On April 06, 2022 a
Exhibit,Appendix
was filed
involving a dispute between
Bradford Brett,
Linda Johnson-Brett,
and
A.O. Smith Corporation.,,
Avon Products, Inc.,,
Bird Incorporated,,
Brenntag North America, Inc., Individually And As Successor In Interest To Mineral Pigment Solutions, Inc., As Successor In Interest To Whittaker, Clark & Daniels, Inc.,,
Bristol-Myers Squibb Company,
Burnham Holdings Llc,
Burnham, Llc, Individually And As Successor To Burnham Corporation,,
Carrier Corporation,,
Chanel, Inc.,,
Clinique Laboratories, Llc,,
Colgate Palmolive Company,
Compudyne Corporation, Individually And As Successor To York-Shipley,
Conopco, Inc., Individually And As Successor In Interest To Cheseborough-Ponds, Inc.,,
Coty, Inc.,,
Crane Co.,,
Crown Boiler Co.,,
Dap, Inc.,,
Ecr International, Inc., Individually And As Successor In Interest To Dunkirk, Dunkirk Boilers And Utica Boilers,,
Elizabeth Arden, Inc., Individually And As Successor In Interest To Evyan Perfumes, Inc.,,
Estee Lauder, Inc.,,
Estee Lauder International, Inc.,,
Fort Kent Holdings, Inc., F K A Dunham-Bush, Inc.,,
Friend Lumber Company Of Lowell,,
General Electric Company,,
Goulds Pumps, Inc.,,
Grinnell Llc,,
Honeywell International, Inc., F K A Allied Signal, Inc. Bendix,,
Itt Corporation, Individually, And As Successor In Interest To Bell & Gossett And Hoffman Specialty,,
Kaiser Gypsum Company, Inc.,,
Keeler-Dorr-Oliver Boiler Company,,
Macys, Inc.,,
Mineral And Pigment Solutions, Inc., F K A Whittaker, Clark & Daniels, Inc.,,
Minnesota Mining & Manufacturing Company, A K A 3M Company,,
New Yorker Boiler Co., Inc.,,
Paramount Global F K A Viacomcbs, Inc. F K A Cbs Corporation, A Delaware Corporation, F K A Viacom Inc., Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,,
Parfums De Couer Ltd,
Pecora Corp.,,
Pfizer, Inc., Individually And As Successor To Coty Inc.,,
Revlon, Inc., Individually And As Successor In Interest To Jean Nate, Evyan Perfumes, Inc. And Enjoli, Inc.,,
Rheem Manufacturing Co., Rudd Water Heater Division,,
R.W. Beckett Corp.,,
Schneider Electric Usa, Inc., Formerly Known As Square D Company,
Slant Fin Corporation,,
Sos Products Co. Inc.,,
Spirax Sarco, Inc., Individually And As Successor To Sarco Company,,
Union Carbide Corporation,,
Weil Mclain, A Division Of The Marley Wylain Company,,
Whittaker, Clark & Daniels, Inc.,,
for Torts - Asbestos
in the District Court of Monroe County.
Preview
INDEX NO. E2022002698
NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 04/12/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3822829
Book Page CIVIL
Return To: No. Pages: 8
KUSH SHUKLA
1040 6th Avenue, Suite 12B Instrument: EXHIBIT(S)
New York, NY 10018
Control #: 202404121916
Index #: E2022002698
Date: 04/12/2024
JOHNSON-BRETT, LINDA Time: 4:29:25 PM
BRETT, BRADFORD
A.O. SMITH CORPORATION.,
AVON PRODUCTS, INC.,
BIRD INCORPORATED,
BRENNTAG NORTH AMERICA, INC., individually and as
successor in interest to MINERAL PIGMENT SOLUTIONS,
INC., as successor in interest to WHITTAKER, CLARK &
noe rene
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING — THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO.
