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NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
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Index No. 815818/2020
In Re: EIGHTH JUDICIAL DISTRICT
ASBESTOS LITIGATION
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PATSY YOUNG,
Plaintiff,
-against-
AVENTIS INC., et al.,
Defendants.
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________________________________
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT
COLGATE PALMOLIVE COMPANY’S
MOTION FOR SUMMARY JUDGMENT
________________________________
Respectfully submitted,
LEAH KAGAN
NY Bar No. 4822177
SIMON GREENSTONE PANATIER, P.C.
420 Lexington Avenue, Suite 2848
New York, New York 10170
212-634-1690
lkagan@sgptrial.com
Attorney for Plaintiff
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Table of Contents
PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................ 2
ARGUMENT .................................................................................................................................. 2
I. Summary Judgment Standard..................................................................................... 2
II. Colgate Is Not Entitled to Summary Judgment For Lack of Causation. ................ 4
A. Colgate Fails to Make a Prima Facie Showing that Cashmere Bouquet Could Not
Have Contributed to Causing Patsy Young’s Mesothelioma. .............................. 4
B. Plaintiff’s Causation Evidence Is Admissible and Establishes a Genuine Issue of
Material Fact. ........................................................................................................ 7
III. Colgate Is Not Entitled to Summary Judgment on Plaintiff’s Third Cause of
Action. ....................................................................................................................... 20
IV. Colgate Is Not Entitled to Summary Judgment on Punitive Damages. .............. 21
A. Colgate Has Failed to Make a Prima Facie Showing that It Is Entitled to Summary
Judgment on Plaintiff’s Punitive Damages Claim.............................................. 22
B. Plaintiff’s Evidence Raises Multiple Issues of Material Fact. ........................... 23
CONCLUSION............................................................................................................................. 25
ii
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PRELIMINARY STATEMENT
Plaintiff Patsy Young (“Plaintiff” or “Ms. Young”) has malignant peritoneal mesothelioma
caused by her exposure to asbestos in Cashmere Bouquet talcum powder that she was exposed to
thousands of times over many years. Defendant Colgate Palmolive Company (“Colgate”),
manufacturer of Cashmere Bouquet, filed a motion for summary judgment seeking dismissal of all
Plaintiff’s claims for lack of causation. Colgate further asserts that Plaintiff’s claims for fraud and
conspiracy should be dismissed because they are not pled with sufficient particularity. Finally,
Colgate argues that Plaintiff has no proof of egregious conduct warranting punitive damages.
Colgate’s motion fails. While Colgate does not contest that Ms. Young had years of
frequent exposures to Cashmere Bouquet talcum powder, Defendant suggests that Plaintiff has no
evidence to support a finding that she was exposed to asbestos through its talc in Cashmere
Bouquet in amounts sufficient to cause her disease. Colgate would have this Court ignore repeated
historic and contemporary testing of Cashmere Bouquet and the talc sources used in Cashmere
Bouquet (Italy and southwestern Montana during the relevant years), that did find asbestos.
Moreover, Colgate misrepresents the causation opinion offered by Plaintiff’s causation expert, Dr.
Jacqueline Moline. Using a generally-accepted methodology and well-supported by factual and
scientific evidence in the record, Dr. Moline opines that Ms. Young’s mesothelioma was caused
by her cumulative exposure to asbestos from Cashmere Bouquet at levels above those shown to
cause the disease. Dr. Moline’s causation opinions meet the standards set forth by the Court of
Appeals in Nemeth v Brenntag N. Am., 38 NY3d 336 (2022). The evidence is more than sufficient
to raise a fact question that Patsy Young was exposed to asbestos fibers as a result of her exposure
to Colgate’s Cashmere Bouquet in quantities that were sufficient to cause her mesothelioma.
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Further, summary judgment on Plaintiff’s fraud and conspiracy claims should be denied as
Colgate failed to meet its burden to make a prima facie showing that it is entitled to judgment as
a matter as a matter of law. Moreover, Plaintiff set forth substantial affirmative evidence sufficient
to establish the existence of material issues of fact regarding their punitive damages claim,
requiring a trial.
Accordingly, this Court should deny Defendant Colgate’s motion for summary judgment
in its entirety.
STATEMENT OF FACTS 1
Plaintiff incorporates by reference for her Statement of Facts, as if fully set forth herein,
her accompanying Statement of Material Facts in Opposition to Defendant Colgate Palmolive
Company’s Motion for Summary Judgment. 2
ARGUMENT
I. Summary Judgment Standard.
Summary judgment is “a drastic remedy which should only be employed when there is no
doubt as to the absence of triable issues.” Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974), accord
Ranneton Agway Cooperative, Inc. v. Briarcliff Farms, Inc., 17 N.Y.2d 57 (1966), Falk v.
Goodman, 7 N.Y.2d 87 (1959). The proponent of a motion for summary judgment must make a
prima facie showing of entitlement to judgment as a matter of law, tendering sufficient admissible
evidence to eliminate any material issues of fact from the case. Winegrad v. New York Univ. Med.
Ctr., 64 N.Y.2d 851, 853 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980).
1
Unless otherwise noted, all exhibits are attached to the concurrently filed Affirmation of Leah C. Kagan (“Kagan
Affirmation”). Plaintiff’s Statement of Material Facts are cited as “SMF” herein.
2
As the Court has not directed Plaintiff to respond to Defendant’s Statement of Material Facts pursuant to Uniform
Rule 202.8-g(a), Plaintiff is not providing enumerated responses but provides her own Statement of Material Facts in
rebuttal. Any facts in dispute only raise genuine issues of material fact to be tried.
2
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“[B]are conclusory assertions . . . with no factual relationship to the alleged injury” are insufficient
to “establish that the cause of action has no merit so as to entitle defendant[] to summary
judgment.” Pullman v. Silverman, 28 N.Y.3d 1060, 1062 (2016) (quoting Winegrad, 64 N.Y.2d at
853). If, and only if, it does so, the burden shifts to the opposing party to raise a material issue of
fact. Id. “Failure to make such showing requires denial of the motion, regardless of the sufficiency
of the opposing papers.” Winegrad v. NY Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985) (citing
Matter of Redemption Church of Christ v. Williams, 84 A.D.2d 648, 649; Greenberg v. Manlon
Realty, 43 A.D.2d 968, 969).
In considering a summary judgment motion, the Court should draw all reasonable
inferences in favor of the non-moving party and should not pass on issues of credibility. Vega v.
Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Assaf v. Ropog Cap Corp., 153 A.D.2d 520,
521-22 (1st Dept. 1989). A defendant cannot obtain summary judgment simply by “pointing to
gaps in plaintiffs’ proof.” Ricci v. A.O. Smith Water Products, 143 A.D.3d 516, 516 (1st Dep’t
2016). If a defendant shows that the plaintiff’s cause of action has no merit and that its product could
not have contributed to the causation of the plaintiff’s injuries, plaintiff must show facts sufficient
to raise a fact issue concerning the defendant’s liability. CPLR § 3212; Root v. E. Refractories Co.,
13 A.D.3d 1187, 1188 (4th Dep’t 2004); Shuman v. Abex Corp., 266 A.D.2d 878, 879 (4th Dep’t
1999). “Summary judgment should not be granted where there is any doubt as to the existence of
a factual issue or where the existence of a factual issue is arguable.” Matter of NY City Asbestos
Litig., 33 N.Y.3d 20, 25 (2019) (quoting Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 315
(2004)).
Colgate failed to show it is entitled to judgment as a matter of law on any of Plaintiff’s
claims. Moreover, Plaintiff provides more than sufficient evidence to raise multiple triable issues.
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II. Colgate Is Not Entitled to Summary Judgment For Lack of Causation.
Colgate seeks summary judgment based on Plaintiff’s alleged failure to establish that Ms.
Young’s mesothelioma was caused by exposure to Cashmere Bouquet.
