismiss Plaintiff’s claims against it.
STATEMENT OF FACTS
I. PLAINTIFF’S COSMETIC TALC DESCRIPTION
Plaintiff filed suit against fourteen defendants, including WCD, alleging Young developed
mesothelioma form her alleged use of defendants’ products claimed to contain asbestos.. (See
Exh. A, Plaintiffs’ Complaint).2 WCD’s Verified Answer is attached as Exh. B. Plaintiff alleges
that some or all of the talcum products Madsen and her parents used were contaminated with a
trace amount of undetectable “asbestos.” (See generally Exh. C, Plaintiff’s Answers to
Interrogatories). Plaintiff testified that she did not recall seeing any warnings on the containers of
2
References to “Exh. ___” refer to those materials attached as Exhibits to the Affirmation of
Christopher S. Kozak, dated March 3, 2023.
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the Avon’s talcum powders or Gold Bond medicated powder and denied reading the full list of
ingredients on the products. (See Exh. C and Exh. D, Plaintiff’s Discovery Deposition at 521:19-
21; 492:8-10; 496:14-16; 499:17-19). Additionally, she was never advised by any doctor that her
mesothelioma was caused by her alleged use of talcum powder products or that she was “exposed”
to asbestos from any cosmetic products. (See Exh. D, at 510:25; 511:1-3; 554:7-11; 569:4-13).
II. DISTRIBUTOR SPECULATION - PLAINTIFF’S CLAIMED USE OF PRODUCTS
SHE ATTRIBUTES TO WCD
First, plaintiff claims she was exposed to Johnson & Johnson’s Baby powder, Caldesene
talcum powder, and Colgate’s Cashmere Bouquet. Notably, WCD was not a supplier of talc to
Johnson & Johnson nor Prestige Consumer Healthcare (Caldesene) at any time. Additionally,
WCD was not a supplier of talc to Colgate for Cashmere Bouquet.
Plaintiff testified that she personally used Avon’s talcum powders from 1975-89. (See
Exh. D, at 487:15-18; 510:13-16). Plaintiff testified that her ex-husband and then ex-boyfriend
used Gold Bond in her presence from 1979-81 and 1981-2000, respectively. (See Exh. D, at
516:16-21; 529:12-14). She also testified that she and her sons used Gold Bond from 2006-09.
(See Exh. D, at 537:16-18; 543:3-9; 548:16-20).
During Young’s alleged period of use (1975-89), WCD sold talc and other minerals and
pigments to Avon, including Talc Grades 1, 141, 1615, 1621, 1623, 2450, 2755, and 3300. (Exh.
E, WCD Sales to Avon). During Plaintiff’s alleged period of use, Gold Bond medicated powder
was owned by Gold Bond until 1987, when it was acquired by Block Drug, and then Martin
Himmel, Inc. in 1990. In 1996, Gold Bond was sold to Chattem, Inc. WCD did not have sales to
Martin Himmel, Inc. during Plaintiff’s alleged period of use. However, WCD distributed limited
talc and other minerals and pigments to Gold Bond from 1979 through 1981, including Talc Grade
1615, Block Drug in 1987, including Talc Grade 127, Stephan Co. from 1990 through 1996,
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including Talc Grades 1745, 3355, and 6030, Chattem, Inc. from 1996 through 1998, including
Talc Grades 141, 1745, and 6030, and Pharma Tech, a contract manufacturer for Chattem, Inc.,
from 1996 through 2001, including Talc Grades 1745, 3441, 5215, and 6030. (Exh. F, WCD Sales
to Gold Bond, Exh. G, WCD Sales to Block Drug and Stephan Co., Exh. H, WCD Sales to
Chattem, Inc., and Pharma Tech).
It remains unclear which supplier(s)’talc was actually used in the final batch formulations
of Avon’s talcum powders and Gold Bond medicated powder sold to consumers during the years
claimed. In fact, there is no final batch formula for the products at issue that lists WCD as the
exclusive supplier of the talc used in those product formulations during the years in question.
III. CONTENT PROOFS
Even if WCD talc was used in the formulations of the products Plaintiff is attributing to WCD,
there is no dispute that these products were not formulated to contain “asbestos.” And, the regions
from which this WCD talc was sourced, including Val Chisone, Italy; Murphy, North Carolina;
Southwest Montana; and Alpine, Alabama were known to be “asbestos-free.” (Exh. I, Affidavit
by Alan M. Segrave, P.G., p. 4-9). Moreover, regardless of the mines from which WCD talc was
sourced, WCD has supplied affirmative evidence that the above grades of talc were tested before
WCD distributed talc to its customers. (Id.). Those results show that at the times relevant to WCD’s
distribution of these grades of talc, its knowledge was that its talc did not contain detectable
“asbestos” fibers. (See below)
IV. COSMETIC TALC DOES NOT CAUSE MESOTHELIOMA
Epidemiology is the study of disease in certain populations of people. The epidemiology
related to talc use and exposure shows that it does not cause or increase the risk of developing
mesothelioma. (Exh. J, Affidavit by Kenneth A. Mundt, Ph.D. F.A.C.E.). At the outset, generally,
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there are no epidemiological studies of consumers who have used cosmetic talcum products.3 (Id.
at 27). However, there are numerous epidemiological studies of miners and millers, occupationally
exposed to cosmetic talc. Intuitively, the opportunity for exposure to dust from consumer-use
talcum is far less (in terms of exposure intensity, frequency, and duration) than occupational
exposures to talc dust experienced by miners and millers. Numerous studies of cosmetic talc
miners and millers prove there have been no reports of an increased incidence of mesothelioma.
(Id. at 27). These studies show no cases of mesothelioma:
Rubino, et al., Mortality Studies of Talc Miners and Millers, 18 J. Occup. Med. 186
(1976) – A study of 1,514 miners and 478 millers who worked at least one year
between 1921 and 1950 in the Val Chisone mines revealed no cases of
mesothelioma. (Exh. K).
Rubino, et al., Mortality & Morbidity Among Talc Miners and Millers in Italy, in
Dusts and Disease (1979) – An update of the 1976 study again found no cases of
mesothelioma in the miners and millers and concluded that “no relationship has
been found between Italian talc exposure and cancer.” (Exh. L).
Wild, et al., A Cohort Mortality And Nested Case-Control Study of French and
Austrian Talc Workers, Occup. Environ. Med. 59-98-105 (2002) – A study of the
mortality from non-malignant and malignant respiratory diseases of workers
employed in French and Austrian talc mines and mills found no observable dose-
response for cancer. (Exh. M).
Coggiola, et al., An Update of a Mortality Study of Talc Miners and Millers in Italy,
44 Am. J. Indust. Med. 63 (2003) – A study of 1,795 miners and millers who
worked at least one year in the Val Chisone mines and/or factory between 1946 and
1995 revealed no cases of mesothelioma. (Exh. N).
Pira, et al., Mortality of Talc Miners and Millers from Val Chisone, Northern Italy:
An Updated Cohort Study, J. Occup. & Environ. Med. 59:659-64 (2017) – An
updated study again found no deaths among the miners and millers from
mesothelioma. (Exh. O).
3
In fact, Plaintiff’s expert, Dr. Jacqueline Moline, has admitted there are no peer-reviewed
epidemiological studies indicating that consumers of cosmetic talcum powder have an increased
risk of developing mesothelioma. (See Exh. PP, Dr. Moline October 16, 2014 deposition
transcript at 111:7-16).
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These above studies indicate that while heavy exposure to similar source talcs alleged in
this case increased the risks of nonmalignant respiratory diseases, including pneumoconiosis and
a disease called talcosis, they have not caused or increased the risk of developing mesothelioma in
those workers. (Exh. I, at 26). It is important to note that a substantial proportion of mesotheliomas
arise spontaneously, with no known exposures to “asbestos” or other risk factors. (Id. at 16). There
can be no doubt that the causation link between talc and pleural mesothelioma does not exist in
this case.