MONROE COUNTY CLERK
MOT
MONRO OUN PK 04 04: DM INDE HOE 2€22022092
698
NYSCEF BOC. NO. 813 RECEIVED NYSCEF: 04/12/2024
EXHIBIT 86
FYECH2° MONROE COUNTY CLERK 04/12/2024 04:26 PM) [~~ INbmexNoe2ezmzenDGo8—
NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 04/12/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ADAM SILVERA PART 13
Justice
a= Xx INDEX NO. 190346/2018
PATRICIA RASSO.
MOTION DATE 09/28/2020
Plaintiff,
MOTION SEQ. NO. 014
-V-
AVON PRODUCTS, INC.,BRENNTAG NORTH AMERICA,
BRENNTAG SPECIALTIES, INC..AS SUCCESSOR-IN-
INTEREST TO MINERAL PIGMENT SOLUTIONS, iNC.,AS
SUCCESSOR-IN-INTEREST TO WHITAKER CLARK &
DANIELS, INC..CHARLES B. CHRYSTAL COMPANY
INC.,CONOPCO, INC.,COTY, INC.,COTY US, LLC,ELI
LILLY AND COMPANY, ELIZABETH ARDEN, INC.,IMERYS
TALC AMERICA INC. F/K/A LUZENAC AMERICA,
INC. INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST
TO WINDSOR MINERALS, INC.,PFIZER, INC.,REVLON
INC.,AS SUCCESSOR-IN-INTEREST TO ELIZABETH
ARDEN, INC.,UNILEVER UNITED STATES. DECISION + ORDER ON
INC. WHITTAKER CLARK & DANIELS, INC., WHITTAKER MOTION
CLARK & DANIELS, INC. INDIVIDUALLY AND AS
SUCCESSOR TO CHARLES MATHIEU, INC. AND
METROPOLITAN TALC CO., JOHN DOE 1 THROUGH
JOHN DOE 75 (FICTITIOUS), COLGATE - PALMOLIVE
COMPANY (FOR CASHMERE BOUQUET), IMERYS TALC
AMERICA, INC.,JOHNSON & JOHNSON, JOHNSON &
JOHNSON CONSUMER COMPANIES, INC.,LUZENAC
AMERICA INC.,PROCTER & GAMBLE MANUFACTURING
COMPANY AS SUCESSOR-IN-INTEREST TO SHULTON,
INC.,KOLMAR LABORATORIES, INC
Defendant.
_— =X
The following e-filed documents, listed by NYSCEF document number (Motion 014) 658, 659, 660, 661
662, 663, 664, 665, 666, 667, 668, 669, 670, 671, 672, 673, 674, 675, 676, 677, 678, 679, 680, 681, 682
683, 684, 685, 686, 687, 688, 689, 690, 691, 692, 693, 694, 695, 696, 697, 698, 699, 700, 701, 702, 703.
704, 705, 706, 707, 708, 712, 713, 714, 715, 716, 717, 718, 719, 720, 721, 722, 723, 724, 725, 726, 727,
728, 729, 730, 731, 732, 733, 734, 735, 736, 737, 738, 739, 740, 741, 742. 743, 744, 745, 746, 747, 748.
749, 750, 751, 752, 753, 754, 755, 756, 757, 758, 759, 760, 761, 762, 763, 764, 765, 766, 767, 768, 769.
770, 771, 772, 773, 774, 775, 776, 777, 778, 779, 780, 781, 782, 783, 784, 785, 786, 787, 788, 789, 790.
791, 792, 793, 794, 795, 796, 797, 798, 799, 800, 801, 802, 803, 804, 805, 806, 807, 808, 809, 810, 814
812, 813, 814, 815, 816, 817, 818, 819, 820, 821, 822, 823, 824, 825, 826, 827, 828, 829, 830, 831, 832
833, 834, 835, 836, 837, 838, 839, 840, 841, 842, 843, 844, B45, 846, 847, 848, 849, 850, 851, 852, 853
854, 855, 856, 857, 858, 859, 860, 861, 862, 863, 864, 865, 920, 921, 922, 923, 924, 925, 926, 927, 928
1194, 1195, 1202
were read on this motion to/for SUMMARY JUDGMENT(BEFORE JOIND)
190346/2018 ENGLISH, LINDA vs. AVON PRODUCTS, INC. Page 1 of 6
Motion No. 014
lof 6
INDEX IN@ex 200220076888
NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 04/12/2024
Upon the foregoing documents, it is ordered that defendant Colgate-Palmolive
Company's (“Colgate”) motion is denied in accordance with the decision below.
