Article: February 2019: Product Liability Litigation Update

“No Valid Distinction”: New York Court of Appeals Extends “Scientific Expression” Requirement to Asbestos Plaintiffs in Juni. 2018 was a difficult year for manufacturers of cosmetic talcum powder. This past summer, Johnson & Johnson suffered a crushing loss, as a St. Louis jury awarded $4.69 billion to a group of plaintiffs who alleged their ovarian cancer was caused by baby powder containing asbestos. Daniel Siegal, J&J Hit with $4.69B Verdict in 22-Woman Talc Cancer Trial, Law360 (July 12, 2018), https://www.law360.com/articles/1062771/j-j-hit-with-4-69b-verdict-in-22-woman-talc-cancer-trial (last visited Jan. 19, 2019). However, the year ended on a high note, as the New York Court of Appeals at long last weighed in on an important question: whether plaintiffs alleging asbestos-related illness, as opposed to illness caused by another toxin, must demonstrate that they were exposed to an amount of asbestos known to cause disease. The Court of Appeals in Juni answered in the affirmative, a step toward achieving parity between asbestos-litigation defendants and defendants in other toxic-tort litigation.

Ten years after the first wave of asbestos-in-talc litigation began in 2008, there are thousands of active cases in courts across the U.S., with more being filed each week. These cases often become a so-called battle of the experts, with plaintiffs’ experts testifying that talcum powder manufactured by defendants contains asbestos, and that plaintiffs’ use of that talcum powder, without qualification, causes cancer. Setting aside the lack of scientific evidence supporting either of those propositions, plaintiffs—such as those in the Johnson & Johnson ovarian cancer case—have been able to circumvent the general requirement in toxic tort cases that specific causation be proven by a showing that a particular plaintiff was exposed to an amount of toxin actually capable of causing the plaintiff’s alleged injury. Plaintiffs’ experts instead typically rely on a “cumulative exposure” theory, testifying that each and every exposure to asbestos over one’s lifetime increases the risk of developing an asbestos-related illness, regardless of the dose of asbestos received from any particular exposure. Under such a theory, plaintiffs essentially need only create a jury question of whether they were exposed to asbestos at all, significantly lowering their burden of proof regarding causation. Dr. Jacqueline Moline, a causation expert who testified in the Johnson & Johnson case and in countless other asbestos-in-talc cases, espouses this theory. John Sammon, Expert witness discusses link to asbestos in ovarian cancer in Johnson & Johnson talc trial, Law360 (Jan. 18, 2019) https://stlrecord.com/stories/511468463-expert-witness-discusses-link-to-asbestos-in-ovarian-cancer-in-johnson-johnson-talc-trial (last visited Jan. 19, 2019).

Before talc litigation had picked up much speed, the New York Court of Appeals rejected the cumulative exposure theory as insufficient to demonstrate causation in toxic tort cases, holding 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 the plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).” Parker v. Mobil Oil Corp., 857 N.E.2d 1114 (N.Y. 2006). Parker did not require a precise quantification, or an exact numerical value for exposure, but it did require a “scientific expression”—some generally accepted method of demonstrating exposure to a level of toxin sufficient to cause illness.

Parker reigned over a new generation of toxic tort cases, but there remained a question as to whether this “scientific expression” requirement applied to asbestos cases equally. This precise question recently came before the New York Supreme Court, Appellate Division for the First Department in the Juni case. In re New York City Asbestos Litig., 148 A.D.3d 233, 240 (N.Y. App. Div. 2017) (Juni). In Juni, a mechanic alleged that he had contracted mesothelioma after being exposed to asbestos in brakes, clutches, and gaskets manufactured by Ford Motor Company. Id. at 235. Plaintiff’s experts, including Dr. Moline, asserted that asbestos in these products was the cause of the plaintiff’s mesothelioma, but failed to offer any quantification or scientific expression of the amount of asbestos to which plaintiff was allegedly exposed to through Ford’s products specifically. The court singled out Dr. Moline’s assertion that all of the plaintiff’s exposures were substantial factors in causing his mesothelioma as “groundless” and “unsupported.” Id. at 237. The court held that the experts’ “broad conclusions on causation lacked a sufficient foundation” and were thus insufficient to establish that Ford’s products specifically caused the Plaintiff’s mesothelioma. Id. at 239-40.

With respect to asbestos cases generally, the court held that a “particular plaintiff” is not entitled to judgment against “a particular defendant by merely establishing some exposure to a product containing any amount of asbestos.” Id. “Rather,” the court continued, “a plaintiff claiming that a defendant is liable for causing his or her mesothelioma must still establish some scientific basis for a finding of causation attributable to a particular defendant’s product.” Id. There is “no valid distinction,” the court held, between the difficulty of establishing exposure to asbestos than exposure to other toxins. Id. at 238. Plaintiff petitioned for review of the First Department’s decision, and in November 2018, the New York Court of Appeals affirmed the court’s order in a short opinion, applying Parker and holding that the evidence presented by plaintiff was insufficient as a matter of law. Matter of New York City Asbestos Litig., --N.E.3d--, 2018 WL 6173944 (Mem) (N.Y. 2018).

The court’s decision in Juni is a landmark for asbestos litigation nationally. New York has a busy, specialized asbestos docket consisting of claims of occupational exposures such as those made in Juni, as well as claims of exposure from the use of cosmetic talcum powder like those made against Johnson & Johnson in St. Louis. In both types of cases, plaintiffs will now be required to demonstrate not just that asbestos exposure is causally associated with illness, but that their particular exposure was of an amount sufficient to cause their particular illness.