V. INHALATION OF COSMETIC TALC COMPARABLE TO OR GREATER THAN
YOUNG’S DESCRIPTION PROVES THAT TALC DID NOT CAUSE HER
MESOTHELIOMA
There is substantial evidence that normal use of cosmetic talc products does not increase
the risk of an asbestos-related malignancy. (Exh. P, February 28, 2023, Report of Christy A.
Barlow, Ph.D.). As outlined in Dr. Barlow’s Report, the FDA and numerous scientists have found
that consumer use of cosmetic talc is safe and does not increase a person’s risk of developing
pleural mesothelioma:
2/27/1976 – FDA Memorandum by Heinz Eiermann, Director, Div. of Cosmetics
Technology, p.2 – “Questions Concerning Toxicity of Talc,” noting that there was,
at that time, no scientific data demonstrating adverse effects from inhalation of talc.
Also, a two-year inhalation study in hamsters showed no adverse effects from
inhalation of exaggerated dose levels. (Exh. Q)
6/6/1985 – U.S. Dep’t of Health & Human Services, Qualitative Risk Assessment
Committee (QRAC), “Asbestos in Talc” – In a study assuming a minor amount of
asbestos content in consumer talcum, used for 43.8 minutes a week for fifty-two
weeks, governmental scientists concluded that the exposure estimate for asbestos
would be less than environmental background levels over a lifetime. (Exh. R).
1986 – FDA Letter by J.W. Swanson, Acting Associate Commissioner for
Regulatory Affairs, FDA – Stating that FDA scientists reviewed the QRAC
findings and likewise concluded that “the risk from a worst-case estimate of
exposure to asbestos from cosmetic talc would be less than the risk from
environmental background levels of exposure to asbestos (non-occupational
exposure) over a lifetime.” (Exh. S).
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1987 – World Health Organization, International Agency for Research on Cancer,
The Monographs – Talc, pp.185-224 – Reviewing all biological data and scientific
studies relevant to the carcinogenic risk in humans, the Agency concluded that there
is “inadequate evidence for the carcinogenicity of talc to experimental animals.
[And, t]here is inadequate evidence for the carcinogenicity to humans of talc not
containing asbestiform fibres [sic]. . .” p.214. (Exh. T).
2/10/1994 – U.S. Dep’t of Health & Human Services, “Report on Talc Workshop”
– Reporting that the results of a two-year rodent study by the National Toxicology
Program revealed no human health hazard from the inhalation of talc in consumer
products. (Exh. U).
2010 – IARC World Health Organization, International Agency for Research on
Cancer, The Monographs – Talc, pp.277-413 – Concluding again that, “[t]here is
inadequate evidence in humans for the carcinogenicity of inhaled talc not
containing asbestos or asbestiform fibers.” p.412 (Exh. V).
Putting the above into context, WCD presents affirmative evidence through Dr. Barlow that
there are cumulative “asbestos” thresholds below which there is no risk or negligible risk of developing
mesothelioma. (See Exh. P at pp. 26-27). Scientists have examined and evaluated cohorts of exposed
individuals in their homes, neighborhoods, and occupations. (Id.). Dr. Barlow explained that the
chrysotile “no-observed adverse effect level” (NOAEL), i.e., threshold, for mesothelioma ranges from
208-415 f/cc-yrs and the tremolite NOAEL ranges from 0.5 – 2.6 f/cc-yrs. (Id.). Additionally,
peritoneal mesothelioma is associated with heavier asbestos exposures than pleural mesothelioma. (Id.
at 28).
Even assuming there was a trace level of asbestiform minerals in the products that Plaintiff
claims Young used, an under a “worst-case assumption,” “any associated asbestos exposure
potential would have been well within (or below) the corresponding cumulative background or
ambient levels of asbestos found in the air in the U.S., and below the cumulative asbestos exposure
potential associated with working at the current OSHA PEL for asbestos over 45 years.” (Exh. P
at p.28). Dr. Barlow found that Young’s total dose from cosmetic talcum powder products use (if one
accepts Young’s talcum use claim) would only have resulted in an exposure of .00002 - .003 f/cc-yrs.
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(See Exh. P at p.25). The evidence shows Young’s alleged talcum powder use, even if asbestos-
containing, would not rise above the chrysotile or tremolite NOAEL thresholds for mesothelioma. (Id.
at 26-27).
ARGUMENT
Under New York law, a defendant in an asbestos-related bodily injury action is entitled to
summary judgment in the absence of proof that the plaintiff was exposed to asbestos from that
defendant's products. See Cawein v. Flintkote Co., 203 AD2d 105, 106 [1st Dept 1994] (noting
that to defeat summary judgment in an asbestos bodily injury action, “it must be shown that
plaintiff was exposed to asbestos fibers released from the moving defendant's products”).
Once a party seeking summary judgment has established a prima facie basis for relief
through supporting Affidavits and Exhibits, the burden shifts to the party opposing summary
judgment to demonstrate the need for a Trial. See Zuckerman v. City of N Y, 49 NY2d 557, 560
[1980] (“where the moving party has demonstrated its entitlement to summary judgment, the party
opposing the motion must demonstrate by admissible evidence the existence of a factual issue
requiring a trial of the action”). Moreover, summary judgment must be granted unless the
opposing party demonstrates a genuine, triable issue of fact. See Barilla v. Meredith Corp., 224
AD2d 992 [4th Dept 1996]; Roberts-Gordon Appliance Corp. v. M Parisi & Son Constr., 96 AD2d
719 [4th Dept 1983]. The required demonstration of the existence of a genuine, triable issue of
fact must be made in a non-conclusory, admissible manner. See Barilla, 224 AD2d at 992;
Zawadzki v. Knight, 155 AD2d 870 [4th Dept 1989], affd, 76 NY2d 898.
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I. “DISTRIBUTOR SPECULATION” -- EVIDENCE DEMONSTRATES IT WOULD
REQUIRE SPECULATION TO SAY THAT WCD’S TALC WAS USED IN THE
PRODUCTS “AT ISSUE”
Although WCD distributed talc to defendant manufacturers at various times, the evidence
shows that it would be impossible to prove that WCD’s talc was actually used in the final batch
formulations of the products alleged to be attributable to WCD. The evidence presented in this
matter, even examined in a light most favorable to Plaintiffs, is insufficient to overcome WCD’s
Motion for Summary Judgment. See Bevens v. Tarrant Manufacturing Co., 87 NY2d 596, 601
[3rd Dept 2008]. In order to be successful on a Motion for Summary Judgment in a products
liability case, the plaintiff must establish that it was the defendant’s product that caused injury
and that the evidence of the defendant’s identity was not conjecture, speculation, or balanced
between other defendants. See Healy v. Firestone Tire & Rubber Co., 87 NY2d 596, 601-02
[1996] (“The circumstantial evidence of the identity of the manufacturer of the defective
product causing personal injury must establish that it is reasonably probable, not merely
possible or even balanced, that the defendant was the source of the offending product …
Speculative or conjectural evidence of the manufacturer’s identity is not enough.”). When a
plaintiff brings a claim against multiple suppliers for the same product or fails to identify
the supplier of the ingredients in the product, as is the case here, it would be impermissibly
speculative to find that WCD’s talc was the cause of Plaintiff’s cancer. See D’Amico v.
Manufacturers Hanover Trust Company, 173 AD2nd 263 [1st Dept, 1991].
In Shields v. American Biltrite, Inc., et al., Index 2016-3854 [N.Y. Sup. Ct. Cty. Monroe
March, 30, 2017] (unreported), the Supreme Court granted defendant Union Carbide’s motion for
summary judgment, as Union Carbide was one of multiple distributors of asbestos for the tiles
used by the plaintiff, and it would be impossible to “definitively ascertain” whether the plaintiff
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was ever exposed to asbestos supplied by Union Carbide. (Exh. W). The Court explained that,
“although a factual issue may be present in an action, if its very nature precludes the possibility of
its ultimate resolution, the entire exercise is futile, and summary judgment must issue to a moving
defendant.” Id. at *4; see also Healy, 87 NY2d at 601-02 (“The circumstantial evidence of the
identity of the manufacturer of the defective product causing personal injury must establish that
it is reasonably probable, not merely possible or even balanced, that the defendant was the
source of the offending product . . . Speculative or conjectural evidence of the manufacturer’s
identity is not enough”).