Here, defendant Colgate primarily contends that Texas law should apply to the instant
matter and that plaintiff has not demonstrated causation in accordance with Texas’ standard.
Defendant also argues that it has established a prima facie case against causation under New
York law such that it is entitled to summary judgment. Plaintiff opposes, noting both that the law
of the forum applies to the instant motion, and that plaintiff has offered sufficient evidence of
causation under New York law, Defendant replies, re-iterating both the Texas standard for
causation and that plaintiff's evidence is insufficient under New York causation.
‘The Court notes that summary judgment is a drastic remedy and should only be granted if
the moving party has sufficiently established that it is warranted as a matter of law, See Alvarez v
Prospect Hosp,, 68 NY2d 320, 324 (1986). “The proponent of a summary judgment motion must
make a prima facie showing of entitlement to judgment as a matier of law, tendering sufficient
evidence to eliminate any material issues of fact from the case”. Winegrad v New York
University Medical Center, 64 NY 2d 851, 853 (1985). Despite the sufficiency of the opposing
papers, the failure to make such a showing requires denial of the motion. See fd at 853.
Additionally, summary judgment motions should be denied if the opposing party presents
admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v
City of New York, 49 NY2d 557, 560 (1980). “In determining whether summary judgment is
appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving
party and should not pass on issues of credibility.” Garcia v J.C. Duggan, Inc., 180 AD2d 579,
580 (1% Dep’t 1992), citing Dawman Displays, Inc. v Masturzo, 168 AD2d 204 (15 Dep’t 1990).
The court’s role is “issue-finding, rather than issue-determination”. Silman v Twentieth Century-
490346/2018 ENGLISH, LINDA vs. AVON PRODUCTS, INC. Page 2016
Motion No. 014
2 of 6
INDW@ExNO
E 262202209 698
NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 04/12/2024
Fox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations omitted). As such, summary
judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence.
See Ugarriza v Schmieder, 46 NY2d 471, 475-476 (1979). Furthermore, the Appellate Division,
First Department has held that on a motion for summary judgment. it is moving defendant's
burden “to unequivocally establish that its product could not have contributed to the causation of
plaintiff's injury”. Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 (1* Dep’t 1995).
The issue in the instant matter is the choice-of-law applicable to Defendant Colgate’s
motion. Defendant Colgate argues that Texas law should apply because Ms. English was a
resident of Texas, purchased Cashmere Bouquet talcum powder in Texas, and has never lived in
New York, purchased the powder in New York, or received medical treatment in New York. See
Memorandum of Law in Support of Colgate-Palmolive Company’s Motion for Summary
Judgment, p. 4. Defendants cite caselaw regarding the legal conflicts between Texas and New
York, but none to support the finding that Texas law should apply in the first place.
In opposition, Plaintiffs argue that the case history includes multiple determinations on
this issue in favor of New York law, that Ms. English used talcum powder significantly in New
York, that defendant Colgate is New York-based, and that New York conflicts of law
emphasizes the jurisdiction's interest in the litigation. See Plaintiffs’ Memorandum of Law in
Opposition to Defendant Colgate-Palmolive Co.'s Motion for Summary Judgment, p. 50-56.
‘The Court of Appeals has addressed cases involving conflicts of law between New York
and other jurisdictions several times. “The traditional choice of law rule...has been that the
substantive rights and liabilities arising out of a tortious occurrence are determinable by the law
of the place of the tort.” Babcock v Jackson, 12 NY2d 473, 477 (1963). However, this rule has
evolved over time to include “the ‘center of gravity’ or ‘grouping of contacts’ theory”. /d. at 479
190; [2018 ENGLISH, LINDA vs. AVON PRODUCTS, ine.