At the summary judgment stage, only when a defendant makes a prima facie showing that its
product could not have contributed to the causation of plaintiff’s injury, must plaintiff allege facts to
raise a fact issue concerning the defendant’s liability. As the party moving for summary judgment,
Colgate has the burden to tender sufficient admissible evidence to demonstrate the absence of any
material issues of fact as to causation. Matter of New York City Asbestosis Litig., 33 N.Y.3d 20, 25-
26, 99 N.Y.S.3d 734, 123 N.E.3d 218 (2019). Colgate cannot meet its burden by merely pointing to
weaknesses or gaps in Plaintiff’s case, but rather it must affirmatively prove, as a matter of law, that
there was no causation. Dyer v Amchem Prods. Inc., 207 A.D.3d 408 (1st Dep’t 2022). Before Plaintiff
is required to provide any evidence to raise an issue of fact, Colgate must unequivocally establish that
she was not exposed to asbestos from its talc, or that the level of her exposure was not sufficient to
contribute to her development of mesothelioma. Matter of New York City Asbestos Litig., 122 A.D.3d
520, 521 (1st Dep’t 2014). “The fact that some talc might be asbestos-free does not eliminate the
possibility that plaintiff was exposed to defendant's asbestos containing product.” Rothlein v. Am. Intl.
Indus., 2020 NY Slip Op 30124[U], *4 (Sup Ct, NY County 2020) (citing In re New York City
Asbestos Litigation, 53 Misc. 3d 579, 595 (Sup. Ct., NY County 2016)).
A. Colgate Fails to Make a Prima Facie Showing that Cashmere Bouquet Could
Not Have Contributed to Causing Patsy Young’s Mesothelioma.
Colgate does not affirmatively demonstrate that it is entitled to judgment as a matter of
law. Plaintiff notes that Colgate does not dispute Ms. Young’s diagnosis or her exposure to
Cashmere Bouquet. Nor does Colgate challenge the voluminous test results demonstrating
asbestos in Cashmere Bouquet as well as the talc source ores.
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As the party moving for summary judgment, Colgate has the burden to tender sufficient
admissible evidence to demonstrate the absence of any material issues of fact as to causation.
Matter of New York City Asbestosis Litig., 33 NY3d 20, 25-26, 99 N.Y.S.3d 734, 123 N.E.3d 218
(2019). Colgate has failed to unequivocally establish that Ms. Young was not exposed to asbestos
from its talc, or that the level of her exposure was not sufficient to contribute to her development
of mesothelioma, requiring denial of the motion, “regardless of the sufficiency of the opposing
papers.” Winegrad v. NY Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985) (citing Matter of Redemption
Church of Christ v. Williams, 84 A.D.2d 648, 649; Greenberg v. Manlon Realty, 43 A.D.2d 968,
969). Colgate cannot obtain summary judgment simply by "pointing to gaps in plaintiffs' proof."
Ricci v. A.O. Smith Water Products, 143 AD 3d 516, 516 (1st Dept. 2016). Yet that is precisely
what Colgate attempts to do, arguing that the lack of published epidemiology studies regarding
exposures to asbestos through consumer usage of cosmetic products and the development of
mesothelioma is dispositive of the general causation question. 3 But absence of proof is not proof
of absence. 4 Moreover, an epidemiological study of cosmetic talc users is not necessary to be able
to conclude that an individual’s exposure to asbestos in cosmetic talc can be a cause of disease.
Indeed, conducting such a study would be nearly impossible in light of the rarity of the disease, its
lengthy latency, and the difficulty in obtaining accurate exposure histories.
3
Defendants point to a handful of studies on Italian talc miners and millers as evidence that there is no causal
relationship between exposure to talc and mesothelioma, but the studies lack statistical power and are not reliable due
to their inadequate sample size, selection criteria, and the manner in which the data has been reported. SMF Nos. 58-
65.
4
Ex. 137, Welch, et al. Asbestos Exposure Causes Mesothelioma, but Not This Asbestos Exposure: An Amicus Brief
to the Michigan Supreme Court, Intl J Occ Enviro Health (2007) at 321 (“There is a difference between a truly negative
result and a non-positive result. A true negative study must be large, sensitive, and contain accurate exposure data.
Even then, the study will be negative only with respect to the exposure level studied.”)
5
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Colgate offers the opinion of its expert industrial hygienist, Dr. Jennifer Sahmel (and the
conclusory agreement of its expert pulmonologist, Dr. David Weill). 5 "[B]are conclusory
assertions . . . with no factual relationship to the alleged injury" are insufficient to "establish that
the cause of action has no merit so as to entitle defendant[] to summary judgment." Pullman v
Silverman, 28 NY3d 1060, 1062 (2016) (quoting Winegrad, 64 NY2d at 853). Moreover, expert
opinions which are "contingent, speculative, or merely possible" lack probative force and are,
therefore, inadmissible. Matott v. Ward, 48 N.Y.2d 455, 461 (1979). "Summary judgment should
not be granted where there is any doubt as to the existence of a factual issue or where the existence
of a factual issue is arguable." Matter of NY City Asbestos Litig., 33 NY3d 20, 25 (2019) (quoting
Forrest v Jewish Guild for the Blind, 3 NY3d 295, 315 (2004)).
While Dr. Sahmel employs a facially-similar methodology to that used by Plaintiff’s
expert, Dr. Sahmel’s is based on pure speculation. For example, Dr. Sahmel calculates Ms.
Young’s cumulative dose based on an unfounded assumption that the Cashmere Bouquet she used
or was exposed to contained 0.1% asbestos. Moreover, she rejected a peer-reviewed, published
exposure simulation performed using Cashmere Bouquet applied with a puff similar to Ms.
Young’s, her mother’s and her sister’s application. 6 Significantly, Dr. Sahmel fails to provide any
foundational basis for her opinion that exposure to asbestos at levels analogous to Ms. Young’s is
not a substantial factor in causing mesothelioma. She relies on a comparison to lifetime “ambient”
exposure levels and OSHA occupational permissible exposure limits identify a minimum level of
exposure to respirable asbestos that would suffice to cause Ms. Young’s mesothelioma. But the
Court of Appeals has expressly held that standards promulgated by regulatory agencies as
5
Dr. Sahmel’s report is attached as Exhibit 8 to Colgate’s Affirmation in support of its Motion for Summary Judgment,
signed by Virginia Squitieri.
6
See Ex. 33, Gordon, et al., Asbestos in commercial cosmetic talcum powder as a cause of mesothelioma in women,
(2014).
6
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protective measures are not adequate to demonstrate legal causation. Nemeth v Brenntag N. Am.,
38 NY3d at345-346; Parker v Mobil Oil Corp., 7 NY3d 434, 450 (2006).
Colgate has not shown that Plaintiff’s causes of action have no merit and that its Cashmere
Bouquet could not have contributed to the causation of Ms. Young’s malignant peritoneal
mesothelioma. CPLR § 3212; Root v E. Refractories Co., 13 AD3d 1187, 1188 (4th Dept 2004);
Shuman v Abex Corp., 266 AD2d 878, 879 (4th Dept 1999). It has failed to submit sufficient
admissible evidence to eliminate any material issues of fact from the case. As a result, Colgate has
not met its burden to make a prima facie showing that it is entitled to judgment a a matter of law.
Summary judgment should be denied.
B. Plaintiff’s Causation Evidence Is Admissible and Establishes a Genuine Issue of
Material Fact.
Because Colgate failed to make a prima facie showing that its talc could not have contributed
to Ms. Young’s development of mesothelioma, the burden should not shift to Plaintiff. Nevertheless,
Colgate primarily makes two arguments: (1) that general causation does not exist because there
are no epidemiological studies showing a causal relationship between consumer exposure to
cosmetic talcum powder and mesothelioma; and (2) the opinions of Plaintiff’s causation expert,
Dr. Jacqueline Moline, are insufficient to establish specific causation under Nemeth. In considering
a summary judgment motion, the Court should draw all reasonable inferences in favor of the non-
moving party and should not pass on issues of credibility. Vega v Restani Constr. Corp., 18 NY3d
499, 503 (2012); Assaf v. Ropog Cap Corp., 153 A.D.2d 520, 521-22 (1st Dept. 1989). Here,
Plaintiff provides sufficient evidence to raise material issues of fact with regard to general and
specific causation.