In order for Plaintiffs to have a triable claim against WCD, there must be evidence
demonstrating that WCD’s talc and not someone else’s talc was used as an ingredient in the
products at issue during the time that Plaintiff claims Young used or was around them. Here,
summary judgment is appropriate. The evidence shows that it would not be possible to
determine which grade of talc was used in these products during the times alleged. Without
such information, it will be impossible to determine whose talc was used in any particular
container of these products. Instead, Plaintiff simply claims, without evidential support, that
WCD could have supplied talc that was used as an ingredient in these products. Here, summary
judgment is required because Plaintiff’s claims against WCD are based on mere speculation and
conjecture, and no dispute of material fact exists. See Healy, 87 NY2d at 601.
II. WHEN WCD DISTRIBUTED TALC, IT DID NOT CONTAIN “ASBESTOS”
Plaintiff’s claims against WCD require her to prove that she came into contact with
talcum products that actually contained “asbestos.” See Karr v. Inecto, Inc., 247 NY 360, 364-
65 [1928] (“We are asked to draw the inference that the ‘chemical poison or irritant’ which it
is said caused injury to the plaintiff was contained in the ‘chemical product’ of the defendant
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merely because the injury occurred on the finger which was stained by the dye twelve hours
before, though the possibility of other causes is not excluded and though there is no direct
evidence that the 'chemical product' contained any chemical poison or irritant . . . We do not
find that the evidence sustains such inferences”) (emphasis added); Place v. Fed. Pac. Elec.
Co., Nos. 18330/88, 591095/93, 1996 WL 34571261 at *6 [NY Sup Ct Sept. 16, 1996]
(“Obviously, there was no direct evidence from which a jury could rationally find that the switch
was defective. In the absence of such direct evidence, it was incumbent upon plaintiffs to
exclude all causes not attributable to [Defendant]”); Jerry v. Borden Co., 358 NYS2d 426, 431
[2d Dept 1974] (“The party injured cannot rely on the fact of the injury after use of the cosmetics
under the circumstances involved . . . the product must be shown to have been defective . . .”);
In re New York City Asbestos Litig., 216 AD2d 79, 80 [1st Dept 1995] (summary judgment
appropriate where plaintiff failed to prove that defendant was exposed to products containing
asbestos fibers).
Here, summary judgment is appropriate because WCD has submitted affirmative
evidence that its sources of mined talc were asbestos-free and/or not from areas with known
growths of asbestiform minerals. (See Exh. I, Segrave Affidavit). Indeed, the mine sources were
asbestiform-free and, to be sure, the milled talc WCD received was tested by 3rd party Labs who
repeatedly found no detectable “asbestos.” (Id.).
Plaintiff has no competing evidence of the milled talc before it was used in any of the
defendant manufacturers’ products. And, in light of the lack of formula or batch evidence putting
a WCD-distributed talc into a finished consumer product, it would be speculative to attribute
against WCD any testing of a finished cosmetic product.
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Additionally, even if WCD’s talc could have been used in some but not all of Avon or
Gold Bond products, many courts have held that a plaintiff cannot demonstrate that he/she was
exposed to asbestos from a defendant's product based on evidence that some, but not all,
containers of the product contained asbestos. See, e.g., Exh. X Collin v. Calportland Co., 228
Cal App 4th 582, 586, 592-93, 595-97 [2014] (affirming summary judgment for defendant where
defendant had made asbestos-containing joint compound for sixteen years, and non-asbestos
containing joint compound for two years, and the plaintiff claimed exposure to dust from joint
compound during that entire period, because it was too speculative for a reasonable jury to
conclude that the plaintiff was exposed to the asbestos-containing variant of the product); Exh.
Y, Wagner v. Bondex Int'l Inc., 368 SW3d 340, 351-52 [Mo Ct App 2012] (entering directed
verdict for defendant where “[p]laintiffs' evidence ... amount[ed] to nothing more than that
[defendant] made ceiling tile, some of which contained asbestos and some of which did not” and
thus any verdict finding that plaintiff was “even exposed to asbestos by” defendant would be
“speculative, at best”); Exh. Z, Lindstrom v. A-C Product Liability Trust, 424 F3d 488, 498 [6th
Cir 2005] (finding no triable issue of fact where the defendant manufactured asbestos-containing
as well as non-asbestos-containing products and the plaintiff's witnesses “could not tell whether
any material [made by the defendant and] handled by [the plaintiff] contained asbestos”); Exh.
AA, Chapp v. Borg-Warner Morse Tec LLC, 15-cv-5887 [Wi Cir Ct Apr. 4, 2018] (granting
summary judgment when the proofs were insufficient to establish that the specific product used
by plaintiff’s wife was, in fact, contaminated, as there were no samples of the product the
plaintiff’s wife actually used available for testing and no samples of the product from the relevant
period, identical to that used by his wife, available for testing); and Exh. BB, Berg v. Alta Building
Material Co. RG17849298 [Cal Sup Ct Mar. 16, 2018] (finding no evidence without speculating
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that plaintiff was exposed to asbestos through defendant’s product even when accepting’s
plaintiff’s evidence as true and accepting plaintiff’s expert’s findings). Relying on such evidence
would render it “mere[ ] speculation” that a particular plaintiff was exposed to an asbestos-
containing version of a defendant's product, as opposed to an asbestos-free version of that product.
See Williams v. A.C.&S., Inc., et al., No. 107181/2001, 2010 WL 9937753 at *2 [NY Sup Ct June
25, 2010] (unreported) (granting summary judgment where plaintiff offered only “mere
speculation” that “the Good year sheet gasket material to which plaintiff was exposed contained
asbestos” where only a portion of gaskets were manufactured as asbestos-containing).
Further still, in Hanson v. Colgate-Palmolive Co., the Court granted a talcum
manufacturer’s motion for summary judgment finding:
First, it is undisputed that asbestos is not an intended ingredient of Cashmere
Bouquet.
Second, a review of the record shows that no study, test, or expert can opine as to
whether the Cashmere Bouquet to which [plaintiff] was exposed contains asbestos.
Third, if [plaintiff]’s Cashmere Bouquet did contain asbestos, it is undisputed that
no study, test, or expert can opine as to the quantity of asbestos contained in
[plaintiff]’s Cashmere Bouquet.
See Exh. CC, Hanson v. Colgate-Palmolive Co., No. CV 216-034 at 3 [SD Ga Sept 28, 2018].
As the above decisions recognize, it is well-settled that a plaintiff cannot avoid
summary judgment with evidence that renders it merely “possible” that he was exposed to
“asbestos” from the defendant’s product. Casey v. Perini Corp. 206 Cal. App. 4th 1222
[2012]. And, where a plaintiff could at most prove that some (but not all) of a product
contained “asbestos,” it would require speculation for a jury to conclude that the plaintiff
personally used an asbestos-containing, rather than a non-asbestos containing, version of the
product. Collin, 228 Cal App 4th 582.
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Here, summary judgment is warranted because Plaintiff’s claims against WCD are based
on mere speculation and conjecture, and no dispute of material fact exists. See Healy, 87 NY2d
at 601. Plaintiff alleges that products at issue could have contained trace amounts of undetected
“asbestos,” despite having no direct evidence from any container Young could have used. The
evidence does not support that the content of a WCD-distributed talc contained “asbestos,” and
that it knew or should have known that it contained “asbestos” at the times relevant to this
matter. As such, Plaintiff’s claims against WCD must be dismissed.
III. THE EVIDENCE PROVES THAT COSMETIC TALC DID NOT CAUSE
PLAINTIFF’S MESOTHELIOMA
The New York Court of Appeals has repeatedly stated that the relevant standard in toxic
tort cases is that “an expert opinion on causation must set forth (1) a plaintiff's exposure to a toxin,
(2) that the toxin is capable of causing the particular injuries plaintiff suffered [general causation]
and (3) that the plaintiff was exposed to sufficient levels of the toxin to cause such injuries [specific
causation].” Sean R. v. BMW of N. Am., LLC, 26 N.Y.3d 801, 808 [2016] (citing Parker v. Mobil
Oil Corp., 7 N.Y.3d 434, 448 [2006]). The standards outlined by the Court of Appeals in Parker
and Cornell for establishing proximate causation in an alleged toxic exposure case were recently
reaffirmed for use in “asbestos litigation” by the Court in In re New York City Asbestos Liti. (Juni),
32 N.Y.3d 1116 [2018]. In doing so, the Court confirmed that the necessary causation inquiry is
product specific. Here, that product is consumer cosmetic talc.