of 6 Page
3 of 8
) IND®€xNO E 2622902698 698—
NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 04/12/2024
(citing Auten y Auten, 308 NY 155, 160 (1954)). This allows courts to “lay emphasis. ,.upon the
law of the place ‘which has the most significant contacts with the matter in dispute’. /d, In
Neumeier v Kuehner, 31 NY2d 121, 128 (1972), the Court summarized the conflict of law
principles as applied to the differing domiciles of a passenger and driver in a motor vehicle
accident. “[W]hen the passenger and the driver are domiciled in different states, the rule is
necessarily less categorical. Normally, the applicable rule of decision will be that of the state
where the accident occurred but not if it can be shown that displacing... [such] rule will advance
the relevant substantive law purposes without impairing the smooth working of the multi-state
system or producing great uncertainty for litigants.” /d. citing Tooker v Lopez, 24 NY2d 569, $85
(1969).
Here, Ms. English testified unequivocally to her significant use of Cashmere Bouquet
talcum powder in New York and has offered evidence which conflicts with defendant Colgate’s
evidence regarding the level of asbestos contamination therein. See Plaintiffs’ Memorandum of
Law in Opposition, supra, p, 2-8. With respect to plaintiff's deposition testimony, the Appellate
Division, First Department, has held that “[t]he deposition testimony of a litigant is sufficient to
raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint.
The assessment of the value of a witnesses’ testimony constitutes an issue for resolution by the
trier of fact, and any apparent discrepancy between the testimony and the evidence of record
goes only to the weight and not the admissibility of the testimony.” Dollas v W.R. Grace and
Co., 225 AD2d 319, 321 (1% Dep’t 1996) (internal citations omitted),
Further, defendant Colgate does not dispute that their principal place of business is New
York or that they have historically sold such talcum powder in New York, indicating that their
defense of the instant matter in New York will not “produc[e] great uncertainty” for them,
190346/2018 ENGLISH, LINDA vs. AVON PRODUCTS, INC. Page
4 of 6
Motion No, 074
4 of 6
INDESXNO
E 2622922692 698
J
NYSCEF DOC. NO. 8232 RECEIVED NYSCEF: 04/12/2024
Neumeier v Kuehner, supra. Further, this establishes New York’s interest in the substantive issue
underlying the case.
As to causation, defendant Colgate claims that under Parker v Mobil Oil Corp., 7NY3d
434 (2006), plaintiff must establish general causation by providing evidence that asbestos as a
component of tale causes mesothelioma. Plaintiff, in fact, offers detailed evidence that the
primary sources of talc used at the time were largely contaminated with asbestos. See Plaintiffs’
Memorandum of Law in Opposition, supra, p. 8-43. Additionally, plaintiff offers conflicting
evidence regarding defendant Colgate’s choice to use talc contaminated with asbestos as opposed
to other non-contaminated alternatives. See id. at 44. Such conflicting evidence is sufficient to
preclude summary judgment, As to specific causation, defendant incorrectly states that plaintiffs
have performed no mathematical calculations to establish such causation. Plaintiff's expert has,
in fact, noted that Ms. English’s number of years of talcum powder usage combined with the lack
of other sources of exposure leads to a conclusion of substantial certainty for causation. See id. at
47-48.
A reasonable juror could determine that plaintiff was exposed to asbestos from defendant
Colgate’s cosmetic talcum powder, whether such exposure was a substantial cause of plainuiff's
disease, and whether punitive damages should apply to defendant Colgate’s conduct regarding
safer alternatives. Therefore, sufficient issues of fact exist to preclude summary judgment.
Accordingly, it is
ORDERED that defendant Colgate’s motion is denied in its entirety; and it is further
ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this
Decision/Order with notice of entry.
This constitutes the Decision/Order of the Court.
190346/2018 ENGLISH, LINDA vs. AVON PRODUCTS, INC. Page 5 of 6
Motion No. 014
5 of 6
INDi€xNO
E 2622922692 698
*:
}
NYSCEF BOC. NO. 813 RECEIVED NYSCEF: 04/12/2024
09/11/2023
DATE
iL A=ADAM SILVERA, J.S.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED fx] DENIED GRANTED IN PART O OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT ir REFERENCE
190346/2018 ENGLISH, LINDA vs. AVON PRODUCTS, INC.