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1. Proving Causation Under New York Law
In order to support a case of asbestos-related personal injury in New York, the law requires
the plaintiff to prove that she was exposed to the defendant’s product. See Root v. E. Refractories Co.,
13 A.D.3d 1187, 1188, 787 N.Y.S.2d 586 (4th Dep’t 2004) (citing Eighth Jud. Dist. Asbestos Litig.
(Heckel), 269 A.D.2d at 750) and Comeau, 216 A.D.2d at 79, 628 N.Y.S.2d at 73 (1st Dep’t 1995)).
At trial, the plaintiff has the burden of proving that it is more likely than not that this exposure was a
substantial factor in causing her injuries. Dominick v. Charles Millar & Son Co., 149 A.D.3d 1554,
1555, 54 N.Y.S.3d 233, (4th Dep’t 2017) (citing Barnhard v. Cybex Intl., Inc., 89 A.D.3d 1554,
1555, 933 NYS2d 794 (2011)). The plaintiff, however, is not required to demonstrate that the precise
manner in which the accident happened, or the extent of her injury, was foreseeable. Peevey v.
Burgess, 192 A.D.2d 1115, 1116, 596 N.Y.S.2d 250, (4th Dep’t 1993) (citing Restatement
[Second] of Torts § 435 [2]; Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315, 434
N.Y.S.2d 166, 169 (1980)). "The fact that some talc might be asbestos-free does not eliminate the
possibility that plaintiff was exposed to defendant's asbestos containing product." Rothlein v Am.
Intl. Indus., 2020 NY Slip Op 30124[U], *4 (Sup Ct, NY County 2020) (citing In re New York
City Asbestos Litigation, 53 Misc. 3d 579, 595 (Sup. Ct., NY County 2016)).
Under the Frye and Parker tests, expert opinion is admissible only if it comports with
“generally accepted standards” in the scientific community and rests on a proper foundation. Not
only must the Court determine whether the methods employed by an expert are generally accepted
in the scientific community, but further, under Parker, the Court must “determine whether the
accepted methods were appropriately employed in a particular case.” Parker, 7 N.Y. 3d at 477;
see also Wesley, 83 N.Y.2d at 435-36 (Kaye, C.J., concurring); Fraser v. 301-52 Townhouse Corp.,
57 A.D.3d 416, 418 (1st Dept, 2008) (excluding expert testimony under both the Frye and Parker
inquiries); see also Drago v. Tishman Constr. Co. of N.Y., 4 Misc. 3d 354, 360 (N.Y. Sup. Ct.,
8
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2004) (“Either in the alternative or in addition [to a Frye challenge], the challenge may assert that
some practical deficiency renders testimony about scientific data or opinion inadmissible and
request a trial foundation inquiry.”). Under this standard, the proponent of expert testimony bears
the burden of “lay[ing] a proper foundation establishing that the processes and methods employed
by the expert in formulating his or her opinions adhere to accepted standards of reliability within
the field.” People v. Wilson, 133 A.D.2d 179, 183 (2nd Dept, 1987).
The Court of Appeals recently reaffirmed the requirements for the admissibility of expert
causation opinions in toxic tort cases. Nemeth v Brenntag N. Am., 2022 N.Y. LEXIS 820, 2022
NY Slip Op 02769 (2022). Specifically, “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 the plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific
causation).” Nemeth, 2022 N.Y. LEXIS 820, at *6-7 (quoting Parker, 7 NY3d at 448). The Court
noted that while quantification of exposure levels is not always necessary, expert testimony must
still establish sufficient exposure to the toxin based on “generally accepted methodologies.” Id. at
*7-8. Testimony that “work[s] backwards from reported symptoms to divine an otherwise
unknown concentration” of a toxin to prove causation is insufficient. Id. at *8 (quoting Parker, 7
NY3d at 449). "[T]he 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". Matter of NY City Asbestos Litig., 148 AD3d 233, 236 (1st Dept, 2017).
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2. Dr. Moline’s Expert Opinion Is Reliable and Comports with Generally-
Accepted Standards in the Scientific Community.
a. The Estimated Dose Calculation Method is Generally Accepted.
Dr. Moline performed a quantitative analysis of Ms. Young’s exposure and compared it to
exposure levels shown to cause mesothelioma in the published literature. SMF Nos. 67-75. As
discussed in greater detail infra, Dr. Moline performed upon a simple calculation to determine Ms.
Young’s estimated cumulative or lifetime exposure. Id.
CECENV = CTask x ET x EF x ED x CF
CECENV = Cumulative asbestos exposure over time on an environmental basis (f/cc-yr)
CTask = Task-based personal airborne fiber concentration (f/cc)
ET = Exposure time (minutes / use)
EF = Exposure frequency (number of uses / year)
ED = Exposure duration (years)
CF = Conversion factor for the number of total minutes in a year (year/minutes)
Dr. Moline relied upon Ms. Young’s exposure history to determine the frequency and duration of
her exposures to Cashmere Bouquet, and on peer-reviewed, published exposure simulations to
provide airborne fiber concentrations per use. SMF Nos. 70-72.
Dr. Moline used a generally-accepted dose calculation formula, relying upon reliable
sources of information generally relied upon by the scientific community. Indeed, Colgate’s expert
industrial hygienist, Dr. Jennifer Sahmel, also calculated Ms. Young’s cumulative asbestos
exposure over time, expressed as fibers per cubic centimeter-years (f/cc-yr), using the same
formula: 7
b. Dr. Moline’s Dose Calculation Rests On A Proper Foundation.
Based on historic and recent analyses published in the medical and scientific literature, as
well as industry, government and private laboratory testing of Cashmere Bouquet, of the talc from
7
See Exhibit 8 to Colgate’s Affirmation in support of its Motion for Summary Judgment, signed by Virginia Squitieri..
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the source mines used in Cashmere Bouquet (Italy and southwestern Montana) during Ms.
Young’s exposure period, and of other finished powder product using talc from the same mines,
Dr. Moline concluded that Ms. Young’s use of Cashmere Bouquet exposed her to amphibole and
chrysotile asbestos. SMF Nos. 67-78.
Dr. Moline quantified a conservative estimate of Ms. Young’s total dose from her exposure
to Cashmere Bouquet talcum powder. Because Ms. Young did not wear a dust collector during her
use of and exposure to Cashmere Bouquet in the 1970s, Dr. Moline relied upon data from exposure
simulation studies of typical talcum powder use, and data published in peer-reviewed literature to
determine whether Ms. Young’s use of Cashmere Bouquet exposed her to released respirable
asbestos fibers. SMF Nos. 71-72. Dr. Moline considered the Gordon 2014, Anderson 2017 8,
Steffen 2020 exposure simulation studies that measured asbestos exposures resulting from the
application of consumer talcum powder. SMF No. 72. Notably, Gordon 2014 measured asbestos
exposures from the use of Cashmere Bouquet with a puff – like Ms. Young’s use. Id. Relying on
the published data, Dr. Moline calculated the mean asbestos exposure during application of
Cashmere Bouquet powder using a puff applicator to be 4.25 f/cc. Id.
. Based on Ms. Young’s exposure history as set forth in her deposition testimony, Dr.
Moline calculated Ms. Young’s lifetime exposure asbestos levels from her exposure to Cashmere
Bouquet talcum powder products. She determined Ms. Young’s total Cashmere Bouquet exposure
time from her personal use (33 hours or 0.02 occupational years). SMF No. 70. Dr. Moline’s
exposure time is very conservative as it does not include Ms. Young’s bystander exposures from
her mother’s or her sister’s regular and frequent use of Cashmere Bouquet in her presence. Id.
8
Dr. Moline noted that the Anderson study was designed and manipulated to decrease the respirable fiber data
collected, but it was included it as a data point as an underestimation of what a person would be exposed to while
applying talcum powder. SMF No. 72, n.203.
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Dr. Moline then calculated Ms. Young’s cumulative dose of asbestos from Cashmere
Bouquet to be at least 0.09 f/cc-yrs (4.25 f/cc x 0.02 years). SMF No. 73. Based on Dr. Longo’s
detection of asbestos in 15 of 15 containers of Cashmere Bouquet made with Italian and Montana
talcs, Dr. Gordon’s detection of asbestos in 50 of 50 containers of Cashmere Bouquet, and Dr.