Additionally, recently, the Court of Appeals further clarified the requirements to establish
causation in Nemeth v Brenntag N. Am., 2022 NY Slip Op 02769 [2022]. Specifically, the Court
explained that plaintiff’s experts must: 1) establish the level of toxin sufficient to cause the
particular injury (“threshold” or “asbestos causation”), and 2) demonstrate plaintiff’s level of
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exposure in the manner alleged (“substantial factor causation”). (Exh. DD, Nemeth v Brenntag N.
Am., 2022 NY Slip Op 02769 [2022]). Nemeth involved the same talc defendant (WCD), same
Plaintiff’s expert (Dr. Jacqueline Moline), same lack of threshold for pleural mesothelioma, and same
lack of scientific expression of a dose relative to the plaintiff’s alleged use of a talcum product.
A. GENERAL CAUSATION - Cosmetic Talc Does Not Cause Mesothelioma
In the context of cosmetic talc, to establish general causation the Plaintiff must prove the
asbestos “as contained within” consumer use talcum products is known to cause pleural
mesothelioma in the general population, not merely whether asbestos, standing alone, causes
pleural mesothelioma in the general population. See In re New York City Asbestos Liti. (Juni), 148
A.D.3d 233, 236 [1st Dept. 2017] and Mantovi v. American Biltrite, Inc., et al. Index No.
190055/2017 [NY Sup. Ct., Jan. 31, 2019] (decision by Justice Manual J. Mendez granting
defendant American Biltrite, Inc.’s motion for summary judgment).
Summary judgment is appropriate in toxic tort cases where studies show a mere association
between an alleged cause and effect, and the proofs do not establish that the relevant scientific
community generally accepts that the product causes the alleged health effect. See Cornell v. 360
W. 51st St. Realty, LLC, 22 N.Y.3d 762, 783 [2014]. The Court of Appeals decision in Juni, while
brief, nonetheless reiterated the need for causation evidence to be product-specific. See
generally, Juni, Parker, Cornell. Such causation evidence is presented through the epidemiology.
In Cornell, plaintiff’s general causation expert, Dr. Johanning, “departed from the generally
accepted methodology for evaluating epidemiologic evidence when determining whether exposure
to an agent causes a harmful effect or disease.” 22 N.Y.3d at 783. In fact, the Cornell Court
specifically stated that a ruling on general causation “hinges on the scientific literature in the record
before the Trial court.” Cornell v. 360 W. 51st. St. Realty, LLC, 22 N.Y3d 762, 785 (2014).
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In terms of the scientific evidence necessary to establish general causation, the Court has
made clear that evidence of an “increased risk,” “link,” or “association” does not equate to legal
causation. Id. at 783. The Court explained that, “Although a causal relationship is one possible
explanation for an observed association between an exposure and a disease, an association does
not necessarily mean that there is a cause-effect relationship.” Id. citing Green, et al., Reference
Guide on Epidemiology Manual on Scientific Evidence 566, Federal Judicial Center [3d ed. 2011].
Thus, at summary judgment, the mere association between a toxin and an effect is
insufficient to establish general causation. In Cornell, plaintiff claimed personal injuries from
exposure to dampness and mold in an apartment formerly owned by the defendant. Cornell, 22
N.Y.3d at 766. Plaintiff’s expert failed to establish that the mold caused plaintiff’s injuries. Id. at
767-68. The Court of Appeals, in affirming the dismissal of the action against the defendant, held
that the defendant established a prima facie entitlement to summary judgment and the plaintiff had
not raised a triable issue of fact with respect to general causation by asserting the mere
“association” between the environment and plaintiff’s medical condition. This “association” did
“not establish that the relevant scientific community generally accepts” that the mold caused
plaintiff’s adverse health effects. Id. at 783.
Here, the scientific evidence presented by WCD proves that cosmetic talc use is not a
generally accepted cause of mesothelioma. (See Exh. I, Mundt Affidavit). Studies of individuals
highly exposed to the same or similar talc dust do not show increased development of
mesotheliomas and, in fact, show no mesotheliomas. (See Exhs. K-O). Over several decades,
numerous studies followed thousands of talc miners and millers, in which no cases of
mesothelioma were reported. (Id.). Thus, the epidemiological evidence confirms that consumers
are at no increased risk of developing mesothelioma from cosmetic talcum dust, because
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consumers would have been exposed to far less dust than the miners and millers. Clearly, the
prima facie evidence supports WCD’s general causation argument.
Once the burden shifts, Plaintiffs and their experts will attempt to distract the Court with a
discussion of “asbestos,” which is not the “product” at issue. Parker and Cornell require a plaintiff
prove more than the fact that “asbestos” causes mesothelioma – the plaintiff must prove that the
toxin “as contained within” the product caused the injury. Parker, 7 N.Y.3d at 449-50. In other
words, the law requires plaintiffs to prove that the product, used in the same or similar manner,
caused the condition. See generally Juni, 148 A.D.3d 233, affirmed 32 N.Y.3d 1116 [2018]. The
“as contained within” requirement comes from Parker, wherein plaintiff alleged that he
developed AML as a result of exposure to benzene in gasoline from his employment at a gasoline
service station. Id. at 7 N.Y.3d 434. There, plaintiff produced the reports of two experts, who both
generally concluded plaintiff contracted AML as a result of his personal occupational exposure to
benzene, based on studies that linked benzene exposure to AML. The Court o
Preview
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 SUPREME COURT OF THE STATE OF NEW YORK EIGHTH JUDICIAL DISTRICT -----------------------------------------------------------------X IN RE: EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION ---------------------------------------------------------------- X PATSY YOUNG, Index No. 815818/2020 Plaintiff, -against- AVENTIS, INC., et al., Defendants. ---------------------------------------------------------------- X MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT WHITTAKER CLARK & DANIELS, INC.’S MOTION FOR SUMMARY JUDGMENT LANDMAN CORSI BALLAINE & FORD P.C. One Gateway Center, 4th Floor Newark, New Jersey 07102 T: (973) 623-2700 - and - 120 Broadway New York, New York 10271 T: (212) 238-4800 E: ckozak@lcbf.com Attorneys for Defendant Whittaker Clark & Daniels, Inc. On the Brief Christopher S. Kozak, Esq. 1 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 PRELIMINARY STATEMENT Defendant Whittaker Clark & Daniels, Inc. (“WCD”), by its undersigned counsel, pursuant to CPLR § 3212, respectfully moves for summary judgment on all claims against it because the evidence proves that the plaintiff, Patsy Young (“Young”) did not come in contact with a talc distributed by WCD that contained “asbestos.” Additionally, the evidence demonstrates that cosmetic talcum powder does not cause mesothelioma and that inhalation of cosmetic talcum, comparable to (or greater than) the amount of use claimed by Young, proves that Young was not “exposed” to levels of “asbestos” sufficient to cause her illness. Young claims that she developed mesothelioma from her mother and her personal use of Avon’s Skin So Soft talcum powder, Topaz talcum powder, and Charisma talcum powder (hereinafter, “Avon’s talcum powders”), and her ex-husband, her sons, and her personal use of Gold Bond medicated powder (collectively, the products “at issue” relative to WCD). Additionally, Young claims that she developed mesothelioma from her mother, her siblings, and her personal use of Cashmere Bouquet talcum powder and Caldesene talcum powder, and Johnson & Johnson’s Baby Powder. NOT A DISTRIBUTOR FOR J&J, CALDESENE, AND COLGATE’S CASHMERE BOUQUET: Significantly, WCD did not distribute talc for use in Johnson & Johnson’s Baby Powder, Caldesene talcum powder, or Cashmere Bouquet. Thus, WCD is entitled to partial summary judgment as to any claims related to Young’s alleged use of Johnson & Johnson’s Baby Powder, Caldesene talcum powder, and Cashmere Bouquet. DISTRIBUTOR SPECULATION AS TO AVON AND GOLD BOND: Plaintiff further claims that Avon’s talcum powders and Gold Bond medicated powder (hereinafter “these products” or the products “at issue” relative to WCD) may have contained talc supplied 2 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 by