Page
6 of &
Motion No. 044
6 of 6
Preview
INDEX NO. E2022002698 NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 04/12/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3822829 Book Page CIVIL Return To: No. Pages: 8 KUSH SHUKLA 1040 6th Avenue, Suite 12B Instrument: EXHIBIT(S) New York, NY 10018 Control #: 202404121916 Index #: E2022002698 Date: 04/12/2024 JOHNSON-BRETT, LINDA Time: 4:29:25 PM BRETT, BRADFORD A.O. SMITH CORPORATION., AVON PRODUCTS, INC., BIRD INCORPORATED, BRENNTAG NORTH AMERICA, INC., individually and as successor in interest to MINERAL PIGMENT SOLUTIONS, INC., as successor in interest to WHITTAKER, CLARK & noe rene Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING — THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO. MONROE COUNTY CLERK MOT MONRO OUN PK 04 04: DM INDE HOE 2€22022092 698 NYSCEF BOC. NO. 813 RECEIVED NYSCEF: 04/12/2024 EXHIBIT 86 FYECH2° MONROE COUNTY CLERK 04/12/2024 04:26 PM) [~~ INbmexNoe2ezmzenDGo8— NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 04/12/2024 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 13 Justice a= Xx INDEX NO. 190346/2018 PATRICIA RASSO. MOTION DATE 09/28/2020 Plaintiff, MOTION SEQ. NO. 014 -V- AVON PRODUCTS, INC.,BRENNTAG NORTH AMERICA, BRENNTAG SPECIALTIES, INC..AS SUCCESSOR-IN- INTEREST TO MINERAL PIGMENT SOLUTIONS, iNC.,AS SUCCESSOR-IN-INTEREST TO WHITAKER CLARK & DANIELS, INC..CHARLES B. CHRYSTAL COMPANY INC.,CONOPCO, INC.,COTY, INC.,COTY US, LLC,ELI LILLY AND COMPANY, ELIZABETH ARDEN, INC.,IMERYS TALC AMERICA INC. F/K/A LUZENAC AMERICA, INC. INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO WINDSOR MINERALS, INC.,PFIZER, INC.,REVLON INC.,AS SUCCESSOR-IN-INTEREST TO ELIZABETH ARDEN, INC.,UNILEVER UNITED STATES. DECISION + ORDER ON INC. WHITTAKER CLARK & DANIELS, INC., WHITTAKER MOTION CLARK & DANIELS, INC. INDIVIDUALLY AND AS SUCCESSOR TO CHARLES MATHIEU, INC. AND METROPOLITAN TALC CO., JOHN DOE 1 THROUGH JOHN DOE 75 (FICTITIOUS), COLGATE - PALMOLIVE COMPANY (FOR CASHMERE BOUQUET), IMERYS TALC AMERICA, INC.,JOHNSON & JOHNSON, JOHNSON & JOHNSON CONSUMER COMPANIES, INC.,LUZENAC AMERICA INC.,PROCTER & GAMBLE MANUFACTURING COMPANY AS SUCESSOR-IN-INTEREST TO SHULTON, INC.,KOLMAR LABORATORIES, INC Defendant. _— =X The following e-filed documents, listed by NYSCEF document number (Motion 014) 658, 659, 660, 661 662, 663, 664, 665, 666, 667, 668, 669, 670, 671, 672, 673, 674, 675, 676, 677, 678, 679, 680, 681, 682 683, 684, 685, 686, 687, 688, 689, 690, 691, 692, 693, 694, 695, 696, 697, 698, 699, 700, 701, 702, 703. 704, 705, 706, 707, 708, 712, 713, 714, 715, 716, 717, 718, 719, 720, 721, 722, 723, 724, 725, 726, 727, 728, 729, 730, 731, 732, 733, 734, 735, 736, 737, 738, 739, 740, 741, 742. 743, 744, 745, 746, 747, 748. 749, 750, 751, 752, 753, 754, 755, 756, 757, 758, 759, 760, 761, 762, 763, 764, 765, 766, 767, 768, 769. 770, 771, 772, 773, 774, 775, 776, 777, 778, 779, 780, 781, 782, 783, 784, 785, 786, 787, 788, 789, 790. 791, 792, 793, 794, 795, 796, 797, 798, 799, 800, 801, 802, 803, 804, 805, 806, 807, 808, 809, 810, 814 812, 813, 814, 815, 816, 817, 818, 819, 820, 821, 822, 823, 824, 825, 826, 827, 828, 829, 830, 831, 832 833, 834, 835, 836, 837, 838, 839, 840, 841, 842, 843, 844, B45, 846, 847, 848, 849, 850, 851, 852, 853 854, 855, 856, 857, 858, 859, 860, 861, 862, 863, 864, 865, 920, 921, 922, 923, 924, 925, 926, 927, 928 1194, 1195, 1202 were read on this motion to/for SUMMARY JUDGMENT(BEFORE JOIND) 190346/2018 ENGLISH, LINDA vs. AVON PRODUCTS, INC. Page 1 of 6 Motion No. 014 lof 6 INDEX IN@ex 200220076888 NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 04/12/2024 Upon the foregoing documents, it is ordered that defendant Colgate-Palmolive Company's (“Colgate”) motion is denied in accordance with the decision below. Here, defendant Colgate primarily contends that Texas law should apply to the instant matter and that plaintiff has