LCBF Preserves Trial Record on Causation, Resulting in Highly Anticipated High Court Ruling - Reversal of $16.5M Verdict in NYC Asbestos Case

On April 26, 2022, in Nemeth v. Whittaker Clark & Daniels, New York’s highest court, the Court of Appeals, reversed a $16.5M verdict entered by a NYC jury in 2017.  Plaintiff claimed that Florence Nemeth was exposed to “asbestos” from her alleged use of Desert Flower Dusting Powder, and that such exposure caused her to develop peritoneal mesothelioma.  Before Trial, no expert defined the amount of alleged “asbestos” exposure that would be capable of causing peritoneal mesothelioma, nor what amount of alleged exposure Ms. Nemeth 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 specific causation because no amounts were  described in any pre-trial disclosure.  At a 7 week-long Trial, Sean Fitzgerald, P.G., an expert for the Plaintiff, contended that his testing showed that millions of “asbestos” fibers would have been released during product use.  Mr. Fitzgerald, however, did not opine what amount of the fibers released would have been inhaled.  And, thus, there was a gap in proof.  Moreover, on cross examination, Dr. Moline admitted that she knew of no threshold for the exposure level necessary to cause peritoneal mesothelioma, but that it was her opinion that “low or brief” exposures were sufficient, and also admitted that she had not calculated any dose of exposure related to the product at issue.  In overturning the lower court’s decisions, the Court of Appeals explained that there were two fatal deficiencies in Plaintiff’s expert proofs that LCBF preserved at Trial: (1) failure to establish the threshold level of the toxin necessary to cause the particular injury (i.e., “low or brief” exposure was legally insufficient), and (2) failure to demonstrate the decedent’s specific level of exposure even if by estimation or comparison.  The Court further emphasized the legal requirement that 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 her disease.”

The LCBF Trial team was headed by Andrew Kornblau. A link to the Decision can be found here: Nemeth Decision (Ct. of App. NY)