WCD. 1 With respect to Avon and Gold Bond, Block Drug, Stephan Company, Chattem, Inc., and Pharma Tech (subsequent manufacturers of Gold Bond), the evidence shows that while WCD was one of several talc suppliers whose talc was approved for use to make these products, none of the manufacturers have batch evidence to determine which suppliers’ talc was used to make their products at any given time. Thus, it will require a jury to speculate as to the final batch formulations in order to hold WCD accountable for the talc used in these claimed products. Accordingly, WCD is entitled to summary judgment as to these products. CONTENT PROOFS: Moreover, even if the Court ignores the source of the talcs used in the products Plaintiff is attempting to attribute to WCD, the evidence affirmatively shows that these product formulations did not specify the use of “asbestos.” Indeed, there is no dispute that “asbestos” was not an ingredient in the formulation of any product at issue here. Rather, Plaintiff asserts that some or all of Young’s containers were somehow contaminated with trace amounts of undetectable “asbestos.” There is, however, no direct evidence of contamination in these products, i.e., there are no containers of products that Plaintiff claims Young possessed which have been tested for “asbestos” presence. And, even if WCD’s talc arguably was an ingredient in these products, WCD’s talc always was tested by 3rd party Labs before sale to these manufacturers and found to not have had detectable levels of asbestos, and thus, there was evidence of “asbestos” content at the times sold. As such, WCD is entitled to summary judgment. 1 The precise formulas for these specific products during the years in question are not known. While WCD did have talc sales to Gold Bond, Block Drug, Stephan Company, Chattem, Inc., and Pharma Tech (Gold Bond) and Avon during certain times, there is no evidence of which supplier’s talc and which grade of talc was used in the final batch formulations for Avon’s talcum powders and Gold Bond medicated powder at any particular time. (See Affirmation of Christopher S. Kozak dated March 3, 2023). Thus, at best, WCD was “a” talc supplier, but cannot be “the” supplier of talc for any product here. 3 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 GENERAL CAUSATION EVIDENCE AT THE TIME: Notwithstanding the fact that these products would require source speculation (i.e., the distributor identification claim fails) and that the “contents evidence” proves that WCD-distributed talc to these manufacturers was tested at the time and did not contain detectable “asbestos” (i.e., the content claim fails), the scientific evidence demonstrates that consumer use of cosmetic talc does not increase a person’s risk of developing malignant mesothelioma (i.e., the general causation claim fails). SPECIFIC CAUSATION EVIDENCE (NEMETH FACTORS): Even ignoring whether cosmetic talc is capable of causing malignant mesothelioma, the evidence further shows that Young’s alleged use of these products did not result in a level of “asbestos” “exposure” sufficient to cause her mesothelioma (i.e., the specific causation claim fails). Thus, based on any of the above evidence (distributor speculation, content proofs, general causation, or specific causation), the Court must grant summary judgment in favor of WCD and dismiss Plaintiff’s claims against it. STATEMENT OF FACTS I. PLAINTIFF’S COSMETIC TALC DESCRIPTION Plaintiff filed suit against fourteen defendants, including WCD, alleging Young developed mesothelioma form her alleged use of defendants’ products claimed to contain asbestos.. (See Exh. A, Plaintiffs’ Complaint).2 WCD’s Verified Answer is attached as Exh. B. Plaintiff alleges that some or all of the talcum products Madsen and her parents used were contaminated with a trace amount of undetectable “asbestos.” (See generally Exh. C, Plaintiff’s Answers to Interrogatories). Plaintiff testified that she did not recall seeing any warnings on the containers of 2 References to “Exh. ___” refer to those materials attached as Exhibits to the Affirmation of Christopher S. Kozak, dated March 3, 2023. 4 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 the Avon’s talcum powders or Gold Bond medicated powder and denied reading the full list of ingredients on the products. (See Exh. C and Exh. D, Plaintiff’s Discovery Deposition at 521:19- 21; 492:8-10; 496:14-16; 499:17-19). Additionally, she was never advised by any doctor that her mesothelioma was caused by her alleged use of talcum powder products or that she was “exposed” to asbestos from any cosmetic products. (See Exh. D, at 510:25; 511:1-3; 554:7-11; 569:4-13). II. DISTRIBUTOR SPECULATION - PLAINTIFF’S CLAIMED USE OF PRODUCTS SHE ATTRIBUTES TO WCD First, plaintiff claims she was exposed to Johnson & Johnson’s Baby powder, Caldesene talcum powder, and Colgate’s Cashmere Bouquet. Notably, WCD was not a supplier of talc to Johnson & Johnson nor Prestige Consumer Healthcare (Caldesene) at any time. Additionally, WCD was not a supplier of talc to Colgate for Cashmere Bouquet. Plaintiff testified that she personally used Avon’s talcum powders from 1975-89. (See Exh. D, at 487:15-18; 510:13-16). Plaintiff testified that her ex-husband and then ex-boyfriend used Gold Bond in her presence from 1979-81 and 1981-2000, respectively. (See Exh. D, at 516:16-21; 529:12-14). She also testified that she and her sons used Gold Bond from 2006-09. (See Exh. D, at 537:16-18; 543:3-9; 548:16-20). During Young’s alleged period of use (1975-89), WCD sold talc and other minerals and pigments to Avon, including Talc Grades 1, 141, 1615, 1621, 1623, 2450, 2755, and 3300. (Exh. E, WCD Sales to Avon). During Plaintiff’s alleged period of use, Gold Bond medicated powder was owned by Gold Bond until 1987, when it was acquired by Block Drug, and then Martin Himmel, Inc. in 1990. In 1996, Gold Bond was sold to Chattem, Inc. WCD did not have sales to Martin Himmel, Inc. during Plaintiff’s alleged period of use. However, WCD distributed limited talc and other minerals and pigments to Gold Bond from 1979 through 1981, including Talc Grade 1615, Block Drug in 1987, including Talc Grade 127, Stephan Co. from 1990 through 1996, 5 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 including Talc Grades 1745, 3355, and 6030, Chattem, Inc. from 1996 through 1998, including Talc Grades 141, 1745, and 6030, and Pharma Tech, a contract manufacturer for Chattem, Inc., from 1996 through 2001, including Talc Grades 1745, 3441, 5215, and 6030. (Exh. F, WCD Sales to Gold Bond, Exh. G, WCD Sales to Block Drug and Stephan Co., Exh. H, WCD Sales to Chattem, Inc., and Pharma Tech). It remains unclear which supplier(s)’talc was actually used in the final batch formulations of Avon’s talcum powders and Gold Bond medicated powder sold to consumers during the years claimed. In fact, there is no final batch formula for the products at issue that lists WCD as the exclusive supplier of the talc used in those product formulations during the years in question. III. CONTENT PROOFS Even if WCD talc was used in the formulations of the products Plaintiff is attributing to WCD, there is no dispute that these products were not formulated to contain “asbestos.” And, the regions from which this WCD talc was sourced, including Val Chisone, Italy; Murphy, North Carolina; Southwest Montana; and Alpine, Alabama were known to be “asbestos-free.” (Exh. I, Affidavit by Alan M. Segrave, P.G., p. 4-9). Moreover, regardless of the mines from which WCD talc was sourced, WCD has supplied affirmative evidence that the above grades of talc were tested before WCD distributed talc to its customers. (Id.). Those results show that at the times relevant to WCD’s distribution of these grades of talc, its knowledge was that its talc did not contain detectable “asbestos” fibers. (See below) IV. COSMETIC TALC DOES NOT CAUSE MESOTHELIOMA Epidemiology is the study of disease in certain populations of people. The epidemiology related to talc use and exposure shows that it does not cause or increase the risk of developing mesothelioma. (Exh. J, Affidavit by Kenneth A. Mundt, Ph.D. F.A.C.E.). At the outset, generally, 6 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 there are no epidemiological studies of consumers who have used cosmetic talcum products.3 (Id. at 27). However, there are numerous epidemiological studies of miners and millers, occupationally exposed to cosmetic talc. Intuitively, the opportunity for exposure to dust from consumer-use talcum is far less (in terms of exposure intensity, frequency, and duration) than occupational exposures to talc dust experienced by miners and millers. Numerous studies of cosmetic talc miners and millers