David Madigan, Plaintiffs’ expert statistician, probability calculations, it is assumed that every
container of Cashmere Bouquet that Ms. Young used contained asbestos. Id. Dr. Moline performed
similar calculations for Ms. Young’s exposures from her exposure to other talcum powder
products, and determined that Ms. Young’s total lifetime dose of asbestos from her use of talcum
powder is 0.62 f/cc-yrs. 9 Id.
The causal relationship between exposure to asbestos and mesothelioma “is so firmly
established in the scientific literature that it is accepted as a scientific ‘fact.’” SMF No. 74. All
asbestos varieties have been shown to contribute to the development of pleural and peritoneal
mesothelioma. Id. As set forth in numerous studies, papers, articles, and other reliable materials,
and consistent with the consensus of the international scientific and medical community, a brief or
low level of exposure to asbestos has been shown to be capable of causing pleural and peritoneal
mesotheliomas. Id.
Although there is no safe level of exposure to asbestos, minimum threshold levels that are
sufficient to cause mesothelioma have been reported in the medical/scientific literature. To
determine whether mesotheliomas have been shown to occur at levels similar to Ms. Young’s
exposure through her use of Cashmere Bouquet powder, Dr. Moline relied upon published, peer-
reviewed studies that demonstrate the dose-response relationship between exposures to asbestos
and mesothelioma, including Lacourt 2014, Rodelsperger 2001, Rolland 206, and Jiang 2017:
9
Ms. Young had no other known asbestos exposures.
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Study Fiber Type Exposure Range Increased Risk
(in total fiber years)
Lacourt Mixed >0 – 0.1 6.9 (women)
4.0 (men)
Rodelsperger Mixed >0 - 0.15 7.9
Rolland Mixed >0 – 0.07 2.8
Jiang Chrysotile (Textile) >0 – 0.5 28
SMF No. 73. These studies demonstrated that asbestos exposures even at lower levels significantly
increase the risk of mesothelioma. Id. For example, Rodelsperger 2001 demonstrates that for
cumulative asbestos exposures greater than 0 but less than 0.15 f/yr, the risk of pleural or peritoneal
mesothelioma increases to 7.9 (with a 99% CI of 2.1-29.5). Id. Lacourt, Rolland, and Jiang also
demonstrate minimum cumulative exposure ranges sufficient to cause mesothelioma. 10 Id. At her
conservative lifetime dose from Cashmere Bouquet of 0.09 f/yrs, the published, peer-reviewed
studies show that Ms. Young’s risk of mesothelioma more than doubled.
3. Dr. Moline’s Opinion Meets the Parker/Nemeth Standard for Expert
Causation Testimony.
In Parker, the Court of Appeals set forth a standard for the admissibility of expert opinions
on toxic causation, requiring the expert to show both general causation (“that the toxin is capable
of causing the particular illness”) and specific causation (“that the plaintiff was exposed to
sufficient levels of the toxin to cause the illness[.]”) 7 N.Y.3d at 448. The Court was mindful that
“a plaintiff’s exposure to a toxin will be difficult or impossible to quantify by pinpointing an exact
numerical standard,” and recognized that there are several ways that an expert may demonstrate
causation:
10
While Lacourt was specific to pleural mesotheliomas, Rodelsperger, Rolland, and Jiang studied both pleural and
peritoneal subjects. SMF No. 75, n.217..
13
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For instance, amici note that the intensity of exposure to benzene may be
more important than a cumulative dose for determining the risk of
developing leukemia. Moreover, exposure can be estimated through the
use of mathematical modeling by taking a plaintiff's work history into
account to estimate the exposure to a toxin. It is also possible that more
qualitative means could be used to express a plaintiff's exposure.
Comparison to the exposure levels of subjects of other studies could be
helpful provided that the expert made a specific comparison sufficient to
show how the plaintiff's exposure level related to those of the other
subjects. These, along with others, could be potentially acceptable ways
to demonstrate causation if they were found to be generally accepted as
reliable in the scientific community.
Parker at 449. However, regardless of the method used, demonstration of specific causation
requires “a scientific expression of the plaintiff’s exposure level.” Id.
The Court of Appeals recently reaffirmed Parker in an asbestos case:
[W]e 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, 857
N.E.2d 1114, 824 N.Y.S.2d 584 (2006)).
Nemeth, 38 NY3d at 342. In Nemeth, the Court of Appeals held that Dr. Moline’s causation opinion
given at trial five years prior did not meet the requirements for establishing exposure to a toxin in
an amount sufficient to cause the decedent’s mesothelioma. Id. at *2. The Court found that Dr.
Moline had failed to set forth a scientific expression of the minimum lifetime exposure to asbestos
that would have been sufficient to cause the decedent’s mesothelioma. Id. at *1. 11
While Plaintiff disagrees with the Court of Appeals’ decision and characterization of Dr.
Moline’s opinion in Nemeth, her causation opinions in this case unquestionably meet the
Parker/Nemeth standard. Dr. Moline has undertaken a quantitative analysis of causation in this
11
Following the Nemeth decision, the First Department Appellate Division held that the plaintiff’s causation experts
in four separate asbestos cases had failed to meet the requirements set forth in Parker and reaffirmed in Nemeth. The
decisions are not binding on this Court.
14
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case, providing a numerical cumulative exposure level to compare against levels demonstrated to
cause mesothelioma in the medical/scientific literature. Any issues the Court of Appeals had with
Dr. Moline’s trial testimony in Nemeth do not apply to her opinions in this case.
a. Dr. Moline Offers Reliable and Generally Accepted Expert
Testimony that Asbestos is Capable of Causing Mesothelioma,
Including at Low Levels (General Causation).
Unable to dispute that asbestos causes mesothelioma, Colgate argues that Plaintiff has
failed to provided evidence of general causation because of the absence of epidemiological studies
showing a causal relationship between consumer exposure to cosmetic talcum powder and
mesothelioma. To the extent Colgate argues that Dr. Moline has failed to show that talc causes
mesothelioma, such an argument should be disregarded because the toxin at issue is asbestos
fibers. Dr. Moline relies upon studies of disease incidence resulting from similar levels of
inhalation of asbestos fibers. Her causation opinions are based upon Ms. Young’s inhalation of
asbestos fibers. Studies of disease incidence resulting from similar levels of inhalation of asbestos
fibers are unquestionably relevant, instructive, and relied upon by the scientific community.
Moreover, Dr. Moline has identified and relied upon numerous articles, statements, reports
and studies that have tied exposure to asbestos in talc to mesothelioma. SMF 77. The consideration
of such reports is widely accepted in mesothelioma cases because of the tremendous difficulty in
conducting epidemiologic studies with sufficient power. “Proper scientific inquiry not only can
consider these reports, but, in fact, must consider them.” 12 Dr. Moline stays abreast of latest
medical/scientific literature, as demonstrated by her voluminous reliance list. 13
Dr. Moline’s general causation opinions are further supported by Plaintiff’s expert
epidemiologist and statistician, Dr. David Madigan. SMF No. 78. Dr. Madigan applied the nine
12
Ex. 137, Welch, et al. (2007) at 322.
13
Ex. 34, Moline Aff., at attached Ex. B, Moline Reliance List.
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Bradford Hill criteria to determine whether lifetime asbestos-exposure levels as found in cosmetic
talc contribute to the development of pleural and peritoneal mesothelioma. Id. The Bradford Hill
criteria are “part of a sound methodology generally accepted by the scientific community” that
considers all the evidence of causality, including aspects of toxicology and biology in addition to
epidemiology. 14 See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 718 (Tex. 1997).
