LCBF Preserves Trial Record on Causation, Resulting in Reversal of $7M Verdict in NYC Asbestos Case

On June 20, 2019, in Robusto (DiScala) v. Whittaker Clark & Daniels, the 1st Department reversed a $7M verdict entered by a NYC jury in 2015.  Plaintiff claimed that Joan Robusto was exposed to “asbestos” from her alleged use of Desert Flower Dusting Powder, and that such exposure caused her to develop pleural mesothelioma.  Before Trial, no expert defined the amount of alleged “asbestos” exposure Ms. Robusto could have had if her claims were believed.  LCBF moved in limine to preclude Plaintiff’s causation expert Dr. Jacqueline Moline from opining on the issue of specific causation because no amount was described in any pre-trial disclosure.  At a 5 week-long Trial, Sean Fitzgerald, P.G., an expert for the Plaintiff, contended that his testing showed that there would have been a “substantial” exposure from use of the product at issue.  Dr. Moline relied on that vague description to form her opinion as to Ms. Robusto’s pleural mesothelioma.  On appeal, the 1st Department found that the Trial Record preserved by LCBF “failed to establish a level of exposure sufficient to cause the illness.” 

The LCBF Trial team was headed by John Bonventre. A link to the Decision can be found here: Robusto Decision (1st Dept.)