prove there have been no reports of an increased incidence of mesothelioma. (Id. at 27). These studies show no cases of mesothelioma: Rubino, et al., Mortality Studies of Talc Miners and Millers, 18 J. Occup. Med. 186 (1976) – A study of 1,514 miners and 478 millers who worked at least one year between 1921 and 1950 in the Val Chisone mines revealed no cases of mesothelioma. (Exh. K). Rubino, et al., Mortality & Morbidity Among Talc Miners and Millers in Italy, in Dusts and Disease (1979) – An update of the 1976 study again found no cases of mesothelioma in the miners and millers and concluded that “no relationship has been found between Italian talc exposure and cancer.” (Exh. L). Wild, et al., A Cohort Mortality And Nested Case-Control Study of French and Austrian Talc Workers, Occup. Environ. Med. 59-98-105 (2002) – A study of the mortality from non-malignant and malignant respiratory diseases of workers employed in French and Austrian talc mines and mills found no observable dose- response for cancer. (Exh. M). Coggiola, et al., An Update of a Mortality Study of Talc Miners and Millers in Italy, 44 Am. J. Indust. Med. 63 (2003) – A study of 1,795 miners and millers who worked at least one year in the Val Chisone mines and/or factory between 1946 and 1995 revealed no cases of mesothelioma. (Exh. N). Pira, et al., Mortality of Talc Miners and Millers from Val Chisone, Northern Italy: An Updated Cohort Study, J. Occup. & Environ. Med. 59:659-64 (2017) – An updated study again found no deaths among the miners and millers from mesothelioma. (Exh. O). 3 In fact, Plaintiff’s expert, Dr. Jacqueline Moline, has admitted there are no peer-reviewed epidemiological studies indicating that consumers of cosmetic talcum powder have an increased risk of developing mesothelioma. (See Exh. PP, Dr. Moline October 16, 2014 deposition transcript at 111:7-16). 7 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 These above studies indicate that while heavy exposure to similar source talcs alleged in this case increased the risks of nonmalignant respiratory diseases, including pneumoconiosis and a disease called talcosis, they have not caused or increased the risk of developing mesothelioma in those workers. (Exh. I, at 26). It is important to note that a substantial proportion of mesotheliomas arise spontaneously, with no known exposures to “asbestos” or other risk factors. (Id. at 16). There can be no doubt that the causation link between talc and pleural mesothelioma does not exist in this case. V. INHALATION OF COSMETIC TALC COMPARABLE TO OR GREATER THAN YOUNG’S DESCRIPTION PROVES THAT TALC DID NOT CAUSE HER MESOTHELIOMA There is substantial evidence that normal use of cosmetic talc products does not increase the risk of an asbestos-related malignancy. (Exh. P, February 28, 2023, Report of Christy A. Barlow, Ph.D.). As outlined in Dr. Barlow’s Report, the FDA and numerous scientists have found that consumer use of cosmetic talc is safe and does not increase a person’s risk of developing pleural mesothelioma: 2/27/1976 – FDA Memorandum by Heinz Eiermann, Director, Div. of Cosmetics Technology, p.2 – “Questions Concerning Toxicity of Talc,” noting that there was, at that time, no scientific data demonstrating adverse effects from inhalation of talc. Also, a two-year inhalation study in hamsters showed no adverse effects from inhalation of exaggerated dose levels. (Exh. Q) 6/6/1985 – U.S. Dep’t of Health & Human Services, Qualitative Risk Assessment Committee (QRAC), “Asbestos in Talc” – In a study assuming a minor amount of asbestos content in consumer talcum, used for 43.8 minutes a week for fifty-two weeks, governmental scientists concluded that the exposure estimate for asbestos would be less than environmental background levels over a lifetime. (Exh. R). 1986 – FDA Letter by J.W. Swanson, Acting Associate Commissioner for Regulatory Affairs, FDA – Stating that FDA scientists reviewed the QRAC findings and likewise concluded that “the risk from a worst-case estimate of exposure to asbestos from cosmetic talc would be less than the risk from environmental background levels of exposure to asbestos (non-occupational exposure) over a lifetime.” (Exh. S). 8 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 1987 – World Health Organization, International Agency for Research on Cancer, The Monographs – Talc, pp.185-224 – Reviewing all biological data and scientific studies relevant to the carcinogenic risk in humans, the Agency concluded that there is “inadequate evidence for the carcinogenicity of talc to experimental animals. [And, t]here is inadequate evidence for the carcinogenicity to humans of talc not containing asbestiform fibres [sic]. . .” p.214. (Exh. T). 2/10/1994 – U.S. Dep’t of Health & Human Services, “Report on Talc Workshop” – Reporting that the results of a two-year rodent study by the National Toxicology Program revealed no human health hazard from the inhalation of talc in consumer products. (Exh. U). 2010 – IARC World Health Organization, International Agency for Research on Cancer, The Monographs – Talc, pp.277-413 – Concluding again that, “[t]here is inadequate evidence in humans for the carcinogenicity of inhaled talc not containing asbestos or asbestiform fibers.” p.412 (Exh. V). Putting the above into context, WCD presents affirmative evidence through Dr. Barlow that there are cumulative “asbestos” thresholds below which there is no risk or negligible risk of developing mesothelioma. (See Exh. P at pp. 26-27). Scientists have examined and evaluated cohorts of exposed individuals in their homes, neighborhoods, and occupations. (Id.). Dr. Barlow explained that the chrysotile “no-observed adverse effect level” (NOAEL), i.e., threshold, for mesothelioma ranges from 208-415 f/cc-yrs and the tremolite NOAEL ranges from 0.5 – 2.6 f/cc-yrs. (Id.). Additionally, peritoneal mesothelioma is associated with heavier asbestos exposures than pleural mesothelioma. (Id. at 28). Even assuming there was a trace level of asbestiform minerals in the products that Plaintiff claims Young used, an under a “worst-case assumption,” “any associated asbestos exposure potential would have been well within (or below) the corresponding cumulative background or ambient levels of asbestos found in the air in the U.S., and below the cumulative asbestos exposure potential associated with working at the current OSHA PEL for asbestos over 45 years.” (Exh. P at p.28). Dr. Barlow found that Young’s total dose from cosmetic talcum powder products use (if one accepts Young’s talcum use claim) would only have resulted in an exposure of .00002 - .003 f/cc-yrs. 9 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 (See Exh. P at p.25). The evidence shows Young’s alleged talcum powder use, even if asbestos- containing, would not rise above the chrysotile or tremolite NOAEL thresholds for mesothelioma. (Id. at 26-27). ARGUMENT Under New York law, a defendant in an asbestos-related bodily injury action is entitled to summary judgment in the absence of proof that the plaintiff was exposed to asbestos from that defendant's products. See Cawein v. Flintkote Co., 203 AD2d 105, 106 [1st Dept 1994] (noting that to defeat summary judgment in an asbestos bodily injury action, “it must be shown that plaintiff was exposed to asbestos fibers released from the moving defendant's products”). Once a party seeking summary judgment has established a prima facie basis for relief through supporting Affidavits and Exhibits, the burden shifts to the party opposing summary judgment to demonstrate the need for a Trial. See Zuckerman v. City of N Y, 49 NY2d 557, 560 [1980] (“where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action”). Moreover, summary judgment must be granted unless the opposing party demonstrates a genuine, triable issue of fact. See Barilla v. Meredith Corp., 224 AD2d 992 [4th Dept 1996]; Roberts-Gordon Appliance Corp. v. M Parisi & Son Constr., 96 AD2d 719 [4th Dept 1983]. The required demonstration of the existence of a genuine, triable issue of fact must be made in a non-conclusory, admissible manner. See Barilla, 224 AD2d at 992; Zawadzki v. Knight, 155 AD2d 870 [4th Dept 1989], affd, 76 NY2d 898. 