After discussing each of the Bradford Hill criteria, Dr. Madigan concluded that there is significant
evidence that lifetime asbestos exposures as found in the regular use of cosmetic talc can cause or
contribute to the development of pleural and peritoneal mesothelioma. SMF No. 78. His opinions
are confirmed in the literature: “[T]he evidence of causation using the Hill criteria from all the
toxicological, biological and human studies is compelling. Use of talc as a cosmetic agent on adult
or babies is elevating the risk of mesothelioma.” 15
Dr. Moline has satisfied the general causation requirement of Parker and Nemeth. In
Parker, the Court of Appeals specified that “[c]omparison to the exposure levels of subjects of
other studies could be helpful provided that the expert made a specific comparison sufficient to
show how the plaintiff's exposure level related to those of the other subjects.” Parker, supra, at
449. The ample evidence in the record, including the widely-accepted scientific literature and data
summarized in Dr. Moline’s reports, deposition testimony and affirmation, demonstrates that
exposure to asbestos during the application of talcum powder causes mesothelioma. Dr. Moline’s
reliance on studies of comparable asbestos exposures, coupled with various articles, case reports
and studies demonstrating mesotheliomas caused by exposure to asbestos-containing talcum
powder, is precis
Preview
FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE ------------------------------------------------------------------X Index No. 815818/2020 In Re: EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION ------------------------------------------------------------------X PATSY YOUNG, Plaintiff, -against- AVENTIS INC., et al., Defendants. ------------------------------------------------------------------X ________________________________ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT COLGATE PALMOLIVE COMPANY’S MOTION FOR SUMMARY JUDGMENT ________________________________ Respectfully submitted, LEAH KAGAN NY Bar No. 4822177 SIMON GREENSTONE PANATIER, P.C. 420 Lexington Avenue, Suite 2848 New York, New York 10170 212-634-1690 lkagan@sgptrial.com Attorney for Plaintiff 1 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 Table of Contents PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................ 2 ARGUMENT .................................................................................................................................. 2 I. Summary Judgment Standard..................................................................................... 2 II. Colgate Is Not Entitled to Summary Judgment For Lack of Causation. ................ 4 A. Colgate Fails to Make a Prima Facie Showing that Cashmere Bouquet Could Not Have Contributed to Causing Patsy Young’s Mesothelioma. .............................. 4 B. Plaintiff’s Causation Evidence Is Admissible and Establishes a Genuine Issue of Material Fact. ........................................................................................................ 7 III. Colgate Is Not Entitled to Summary Judgment on Plaintiff’s Third Cause of Action. ....................................................................................................................... 20 IV. Colgate Is Not Entitled to Summary Judgment on Punitive Damages. .............. 21 A. Colgate Has Failed to Make a Prima Facie Showing that It Is Entitled to Summary Judgment on Plaintiff’s Punitive Damages Claim.............................................. 22 B. Plaintiff’s Evidence Raises Multiple Issues of Material Fact. ........................... 23 CONCLUSION............................................................................................................................. 25 ii 2 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 PRELIMINARY STATEMENT Plaintiff Patsy Young (“Plaintiff” or “Ms. Young”) has malignant peritoneal mesothelioma caused by her exposure to asbestos in Cashmere Bouquet talcum powder that she was exposed to thousands of times over many years. Defendant Colgate Palmolive Company (“Colgate”), manufacturer of Cashmere Bouquet, filed a motion for summary judgment seeking dismissal of all Plaintiff’s claims for lack of causation. Colgate further asserts that Plaintiff’s claims for fraud and conspiracy should be dismissed because they are not pled with sufficient particularity. Finally, Colgate argues that Plaintiff has no proof of egregious conduct warranting punitive damages. Colgate’s motion fails. While Colgate does not contest that Ms. Young had years of frequent exposures to Cashmere Bouquet talcum powder, Defendant suggests that Plaintiff has no evidence to support a finding that she was exposed to asbestos through its talc in Cashmere Bouquet in amounts sufficient to cause her disease. Colgate would have this Court ignore repeated historic and contemporary testing of Cashmere Bouquet and the talc sources used in Cashmere Bouquet (Italy and southwestern Montana during the relevant years), that did find asbestos. Moreover, Colgate misrepresents the causation opinion offered by Plaintiff’s causation expert, Dr. Jacqueline Moline. Using a generally-accepted methodology and well-supported by factual and scientific evidence in the record, Dr. Moline opines that Ms. Young’s mesothelioma was caused by her cumulative exposure to asbestos from Cashmere Bouquet at levels above those shown to cause the disease. Dr. Moline’s causation opinions meet the standards set forth by the Court of Appeals in Nemeth v Brenntag N. Am., 38 NY3d 336 (2022). The evidence is more than sufficient to raise a fact question that Patsy Young was exposed to asbestos fibers as a result of her exposure to Colgate’s Cashmere Bouquet in quantities that were sufficient to cause her mesothelioma. 1 3 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 Further, summary judgment on Plaintiff’s fraud and conspiracy claims should be denied as Colgate failed to meet its burden to make a prima facie showing that it is entitled to judgment as a matter as a matter of law. Moreover, Plaintiff set forth substantial affirmative evidence sufficient to establish the existence of material issues of fact regarding their punitive damages claim, requiring a trial. Accordingly, this Court should deny Defendant Colgate’s motion for summary judgment in its entirety. STATEMENT OF FACTS 1 Plaintiff incorporates by reference for her Statement of Facts, as if fully set forth herein, her accompanying Statement of Material Facts in Opposition to Defendant Colgate Palmolive Company’s Motion for Summary Judgment. 2 ARGUMENT I. Summary Judgment Standard. Summary judgment is “a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues.” Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974), accord Ranneton Agway Cooperative, Inc. v. Briarcliff Farms, Inc., 17 N.Y.2d 57 (1966), Falk v. Goodman, 7 N.Y.2d 87 (1959). The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient admissible evidence to eliminate any material issues of fact from the case. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). 1 Unless otherwise noted, all exhibits are attached to the concurrently filed Affirmation of Leah C. Kagan (“Kagan Affirmation”). Plaintiff’s Statement of Material Facts are cited as “SMF” herein. 2 As the Court has not directed Plaintiff to respond to Defendant’s Statement of Material Facts pursuant to Uniform Rule 202.8-g(a), Plaintiff is not providing enumerated responses but provides her own Statement of Material Facts in rebuttal. Any facts in dispute only raise genuine issues of material fact to be tried. 2 4 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 “[B]are conclusory assertions . . . with no factual relationship to the alleged injury” are insufficient to “establish that the cause of action has no merit so as to entitle defendant[] to summary judgment.” Pullman v. Silverman, 28 N.Y.3d 1060, 1062 (2016) (quoting Winegrad, 64 N.Y.2d at 853). If, and only if, it does so, the burden shifts to the opposing party to raise a material issue of fact. Id. “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.” Winegrad v. NY Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985) (citing Matter of Redemption Church of Christ v. Williams, 84 A.D.2d 648, 649; Greenberg v. Manlon Realty, 43 A.D.2d 968, 969). In considering a summary judgment motion, the Court should draw all reasonable inferences in favor of the non-moving party and should not pass on issues of credibility. Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Assaf v. Ropog Cap Corp., 153 A.D.2d 520, 521-22 (1st Dept. 1989). A defendant cannot obtain summary judgment simply by “pointing to gaps in plaintiffs’ proof.” Ricci v. A.O. Smith Water Products, 143 A.D.3d 516, 516 (1st Dep’t 2016). If a defendant shows that the plaintiff’s cause of action has no merit and that its product could not have contributed to the causation of the plaintiff’s injuries, plaintiff must show facts sufficient to raise a fact issue concerning the defendant’s liability. CPLR § 3212; Root v. E. Refractories Co., 13 A.D.3d 1187, 1188 (4th Dep’t 2004); Shuman v. Abex Corp., 266 A.D.2d 878, 879 (4th Dep’t 1999). “Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable.” Matter of NY City Asbestos Litig., 33 N.Y.3d 20, 25 (2019) (quoting Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 315 (2004)). Colgate failed to show it is entitled to judgment as a matter of law on any of Plaintiff’s claims. Moreover, Plaintiff provides more than sufficient evidence to raise multiple triable issues. 