not demonstrated causation in accordance with Texas’ standard. Defendant also argues that it has established a prima facie case against causation under New York law such that it is entitled to summary judgment. Plaintiff opposes, noting both that the law of the forum applies to the instant motion, and that plaintiff has offered sufficient evidence of causation under New York law, Defendant replies, re-iterating both the Texas standard for causation and that plaintiff's evidence is insufficient under New York causation. ‘The Court notes that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law, See Alvarez v Prospect Hosp,, 68 NY2d 320, 324 (1986). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matier of law, tendering sufficient evidence to eliminate any material issues of fact from the case”. Winegrad v New York University Medical Center, 64 NY 2d 851, 853 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See fd at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). “In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility.” Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 (1% Dep’t 1992), citing Dawman Displays, Inc. v Masturzo, 168 AD2d 204 (15 Dep’t 1990). The court’s role is “issue-finding, rather than issue-determination”. Silman v Twentieth Century- 490346/2018 ENGLISH, LINDA vs. AVON PRODUCTS, INC. Page 2016 Motion No. 014 2 of 6 INDW@ExNO E 262202209 698 NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 04/12/2024 Fox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations omitted). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. See Ugarriza v Schmieder, 46 NY2d 471, 475-476 (1979). Furthermore, the Appellate Division, First Department has held that on a motion for summary judgment. it is moving defendant's burden “to unequivocally establish that its product could not have contributed to the causation of plaintiff's injury”. Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 (1* Dep’t 1995). The issue in the instant matter is the choice-of-law applicable to Defendant Colgate’s motion. Defendant Colgate argues that Texas law should apply because Ms. English was a resident of Texas, purchased Cashmere Bouquet talcum powder in Texas, and has never lived in New York, purchased the powder in New York, or received medical treatment in New York. See Memorandum of Law in Support of Colgate-Palmolive Company’s Motion for Summary Judgment, p. 4. Defendants cite caselaw regarding the legal conflicts between Texas and New York, but none to support the finding that Texas law should apply in the first place. In opposition, Plaintiffs argue that the case history includes multiple determinations on this issue in favor of New York law, that Ms. English used talcum powder significantly in New York, that defendant Colgate is New York-based, and that New York conflicts of law emphasizes the jurisdiction's interest in the litigation. See Plaintiffs’ Memorandum of Law in Opposition to Defendant Colgate-Palmolive Co.'s Motion for Summary Judgment, p. 50-56. ‘The Court of Appeals has addressed cases involving conflicts of law between New York and other jurisdictions several times. “The traditional choice of law rule...has been that the substantive rights and liabilities arising out of a tortious occurrence are determinable by the law of the place of the tort.” Babcock v Jackson, 12 NY2d 473, 477 (1963). However, this rule has evolved over time to include “the ‘center of gravity’ or ‘grouping of contacts’ theory”. /d. at 479 190; [2018 ENGLISH, LINDA vs. AVON PRODUCTS, ine. of 6 Page 3 of 8 ) IND®€xNO E 2622902698 698— NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 04/12/2024 (citing Auten y Auten, 308 NY 155, 160 (1954)). This allows courts to “lay emphasis. ,.upon the law of the place ‘which has the most significant contacts with the matter in dispute’. /d, In Neumeier v Kuehner, 31 NY2d 121, 128 (1972), the Court