10 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 I. “DISTRIBUTOR SPECULATION” -- EVIDENCE DEMONSTRATES IT WOULD REQUIRE SPECULATION TO SAY THAT WCD’S TALC WAS USED IN THE PRODUCTS “AT ISSUE” Although WCD distributed talc to defendant manufacturers at various times, the evidence shows that it would be impossible to prove that WCD’s talc was actually used in the final batch formulations of the products alleged to be attributable to WCD. The evidence presented in this matter, even examined in a light most favorable to Plaintiffs, is insufficient to overcome WCD’s Motion for Summary Judgment. See Bevens v. Tarrant Manufacturing Co., 87 NY2d 596, 601 [3rd Dept 2008]. In order to be successful on a Motion for Summary Judgment in a products liability case, the plaintiff must establish that it was the defendant’s product that caused injury and that the evidence of the defendant’s identity was not conjecture, speculation, or balanced between other defendants. See Healy v. Firestone Tire & Rubber Co., 87 NY2d 596, 601-02 [1996] (“The circumstantial evidence of the identity of the manufacturer of the defective product causing personal injury must establish that it is reasonably probable, not merely possible or even balanced, that the defendant was the source of the offending product … Speculative or conjectural evidence of the manufacturer’s identity is not enough.”). When a plaintiff brings a claim against multiple suppliers for the same product or fails to identify the supplier of the ingredients in the product, as is the case here, it would be impermissibly speculative to find that WCD’s talc was the cause of Plaintiff’s cancer. See D’Amico v. Manufacturers Hanover Trust Company, 173 AD2nd 263 [1st Dept, 1991]. In Shields v. American Biltrite, Inc., et al., Index 2016-3854 [N.Y. Sup. Ct. Cty. Monroe March, 30, 2017] (unreported), the Supreme Court granted defendant Union Carbide’s motion for summary judgment, as Union Carbide was one of multiple distributors of asbestos for the tiles used by the plaintiff, and it would be impossible to “definitively ascertain” whether the plaintiff 11 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 was ever exposed to asbestos supplied by Union Carbide. (Exh. W). The Court explained that, “although a factual issue may be present in an action, if its very nature precludes the possibility of its ultimate resolution, the entire exercise is futile, and summary judgment must issue to a moving defendant.” Id. at *4; see also Healy, 87 NY2d at 601-02 (“The circumstantial evidence of the identity of the manufacturer of the defective product causing personal injury must establish that it is reasonably probable, not merely possible or even balanced, that the defendant was the source of the offending product . . . Speculative or conjectural evidence of the manufacturer’s identity is not enough”). In order for Plaintiffs to have a triable claim against WCD, there must be evidence demonstrating that WCD’s talc and not someone else’s talc was used as an ingredient in the products at issue during the time that Plaintiff claims Young used or was around them. Here, summary judgment is appropriate. The evidence shows that it would not be possible to determine which grade of talc was used in these products during the times alleged. Without such information, it will be impossible to determine whose talc was used in any particular container of these products. Instead, Plaintiff simply claims, without evidential support, that WCD could have supplied talc that was used as an ingredient in these products. Here, summary judgment is required because Plaintiff’s claims against WCD are based on mere speculation and conjecture, and no dispute of material fact exists. See Healy, 87 NY2d at 601. II. WHEN WCD DISTRIBUTED TALC, IT DID NOT CONTAIN “ASBESTOS” Plaintiff’s claims against WCD require her to prove that she came into contact with talcum products that actually contained “asbestos.” See Karr v. Inecto, Inc., 247 NY 360, 364- 65 [1928] (“We are asked to draw the inference that the ‘chemical poison or irritant’ which it is said caused injury to the plaintiff was contained in the ‘chemical product’ of the defendant 12 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 merely because the injury occurred on the finger which was stained by the dye twelve hours before, though the possibility of other causes is not excluded and though there is no direct evidence that the 'chemical product' contained any chemical poison or irritant . . . We do not find that the evidence sustains such inferences”) (emphasis added); Place v. Fed. Pac. Elec. Co., Nos. 18330/88, 591095/93, 1996 WL 34571261 at *6 [NY Sup Ct Sept. 16, 1996] (“Obviously, there was no direct evidence from which a jury could rationally find that the switch was defective. In the absence of such direct evidence, it was incumbent upon plaintiffs to exclude all causes not attributable to [Defendant]”); Jerry v. Borden Co., 358 NYS2d 426, 431 [2d Dept 1974] (“The party injured cannot rely on the fact of the injury after use of the cosmetics under the circumstances involved . . . the product must be shown to have been defective . . .”); In re New York City Asbestos Litig., 216 AD2d 79, 80 [1st Dept 1995] (summary judgment appropriate where plaintiff failed to prove that defendant was exposed to products containing asbestos fibers). Here, summary judgment is appropriate because WCD has submitted affirmative evidence that its sources of mined talc were asbestos-free and/or not from areas with known growths of asbestiform minerals. (See Exh. I, Segrave Affidavit). Indeed, the mine sources were asbestiform-free and, to be sure, the milled talc WCD received was tested by 3rd party Labs who repeatedly found no detectable “asbestos.” (Id.). Plaintiff has no competing evidence of the milled talc before it was used in any of the defendant manufacturers’ products. And, in light of the lack of formula or batch evidence putting a WCD-distributed talc into a finished consumer product, it would be speculative to attribute against WCD any testing of a finished cosmetic product. 13 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 Additionally, even if WCD’s talc could have been used in some but not all of Avon or Gold Bond products, many courts have held that a plaintiff cannot demonstrate that he/she was exposed to asbestos from a defendant's product based on evidence that some, but not all, containers of the product contained asbestos. See, e.g., Exh. X Collin v. Calportland Co., 228 Cal App 4th 582, 586, 592-93, 595-97 [2014] (affirming summary judgment for defendant where defendant had made asbestos-containing joint compound for sixteen years, and non-asbestos containing joint compound for two years, and the plaintiff claimed exposure to dust from joint compound during that entire period, because it was too speculative for a reasonable jury to conclude that the plaintiff was exposed to the asbestos-containing variant of the product); Exh. Y, Wagner v. Bondex Int'l Inc., 368 SW3d 340, 351-52 [Mo Ct App 2012] (entering directed verdict for defendant where “[p]laintiffs' evidence ... amount[ed] to nothing more than that [defendant] made ceiling tile, some of which contained asbestos and some of which did not” and thus any verdict finding that plaintiff was “even exposed to asbestos by” defendant would be “speculative, at best”); Exh. Z, Lindstrom v. A-C Product Liability Trust, 424 F3d 488, 498 [6th Cir 2005] (finding no triable issue of fact where the defendant manufactured asbestos-containing as well as non-asbestos-containing products and the plaintiff's witnesses “could not tell whether any material [made by the defendant and] handled by [the plaintiff] contained asbestos”); Exh. AA, Chapp v. Borg-Warner Morse Tec LLC, 15-cv-5887 [Wi Cir Ct Apr. 4, 2018] (granting summary judgment when the proofs were insufficient to establish that the specific product used by plaintiff’s wife was, in fact, contaminated, as there were no samples of the product the plaintiff’s wife actually used available for testing and no samples of the product from the relevant period, identical to that used by his wife, available for testing); and Exh. BB, Berg v. Alta Building Material Co. RG17849298 [Cal Sup Ct Mar. 16, 2018] (finding no evidence without speculating 14 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 that plaintiff was exposed to asbestos through defendant’s product even when accepting’s plaintiff’s evidence as true and accepting plaintiff’s expert’s findings). Relying on such evidence would render it “mere[ ] speculation” that a particular plaintiff was exposed to an asbestos- containing version of a defendant's product, as opposed to an asbestos-free version of that product. See Williams v. A.C.