On Tuesday April 26, 2022, in Nemeth v. Brenntag North America, New York’s highest court dismissed the manufacturer of a cosmetic talc product in an asbestos case. For the second time in the last 4 years, the New York Court of Appeals has reversed a plaintiff’s verdict, finding that expert testimony was inadequate as a matter of law to have met their burden of proof.
In 2018, in the Juni case, the Court of Appeals found the plaintiff did not offer a scientifically reliable opinion on the issue of whether automobile brake products with a unique compound called Forsterite was the cause of the plaintiff’s illness. Matter of New York City Asbestos Litig., 32 N.Y.3d 1116 (2018). Likewise in the Nemeth case, the Court concluded that the plaintiff's expert, who tested the subject talc product by shaking it in a box, did not provide adequate enough reliable scientific proof that asbestos in cosmetic talc, as it was used, rose to the level of exposure that was a substantial contributing factor to the plaintiff’s asbestos disease. The dissent in Nemeth, believed the scientific proof (or lack thereof) should be an issue of weight for the jury, not for the Court.
The majority, however, applied the long-standing toxic tort burden of proof in Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006), which requires both general and specific causation, in that the plaintiff must show exposure to sufficient levels of the toxin to cause the illness. Ultimately, the majority in the Nemeth case found that the testing used by the plaintiff’s expert did not satisfy this burden.
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