3 5 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 II. Colgate Is Not Entitled to Summary Judgment For Lack of Causation. Colgate seeks summary judgment based on Plaintiff’s alleged failure to establish that Ms. Young’s mesothelioma was caused by exposure to Cashmere Bouquet. At the summary judgment stage, only when a defendant makes a prima facie showing that its product could not have contributed to the causation of plaintiff’s injury, must plaintiff allege facts to raise a fact issue concerning the defendant’s liability. As the party moving for summary judgment, Colgate has the burden to tender sufficient admissible evidence to demonstrate the absence of any material issues of fact as to causation. Matter of New York City Asbestosis Litig., 33 N.Y.3d 20, 25- 26, 99 N.Y.S.3d 734, 123 N.E.3d 218 (2019). Colgate cannot meet its burden by merely pointing to weaknesses or gaps in Plaintiff’s case, but rather it must affirmatively prove, as a matter of law, that there was no causation. Dyer v Amchem Prods. Inc., 207 A.D.3d 408 (1st Dep’t 2022). Before Plaintiff is required to provide any evidence to raise an issue of fact, Colgate must unequivocally establish that she was not exposed to asbestos from its talc, or that the level of her exposure was not sufficient to contribute to her development of mesothelioma. Matter of New York City Asbestos Litig., 122 A.D.3d 520, 521 (1st Dep’t 2014). “The fact that some talc might be asbestos-free does not eliminate the possibility that plaintiff was exposed to defendant's asbestos containing product.” Rothlein v. Am. Intl. Indus., 2020 NY Slip Op 30124[U], *4 (Sup Ct, NY County 2020) (citing In re New York City Asbestos Litigation, 53 Misc. 3d 579, 595 (Sup. Ct., NY County 2016)). A. Colgate Fails to Make a Prima Facie Showing that Cashmere Bouquet Could Not Have Contributed to Causing Patsy Young’s Mesothelioma. Colgate does not affirmatively demonstrate that it is entitled to judgment as a matter of law. Plaintiff notes that Colgate does not dispute Ms. Young’s diagnosis or her exposure to Cashmere Bouquet. Nor does Colgate challenge the voluminous test results demonstrating asbestos in Cashmere Bouquet as well as the talc source ores. 4 6 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 As the party moving for summary judgment, Colgate has the burden to tender sufficient admissible evidence to demonstrate the absence of any material issues of fact as to causation. Matter of New York City Asbestosis Litig., 33 NY3d 20, 25-26, 99 N.Y.S.3d 734, 123 N.E.3d 218 (2019). Colgate has failed to unequivocally establish that Ms. Young was not exposed to asbestos from its talc, or that the level of her exposure was not sufficient to contribute to her development of mesothelioma, requiring denial of the motion, “regardless of the sufficiency of the opposing papers.” Winegrad v. NY Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985) (citing Matter of Redemption Church of Christ v. Williams, 84 A.D.2d 648, 649; Greenberg v. Manlon Realty, 43 A.D.2d 968, 969). Colgate cannot obtain summary judgment simply by "pointing to gaps in plaintiffs' proof." Ricci v. A.O. Smith Water Products, 143 AD 3d 516, 516 (1st Dept. 2016). Yet that is precisely what Colgate attempts to do, arguing that the lack of published epidemiology studies regarding exposures to asbestos through consumer usage of cosmetic products and the development of mesothelioma is dispositive of the general causation question. 3 But absence of proof is not proof of absence. 4 Moreover, an epidemiological study of cosmetic talc users is not necessary to be able to conclude that an individual’s exposure to asbestos in cosmetic talc can be a cause of disease. Indeed, conducting such a study would be nearly impossible in light of the rarity of the disease, its lengthy latency, and the difficulty in obtaining accurate exposure histories. 3 Defendants point to a handful of studies on Italian talc miners and millers as evidence that there is no causal relationship between exposure to talc and mesothelioma, but the studies lack statistical power and are not reliable due to their inadequate sample size, selection criteria, and the manner in which the data has been reported. SMF Nos. 58- 65. 4 Ex. 137, Welch, et al. Asbestos Exposure Causes Mesothelioma, but Not This Asbestos Exposure: An Amicus Brief to the Michigan Supreme Court, Intl J Occ Enviro Health (2007) at 321 (“There is a difference between a truly negative result and a non-positive result. A true negative study must be large, sensitive, and contain accurate exposure data. Even then, the study will be negative only with respect to the exposure level studied.”) 5 7 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 Colgate offers the opinion of its expert industrial hygienist, Dr. Jennifer Sahmel (and the conclusory agreement of its expert pulmonologist, Dr. David Weill). 5 "[B]are conclusory assertions . . . with no factual relationship to the alleged injury" are insufficient to "establish that the cause of action has no merit so as to entitle defendant[] to summary judgment." Pullman v Silverman, 28 NY3d 1060, 1062 (2016) (quoting Winegrad, 64 NY2d at 853). Moreover, expert opinions which are "contingent, speculative, or merely possible" lack probative force and are, therefore, inadmissible. Matott v. Ward, 48 N.Y.2d 455, 461 (1979). "Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable." Matter of NY City Asbestos Litig., 33 NY3d 20, 25 (2019) (quoting Forrest v Jewish Guild for the Blind, 3 NY3d 295, 315 (2004)). While Dr. Sahmel employs a facially-similar methodology to that used by Plaintiff’s expert, Dr. Sahmel’s is based on pure speculation. For example, Dr. Sahmel calculates Ms. Young’s cumulative dose based on an unfounded assumption that the Cashmere Bouquet she used or was exposed to contained 0.1% asbestos. Moreover, she rejected a peer-reviewed, published exposure simulation performed using Cashmere Bouquet applied with a puff similar to Ms. Young’s, her mother’s and her sister’s application. 6 Significantly, Dr. Sahmel fails to provide any foundational basis for her opinion that exposure to asbestos at levels analogous to Ms. Young’s is not a substantial factor in causing mesothelioma. She relies on a comparison to lifetime “ambient” exposure levels and OSHA occupational permissible exposure limits identify a minimum level of exposure to respirable asbestos that would suffice to cause Ms. Young’s mesothelioma. But the Court of Appeals has expressly held that standards promulgated by regulatory agencies as 5 Dr. Sahmel’s report is attached as Exhibit 8 to Colgate’s Affirmation in support of its Motion for Summary Judgment, signed by Virginia Squitieri. 6 See Ex. 33, Gordon, et al., Asbestos in commercial cosmetic talcum powder as a cause of mesothelioma in women, (2014). 6 8 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 protective measures are not adequate to demonstrate legal causation. Nemeth v Brenntag N. Am., 38 NY3d at345-346; Parker v Mobil Oil Corp., 7 NY3d 434, 450 (2006). Colgate has not shown that Plaintiff’s causes of action have no merit and that its Cashmere Bouquet could not have contributed to the causation of Ms. Young’s malignant peritoneal mesothelioma. CPLR § 3212; Root v E. Refractories Co., 13 AD3d 1187, 1188 (4th Dept 2004); Shuman v Abex Corp., 266 AD2d 878, 879 (4th Dept 1999). It has failed to submit sufficient admissible evidence to eliminate any material issues of fact from the case. As a result, Colgate has not met its burden to make a prima facie showing that it is entitled to judgment a a matter of law. Summary judgment should be denied. B. Plaintiff’s Causation Evidence Is Admissible and Establishes a Genuine Issue of Material Fact. Because Colgate failed to make a prima facie showing that its talc could not have contributed to Ms. Young’s development of mesothelioma, the burden should not shift to Plaintiff. Nevertheless, Colgate primarily makes two arguments: (1) that general causation does not exist because there are no epidemiological studies showing a causal relationship between consumer exposure to cosmetic talcum powder and mesothelioma; and (2) the opinions of Plaintiff’s causation expert, Dr. Jacqueline Moline, are insufficient to establish specific causation under Nemeth. In considering a summary judgment motion, the Court should draw all reasonable inferences in favor of the non- moving party and should not pass on issues of credibility. Vega v Restani Constr. Corp., 18 NY3d 499, 503 (2012); Assaf v. Ropog Cap Corp., 153 A.D.2d 520, 521-22 (1st Dept. 1989). Here, Plaintiff provides sufficient evidence to raise material issues of fact with regard to general and specific causation. 