&S., Inc., et al., No. 107181/2001, 2010 WL 9937753 at *2 [NY Sup Ct June 25, 2010] (unreported) (granting summary judgment where plaintiff offered only “mere speculation” that “the Good year sheet gasket material to which plaintiff was exposed contained asbestos” where only a portion of gaskets were manufactured as asbestos-containing). Further still, in Hanson v. Colgate-Palmolive Co., the Court granted a talcum manufacturer’s motion for summary judgment finding: First, it is undisputed that asbestos is not an intended ingredient of Cashmere Bouquet. Second, a review of the record shows that no study, test, or expert can opine as to whether the Cashmere Bouquet to which [plaintiff] was exposed contains asbestos. Third, if [plaintiff]’s Cashmere Bouquet did contain asbestos, it is undisputed that no study, test, or expert can opine as to the quantity of asbestos contained in [plaintiff]’s Cashmere Bouquet. See Exh. CC, Hanson v. Colgate-Palmolive Co., No. CV 216-034 at 3 [SD Ga Sept 28, 2018]. As the above decisions recognize, it is well-settled that a plaintiff cannot avoid summary judgment with evidence that renders it merely “possible” that he was exposed to “asbestos” from the defendant’s product. Casey v. Perini Corp. 206 Cal. App. 4th 1222 [2012]. And, where a plaintiff could at most prove that some (but not all) of a product contained “asbestos,” it would require speculation for a jury to conclude that the plaintiff personally used an asbestos-containing, rather than a non-asbestos containing, version of the product. Collin, 228 Cal App 4th 582. 15 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 Here, summary judgment is warranted because Plaintiff’s claims against WCD are based on mere speculation and conjecture, and no dispute of material fact exists. See Healy, 87 NY2d at 601. Plaintiff alleges that products at issue could have contained trace amounts of undetected “asbestos,” despite having no direct evidence from any container Young could have used. The evidence does not support that the content of a WCD-distributed talc contained “asbestos,” and that it knew or should have known that it contained “asbestos” at the times relevant to this matter. As such, Plaintiff’s claims against WCD must be dismissed. III. THE EVIDENCE PROVES THAT COSMETIC TALC DID NOT CAUSE PLAINTIFF’S MESOTHELIOMA The New York Court of Appeals has repeatedly stated that the relevant standard in toxic tort cases is that “an expert opinion on causation must set forth (1) a plaintiff's exposure to a toxin, (2) that the toxin is capable of causing the particular injuries plaintiff suffered [general causation] and (3) that the plaintiff was exposed to sufficient levels of the toxin to cause such injuries [specific causation].” Sean R. v. BMW of N. Am., LLC, 26 N.Y.3d 801, 808 [2016] (citing Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448 [2006]). The standards outlined by the Court of Appeals in Parker and Cornell for establishing proximate causation in an alleged toxic exposure case were recently reaffirmed for use in “asbestos litigation” by the Court in In re New York City Asbestos Liti. (Juni), 32 N.Y.3d 1116 [2018]. In doing so, the Court confirmed that the necessary causation inquiry is product specific. Here, that product is consumer cosmetic talc. Additionally, recently, the Court of Appeals further clarified the requirements to establish causation in Nemeth v Brenntag N. Am., 2022 NY Slip Op 02769 [2022]. Specifically, the Court explained that plaintiff’s experts must: 1) establish the level of toxin sufficient to cause the particular injury (“threshold” or “asbestos causation”), and 2) demonstrate plaintiff’s level of 16 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 exposure in the manner alleged (“substantial factor causation”). (Exh. DD, Nemeth v Brenntag N. Am., 2022 NY Slip Op 02769 [2022]). Nemeth involved the same talc defendant (WCD), same Plaintiff’s expert (Dr. Jacqueline Moline), same lack of threshold for pleural mesothelioma, and same lack of scientific expression of a dose relative to the plaintiff’s alleged use of a talcum product. A. GENERAL CAUSATION - Cosmetic Talc Does Not Cause Mesothelioma In the context of cosmetic talc, to establish general causation the Plaintiff must prove the asbestos “as contained within” consumer use talcum products is known to cause pleural mesothelioma in the general population, not merely whether asbestos, standing alone, causes pleural mesothelioma in the general population. See In re New York City Asbestos Liti. (Juni), 148 A.D.3d 233, 236 [1st Dept. 2017] and Mantovi v. American Biltrite, Inc., et al. Index No. 190055/2017 [NY Sup. Ct., Jan. 31, 2019] (decision by Justice Manual J. Mendez granting defendant American Biltrite, Inc.’s motion for summary judgment). Summary judgment is appropriate in toxic tort cases where studies show a mere association between an alleged cause and effect, and the proofs do not establish that the relevant scientific community generally accepts that the product causes the alleged health effect. See Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 783 [2014]. The Court of Appeals decision in Juni, while brief, nonetheless reiterated the need for causation evidence to be product-specific. See generally, Juni, Parker, Cornell. Such causation evidence is presented through the epidemiology. In Cornell, plaintiff’s general causation expert, Dr. Johanning, “departed from the generally accepted methodology for evaluating epidemiologic evidence when determining whether exposure to an agent causes a harmful effect or disease.” 22 N.Y.3d at 783. In fact, the Cornell Court specifically stated that a ruling on general causation “hinges on the scientific literature in the record before the Trial court.” Cornell v. 360 W. 51st. St. Realty, LLC, 22 N.Y3d 762, 785 (2014). 17 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 In terms of the scientific evidence necessary to establish general causation, the Court has made clear that evidence of an “increased risk,” “link,” or “association” does not equate to legal causation. Id. at 783. The Court explained that, “Although a causal relationship is one possible explanation for an observed association between an exposure and a disease, an association does not necessarily mean that there is a cause-effect relationship.” Id. citing Green, et al., Reference Guide on Epidemiology Manual on Scientific Evidence 566, Federal Judicial Center [3d ed. 2011]. Thus, at summary judgment, the mere association between a toxin and an effect is insufficient to establish general causation. In Cornell, plaintiff claimed personal injuries from exposure to dampness and mold in an apartment formerly owned by the defendant. Cornell, 22 N.Y.3d at 766. Plaintiff’s expert failed to establish that the mold caused plaintiff’s injuries. Id. at 767-68. The Court of Appeals, in affirming the dismissal of the action against the defendant, held that the defendant established a prima facie entitlement to summary judgment and the plaintiff had not raised a triable issue of fact with respect to general causation by asserting the mere “association” between the environment and plaintiff’s medical condition. This “association” did “not establish that the relevant scientific community generally accepts” that the mold caused plaintiff’s adverse health effects. Id. at 783. Here, the scientific evidence presented by WCD proves that cosmetic talc use is not a generally accepted cause of mesothelioma. (See Exh. I, Mundt Affidavit). Studies of individuals highly exposed to the same or similar talc dust do not show increased development of mesotheliomas and, in fact, show no mesotheliomas. (See Exhs. K-O). Over several decades, numerous studies followed thousands of talc miners and millers, in which no cases of mesothelioma were reported. (Id.). Thus, the epidemiological evidence confirms that consumers are at no increased risk of developing mesothelioma from cosmetic talcum dust, because 18 of 33 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/03/2023 consumers would have been exposed to far less dust than the miners and millers. Clearly, the prima facie evidence supports WCD’s general causation argument. Once the burden shifts, Plaintiffs and their experts will attempt to distract the Court with a discussion of “asbestos,” which is not the “product” at issue. Parker and Cornell require a plaintiff prove more than the fact that “asbestos” causes mesothelioma – the plaintiff must prove that the toxin “as contained within” the product caused the injury. Parker, 7 N.Y.3d at 449-50. In other words, the law requires plaintiffs to prove that the product, used in the same or similar manner, caused the condition. See generally Juni, 148 A.D.3d 233, affirmed 32 N.Y.3d 1116 [2018]. The “as contained within” requirement comes from Parker, wherein plaintiff alleged that he developed AML as a result of exposure to benzene in gasoline from his employment at a gasoline service station. Id. at 7 N.Y.3d 434. There, plaintiff produced the reports of two experts, who both generally concluded plaintiff contracted AML as a result of his personal occupational exposure to benzene, based on studies that linked benzene exposure to AML. The Court o