summarized the conflict of law principles as applied to the differing domiciles of a passenger and driver in a motor vehicle accident. “[W]hen the passenger and the driver are domiciled in different states, the rule is necessarily less categorical. Normally, the applicable rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing... [such] rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants.” /d. citing Tooker v Lopez, 24 NY2d 569, $85 (1969). Here, Ms. English testified unequivocally to her significant use of Cashmere Bouquet talcum powder in New York and has offered evidence which conflicts with defendant Colgate’s evidence regarding the level of asbestos contamination therein. See Plaintiffs’ Memorandum of Law in Opposition, supra, p, 2-8. With respect to plaintiff's deposition testimony, the Appellate Division, First Department, has held that “[t]he deposition testimony of a litigant is sufficient to raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint. The assessment of the value of a witnesses’ testimony constitutes an issue for resolution by the trier of fact, and any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony.” Dollas v W.R. Grace and Co., 225 AD2d 319, 321 (1% Dep’t 1996) (internal citations omitted), Further, defendant Colgate does not dispute that their principal place of business is New York or that they have historically sold such talcum powder in New York, indicating that their defense of the instant matter in New York will not “produc[e] great uncertainty” for them, 190346/2018 ENGLISH, LINDA vs. AVON PRODUCTS, INC. Page 4 of 6 Motion No, 074 4 of 6 INDESXNO E 2622922692 698 J NYSCEF DOC. NO. 8232 RECEIVED NYSCEF: 04/12/2024 Neumeier v Kuehner, supra. Further, this establishes New York’s interest in the substantive issue underlying the case. As to causation, defendant Colgate claims that under Parker v Mobil Oil Corp., 7NY3d 434 (2006), plaintiff must establish general causation by providing evidence that asbestos as a component of tale causes mesothelioma. Plaintiff, in fact, offers detailed evidence that the primary sources of talc used at the time were largely contaminated with asbestos. See Plaintiffs’ Memorandum of Law in Opposition, supra, p. 8-43. Additionally, plaintiff offers conflicting evidence regarding defendant Colgate’s choice to use talc contaminated with asbestos as opposed to other non-contaminated alternatives. See id. at 44. Such conflicting evidence is sufficient to preclude summary judgment, As to specific causation, defendant incorrectly states that plaintiffs have performed no mathematical calculations to establish such causation. Plaintiff's expert has, in fact, noted that Ms. English’s number of years of talcum powder usage combined with the lack of other sources of exposure leads to a conclusion of substantial certainty for causation. See id. at 47-48. A reasonable juror could determine that plaintiff was exposed to asbestos from defendant Colgate’s cosmetic talcum powder, whether such exposure was a substantial cause of plainuiff's disease, and whether punitive damages should apply to defendant Colgate’s conduct regarding safer alternatives. Therefore, sufficient issues of fact exist to preclude summary judgment. Accordingly, it is ORDERED that defendant Colgate’s motion is denied in its entirety; and it is further ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this Decision/Order with notice of entry. This constitutes the Decision/Order of the Court. 190346/2018 ENGLISH, LINDA vs. AVON PRODUCTS, INC. Page 5 of 6 Motion No. 014 5 of 6 INDi€xNO E 2622922692 698 *: } NYSCEF BOC. NO. 813 RECEIVED NYSCEF: 04/12/2024 09/11/2023 DATE iL A=ADAM SILVERA, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED fx] DENIED GRANTED IN PART O OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT ir REFERENCE 190346/2018 ENGLISH, LINDA vs. AVON PRODUCTS, INC. Page 6 of & Motion No. 044 6 of 6