7 9 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 1. Proving Causation Under New York Law In order to support a case of asbestos-related personal injury in New York, the law requires the plaintiff to prove that she was exposed to the defendant’s product. See Root v. E. Refractories Co., 13 A.D.3d 1187, 1188, 787 N.Y.S.2d 586 (4th Dep’t 2004) (citing Eighth Jud. Dist. Asbestos Litig. (Heckel), 269 A.D.2d at 750) and Comeau, 216 A.D.2d at 79, 628 N.Y.S.2d at 73 (1st Dep’t 1995)). At trial, the plaintiff has the burden of proving that it is more likely than not that this exposure was a substantial factor in causing her injuries. Dominick v. Charles Millar & Son Co., 149 A.D.3d 1554, 1555, 54 N.Y.S.3d 233, (4th Dep’t 2017) (citing Barnhard v. Cybex Intl., Inc., 89 A.D.3d 1554, 1555, 933 NYS2d 794 (2011)). The plaintiff, however, is not required to demonstrate that the precise manner in which the accident happened, or the extent of her injury, was foreseeable. Peevey v. Burgess, 192 A.D.2d 1115, 1116, 596 N.Y.S.2d 250, (4th Dep’t 1993) (citing Restatement [Second] of Torts § 435 [2]; Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 169 (1980)). "The fact that some talc might be asbestos-free does not eliminate the possibility that plaintiff was exposed to defendant's asbestos containing product." Rothlein v Am. Intl. Indus., 2020 NY Slip Op 30124[U], *4 (Sup Ct, NY County 2020) (citing In re New York City Asbestos Litigation, 53 Misc. 3d 579, 595 (Sup. Ct., NY County 2016)). Under the Frye and Parker tests, expert opinion is admissible only if it comports with “generally accepted standards” in the scientific community and rests on a proper foundation. Not only must the Court determine whether the methods employed by an expert are generally accepted in the scientific community, but further, under Parker, the Court must “determine whether the accepted methods were appropriately employed in a particular case.” Parker, 7 N.Y. 3d at 477; see also Wesley, 83 N.Y.2d at 435-36 (Kaye, C.J., concurring); Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416, 418 (1st Dept, 2008) (excluding expert testimony under both the Frye and Parker inquiries); see also Drago v. Tishman Constr. Co. of N.Y., 4 Misc. 3d 354, 360 (N.Y. Sup. Ct., 8 10 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 2004) (“Either in the alternative or in addition [to a Frye challenge], the challenge may assert that some practical deficiency renders testimony about scientific data or opinion inadmissible and request a trial foundation inquiry.”). Under this standard, the proponent of expert testimony bears the burden of “lay[ing] a proper foundation establishing that the processes and methods employed by the expert in formulating his or her opinions adhere to accepted standards of reliability within the field.” People v. Wilson, 133 A.D.2d 179, 183 (2nd Dept, 1987). The Court of Appeals recently reaffirmed the requirements for the admissibility of expert causation opinions in toxic tort cases. Nemeth v Brenntag N. Am., 2022 N.Y. LEXIS 820, 2022 NY Slip Op 02769 (2022). Specifically, “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 the plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).” Nemeth, 2022 N.Y. LEXIS 820, at *6-7 (quoting Parker, 7 NY3d at 448). The Court noted that while quantification of exposure levels is not always necessary, expert testimony must still establish sufficient exposure to the toxin based on “generally accepted methodologies.” Id. at *7-8. Testimony that “work[s] backwards from reported symptoms to divine an otherwise unknown concentration” of a toxin to prove causation is insufficient. Id. at *8 (quoting Parker, 7 NY3d at 449). "[T]he 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". Matter of NY City Asbestos Litig., 148 AD3d 233, 236 (1st Dept, 2017). 9 11 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 2. Dr. Moline’s Expert Opinion Is Reliable and Comports with Generally- Accepted Standards in the Scientific Community. a. The Estimated Dose Calculation Method is Generally Accepted. Dr. Moline performed a quantitative analysis of Ms. Young’s exposure and compared it to exposure levels shown to cause mesothelioma in the published literature. SMF Nos. 67-75. As discussed in greater detail infra, Dr. Moline performed upon a simple calculation to determine Ms. Young’s estimated cumulative or lifetime exposure. Id. CECENV = CTask x ET x EF x ED x CF CECENV = Cumulative asbestos exposure over time on an environmental basis (f/cc-yr) CTask = Task-based personal airborne fiber concentration (f/cc) ET = Exposure time (minutes / use) EF = Exposure frequency (number of uses / year) ED = Exposure duration (years) CF = Conversion factor for the number of total minutes in a year (year/minutes) Dr. Moline relied upon Ms. Young’s exposure history to determine the frequency and duration of her exposures to Cashmere Bouquet, and on peer-reviewed, published exposure simulations to provide airborne fiber concentrations per use. SMF Nos. 70-72. Dr. Moline used a generally-accepted dose calculation formula, relying upon reliable sources of information generally relied upon by the scientific community. Indeed, Colgate’s expert industrial hygienist, Dr. Jennifer Sahmel, also calculated Ms. Young’s cumulative asbestos exposure over time, expressed as fibers per cubic centimeter-years (f/cc-yr), using the same formula: 7 b. Dr. Moline’s Dose Calculation Rests On A Proper Foundation. Based on historic and recent analyses published in the medical and scientific literature, as well as industry, government and private laboratory testing of Cashmere Bouquet, of the talc from 7 See Exhibit 8 to Colgate’s Affirmation in support of its Motion for Summary Judgment, signed by Virginia Squitieri.. 10 12 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 the source mines used in Cashmere Bouquet (Italy and southwestern Montana) during Ms. Young’s exposure period, and of other finished powder product using talc from the same mines, Dr. Moline concluded that Ms. Young’s use of Cashmere Bouquet exposed her to amphibole and chrysotile asbestos. SMF Nos. 67-78. Dr. Moline quantified a conservative estimate of Ms. Young’s total dose from her exposure to Cashmere Bouquet talcum powder. Because Ms. Young did not wear a dust collector during her use of and exposure to Cashmere Bouquet in the 1970s, Dr. Moline relied upon data from exposure simulation studies of typical talcum powder use, and data published in peer-reviewed literature to determine whether Ms. Young’s use of Cashmere Bouquet exposed her to released respirable asbestos fibers. SMF Nos. 71-72. Dr. Moline considered the Gordon 2014, Anderson 2017 8, Steffen 2020 exposure simulation studies that measured asbestos exposures resulting from the application of consumer talcum powder. SMF No. 72. Notably, Gordon 2014 measured asbestos exposures from the use of Cashmere Bouquet with a puff – like Ms. Young’s use. Id. Relying on the published data, Dr. Moline calculated the mean asbestos exposure during application of Cashmere Bouquet powder using a puff applicator to be 4.25 f/cc. Id. . Based on Ms. Young’s exposure history as set forth in her deposition testimony, Dr. Moline calculated Ms. Young’s lifetime exposure asbestos levels from her exposure to Cashmere Bouquet talcum powder products. She determined Ms. Young’s total Cashmere Bouquet exposure time from her personal use (33 hours or 0.02 occupational years). SMF No. 70. Dr. Moline’s exposure time is very conservative as it does not include Ms. Young’s bystander exposures from her mother’s or her sister’s regular and frequent use of Cashmere Bouquet in her presence. Id. 8 Dr. Moline noted that the Anderson study was designed and manipulated to decrease the respirable fiber data collected, but it was included it as a data point as an underestimation of what a person would be exposed to while applying talcum powder. SMF No. 72, n.203. 11 13 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 Dr. Moline then calculated Ms. Young’s cumulative dose of asbestos from Cashmere Bouquet to be at least 0.09 f/cc-yrs (4.25 f/cc x 0.02 years). SMF No. 73. Based on Dr. Longo’s detection of asbestos in 15 of 15 containers of Cashmere Bouquet made with Italian and Montana talcs, Dr. Gordon’s detection of asbestos in 50 of 50 containers of Cashmere Bouquet, and Dr. David Madigan, Plaintiffs’ expert statistician, probability calculations, it is assumed that every container of Cashmere Bouquet that Ms. Young used contained asbestos. Id. Dr. Moline performed similar calculations for Ms. Young’s exposures from her exposure to other talcum powder products, and determined that Ms. Young’s total lifetime dose of asbestos from her use of talcum powder is 0.62 f/cc-yrs. 9 Id. The causal relationship between exposure to asbestos and mesothelioma “is so firmly established in the scientific literature that it is accepted as a scientific ‘fact.’” SMF No. 74. All asbestos varieties have been shown to contribute to the development of pleural and peritoneal mesothelioma. Id. As set forth in numerous studies, papers, articles, and other reliable materials, and consistent with the consensus of the international scientific and medical community, a brief or low level of exposure to asbestos has been shown to be capable of causing pleural and peritoneal mesotheliomas. Id. Although there is no safe level of exposure to asbestos, minimum threshold levels that are sufficient to cause mesothelioma have been reported in the medical/scientific literature. To determine whether mesotheliomas have been shown to occur at levels similar to Ms. Young’s exposure through her use of Cashmere Bouquet powder, Dr. Moline relied upon published, peer- reviewed studies that demonstrate the dose-response relationship between exposures to asbestos and mesothelioma, including Lacourt 2014, Rodelsperger 2001, Rolland 206, and Jiang 2017: 9 Ms. Young had no other known asbestos exposures. 12 14 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 Study Fiber Type Exposure Range Increased Risk (in total fiber years) Lacourt Mixed >0 – 0.1 6.9 (women) 4.0 (men) Rodelsperger Mixed >0 - 0.15 7.9 Rolland Mixed >0 – 0.07 2.8 Jiang Chrysotile (Textile) >0 – 0.5 28 SMF No. 73. These studies demonstrated that asbestos exposures even at lower levels significantly increase the risk of mesothelioma. Id. For example, Rodelsperger 2001 demonstrates that for cumulative asbestos exposures greater than 0 but less than 0.15 f/yr, the risk of pleural or peritoneal mesothelioma increases to 7.9 (with a 99% CI of 2.1-29.5). Id. Lacourt, Rolland, and Jiang also demonstrate minimum cumulative exposure ranges sufficient to cause mesothelioma. 10 Id. At her conservative lifetime dose from Cashmere Bouquet of 0.09 f/yrs, the published, peer-reviewed studies show that Ms. Young’s risk of mesothelioma more than doubled. 3. Dr. Moline’s Opinion Meets the Parker/Nemeth Standard for Expert Causation Testimony. In Parker, the Court of Appeals set forth a standard for the admissibility of expert opinions on toxic causation, requiring the expert to show both general causation (“that the toxin is capable of causing the particular illness”) and specific causation (“that the plaintiff was exposed to sufficient levels of the toxin to cause the illness[.]”) 7 N.Y.3d at 448. The Court was mindful that “a plaintiff’s exposure to a toxin will be difficult or impossible to quantify by pinpointing an exact numerical standard,” and recognized that there are several ways that an expert may demonstrate causation: 10 While Lacourt was specific to pleural mesotheliomas, Rodelsperger, Rolland, and Jiang studied both pleural and peritoneal subjects. SMF No. 75, n.217.. 13 15 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 For instance, amici note that the intensity of exposure to benzene may be more important than a cumulative dose for determining the risk of developing leukemia. Moreover, exposure can be estimated through the use of mathematical modeling by taking a plaintiff's work history into account to estimate the exposure to a toxin. It is also possible that more qualitative means could be used to express a plaintiff's exposure. Comparison to the exposure levels of subjects of other studies could be helpful provided that the expert made a specific comparison sufficient to show how the plaintiff's exposure level related to those of the other subjects. These, along with others, could be potentially acceptable ways to demonstrate causation if they were found to be generally accepted as reliable in the scientific community. Parker at 449. However, regardless of the method used, demonstration of specific causation requires “a scientific expression of the plaintiff’s exposure level.” Id. The Court of Appeals recently reaffirmed Parker in an asbestos case: [W]e 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, 857 N.E.2d 1114, 824 N.Y.S.2d 584 (2006)). Nemeth, 38 NY3d at 342. In Nemeth, the Court of Appeals held that Dr. Moline’s causation opinion given at trial five years prior did not meet the requirements for establishing exposure to a toxin in an amount sufficient to cause the decedent’s mesothelioma. Id. at *2. The Court found that Dr. Moline had failed to set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to cause the decedent’s mesothelioma. Id. at *1. 11 While Plaintiff disagrees with the Court of Appeals’ decision and characterization of Dr. Moline’s opinion in Nemeth, her causation opinions in this case unquestionably meet the Parker/Nemeth standard. Dr. Moline has undertaken a quantitative analysis of causation in this 11 Following the Nemeth decision, the First Department Appellate Division held that the plaintiff’s causation experts in four separate asbestos cases had failed to meet the requirements set forth in Parker and reaffirmed in Nemeth. The decisions are not binding on this Court. 14 16 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 case, providing a numerical cumulative exposure level to compare against levels demonstrated to cause mesothelioma in the medical/scientific literature. Any issues the Court of Appeals had with Dr. Moline’s trial testimony in Nemeth do not apply to her opinions in this case. a. Dr. Moline Offers Reliable and Generally Accepted Expert Testimony that Asbestos is Capable of Causing Mesothelioma, Including at Low Levels (General Causation). Unable to dispute that asbestos causes mesothelioma, Colgate argues that Plaintiff has failed to provided evidence of general causation because of the absence of epidemiological studies showing a causal relationship between consumer exposure to cosmetic talcum powder and mesothelioma. To the extent Colgate argues that Dr. Moline has failed to show that talc causes mesothelioma, such an argument should be disregarded because the toxin at issue is asbestos fibers. Dr. Moline relies upon studies of disease incidence resulting from similar levels of inhalation of asbestos fibers. Her causation opinions are based upon Ms. Young’s inhalation of asbestos fibers. Studies of disease incidence resulting from similar levels of inhalation of asbestos fibers are unquestionably relevant, instructive, and relied upon by the scientific community. Moreover, Dr. Moline has identified and relied upon numerous articles, statements, reports and studies that have tied exposure to asbestos in talc to mesothelioma. SMF 77. The consideration of such reports is widely accepted in mesothelioma cases because of the tremendous difficulty in conducting epidemiologic studies with sufficient power. “Proper scientific inquiry not only can consider these reports, but, in fact, must consider them.” 12 Dr. Moline stays abreast of latest medical/scientific literature, as demonstrated by her voluminous reliance list. 13 Dr. Moline’s general causation opinions are further supported by Plaintiff’s expert epidemiologist and statistician, Dr. David Madigan. SMF No. 78. Dr. Madigan applied the nine 12 Ex. 137, Welch, et al. (2007) at 322. 13 Ex. 34, Moline Aff., at attached Ex. B, Moline Reliance List. 15 17 of 27 FILED: ERIE COUNTY CLERK 03/17/2023 07:22 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 03/17/2023 Bradford Hill criteria to determine whether lifetime asbestos-exposure levels as found in cosmetic talc contribute to the development of pleural and peritoneal mesothelioma. Id. The Bradford Hill criteria are “part of a sound methodology generally accepted by the scientific community” that considers all the evidence of causality, including aspects of toxicology and biology in addition to epidemiology. 14 See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 718 (Tex. 1997). After discussing each of the Bradford Hill criteria, Dr. Madigan concluded that there is significant evidence that lifetime asbestos exposures as found in the regular use of cosmetic talc can cause or contribute to the development of pleural and peritoneal mesothelioma. SMF No. 78. His opinions are confirmed in the literature: “[T]he evidence of causation using the Hill criteria from all the toxicological, biological and human studies is compelling. Use of talc as a cosmetic agent on adult or babies is elevating the risk of mesothelioma.” 15 Dr. Moline has satisfied the general causation requirement of Parker and Nemeth. In Parker, the Court of Appeals specified that “[c]omparison to the exposure levels of subjects of other studies could be helpful provided that the expert made a specific comparison sufficient to show how the plaintiff's exposure level related to those of the other subjects.” Parker, supra, at 449. The ample evidence in the record, including the widely-accepted scientific literature and data summarized in Dr. Moline’s reports, deposition testimony and affirmation, demonstrates that exposure to asbestos during the application of talcum powder causes mesothelioma. Dr. Moline’s reliance on studies of comparable asbestos exposures, coupled with various articles, case reports and studies demonstrating mesotheliomas caused by exposure to asbestos-containing talcum powder, is precis