Castro v. Colgate-Palmolive Company (W.D.N.Y., July 13, 2020)

Our plain-English summary of Castro v. Colgate-Palmolive Company (U.S. District Court, Western District of New York, July 13, 2020).

John Castro and his wife Joyce sued Colgate-Palmolive, CVS Pharmacy, Johnson & Johnson entities, Revlon, Cyprus Amax Minerals and others. They claim that asbestos in talcum powder products Mr. Castro used for decades caused his mesothelioma. They pleaded product negligence and strict product liability. This report and recommendation by a magistrate judge dealt only with three pending motions: two CVS motions to dismiss or transfer, one for lack of personal jurisdiction, and the Castros' cross-motion for leave to amend the complaint. CVS's motion relied on deposition testimony that Mr. Castro, an Army member, bought most of his talcum products at the military commissary. He never bought them at a CVS in New York and rarely bought a generic version at a CVS in Virginia. Mrs. Castro did not recall buying such products at CVS. The Castros then stipulated to dismiss CVS without prejudice. Because CVS was no longer a party, the magistrate judge recommended denying all three motions as moot. The Castros could file a new motion to amend if needed, and the scheduling order stayed in effect.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Western District of New York
• Decided: July 13, 2020
• Docket: No. 19-CV-279 (JLS)
• Stage: Motion to dismiss
• State: New York

Outcome. The magistrate judge recommended denying as moot all three pending motions (CVS Pharmacy's two motions to dismiss or transfer and the Castros' cross-motion for leave to amend) because the Castros had dismissed CVS without prejudice, leaving the scheduling order in place.

Issues decided: Personal Jurisdiction, Trial Procedure and Discovery.

The people and their exposure

• John Castro: mesothelioma

The defendants

• Colgate-Palmolive Company (manufacturer)
• CVS Pharmacy, Inc. (supplier)
• Cyprus Amax Minerals Company (manufacturer)
• Giant, LLC (supplier)
• Johnson & Johnson (manufacturer)
• Revlon Holdings, Inc. (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Castro v. Colgate-Palmolive Company (April 29, 2020). The magistrate judge recommended denying John and Joyce Castro's motion to remand to state court, so Johnson & Johnson's snap removal stands.
• Castro v. Colgate-Palmolive Company (July 29, 2020). The court adopted the magistrate judge's unopposed recommendation and denied CVS Pharmacy's motions to dismiss or transfer and for lack of personal jurisdiction, and the Castros' cross-motion to amend, all as moot after the Castros stipulated to dismiss CVS without prejudice.
• Castro v. Johnson & Johnson (May 28, 2021). The district court adopted the magistrate judge's unopposed recommendation and granted summary judgment to the Johnson & Johnson defendants, ruling against John and Joyce Castro, whose claims were time-barred.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

John Castro and Joyce Castro, Plaintiffs,

v.

Colgate-Palmolive Company et al., Defendants.

No. 19-CV-279 (JLS).

July 13, 2020.

United States District Court, W.D. New York.

Report and Recommendation

HUGH B. SCOTT, Magistrate Judge.

Plaintiff John Castro believes that he has spent decades of his life using talcum products without realizing that they contained asbestos. John and his wife Joyce now believe that asbestos from talcum products caused John's disease of mesothelioma. John and Joyce accordingly have sued Colgate-Palmolive Company ("Colgate"); CVS Pharmacy, Inc.; Cyprus Amax Minerals Company; Giant, LLC; several corporate entities related to Johnson & Johnson ("Johnson & Johnson," collectively); Revlon Holdings, Inc. ("Revlon"); and some other defendants under various theories of product negligence and strict product liability. The Court addressed this case previously when recommending denial of John and Joyce's motion to remand to state court. (Dkt. Nos. 15, 90.) District Judge John L. Sinatra, Jr. adopted the Report and Recommendation on June 3, 2020. (Dkt. No. 95.)

Recent events now allow the Court to issue a very short Report and Recommendation regarding three other motions that remain pending. Prior to the assignment of this case to Judge Sinatra and to this Court, defendant CVS Pharmacy, Inc. filed a motion to dismiss or to transfer on May 31, 2019. (Dkt. No. 45.) John and Joyce responded in part through a cross-motion for leave to amend their complaint. (Dkt. No. 63.) On April 22, 2020, defendant CVS Pharmacy, Inc. filed an additional motion to dismiss for lack of personal jurisdiction. (Dkt. No. 87.) This most recent motion rested on deposition testimony[1] that

Mr. Castro testified regarding his personal use of talcum powder products through the years and his limited knowledge and experience of purchasing talcum powder products. [See generally Exhibit A.] Mr. Castro was a member of the Army, and the vast majority of the talcum powder products that Mr. Castro used were

purchased at the commissary. [Exh. A at 11:20-22; 39:12-40:6.]

Mr. Castro testified that he never purchased talcum powder products from a CVS store in New York. [Id. at 93:4-94:8.] He only remembers purchasing talcum powder products from CVS stores in Virginia, and even then his purchases were rare. [Id. at 93:9-18.] He only recalls buying a generic version of a talcum powder product from a CVS store about once a year when the commissary did not have his preferred product in

stock. [Id. at 92:14-93:8.] Mrs. Castro was even more direct. She testified that she does not remember ever purchasing a relevant talcum powder product from CVS. [Exhibit B, February 14, 2020 Deposition of Joyce Castro at 80:1-16.]

(Dkt. No. 88 at 3.) In response to the most recent motion, John and Joyce stipulated to dismiss CVS Pharmacy, Inc. from the case without prejudice. (Dkt. No. 93.) Judge Sinatra endorsed the stipulation on May 12, 2020. (Dkt. No. 94.) The departure of CVS Pharmacy, Inc. from the case leaves all three pending motions more or less moot. The two motions to dismiss by CVS Pharmacy, Inc. certainly are moot. John and Joyce's cross-motion seeks leave to amend the complaint, but only as alternative relief while opposing the first motion to dismiss by CVS Pharmacy, Inc. Prudence warrants allowing John and Joyce to file a new motion for leave to amend, if necessary, to reflect updated circumstances. Any new motion would have to explain the need to amend beyond the May 22, 2020 deadline to amend that had been set in the current scheduling order. (Dkt. No. 86 at 2.)

Consequently, the Court respectfully recommends denying all three motions that are currently pending. (Dkt. Nos. 45, 63, 87.) Meanwhile, the current scheduling order (Dkt. No. 86) will stay in effect for now, but the remaining parties are welcome

to request a status conference at any time to address any matters that might require the Court's attention. OBJECTIONS

A copy of this Report and Recommendation will be sent to counsel for the parties by electronic filing on the date below. "Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). Any objections must be filed electronically with the Clerk of the Court through the CM/ECF system.

"As a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point." Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (citations omitted); see also Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision.") (citation omitted). "We have adopted the rule that failure to object timely to a magistrate judge's report may operate as a waiver of any further judicial review of the decision, as long as the parties receive clear notice of the consequences of their failure to object. The rule is enforced under our supervisory powers and is a nonjurisdictional waiver provision whose violation we may excuse in the interest of justice." United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 38-39 (2d Cir. 1997) (internal quotation marks and citations omitted).

"Where a party only raises general objections, a district court need only satisfy itself there is no clear error on the face of the record. Indeed, objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original papers will not suffice to invoke de novo review. Such objections would reduce the magistrate's work to something akin to a meaningless dress rehearsal." Owusu v. N.Y. State Ins., 655 F. Supp. 2d 308, 312-13 (S.D.N.Y. 2009) (internal quotation and editorial marks and citations omitted). "In addition, it would be fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait to see which way the wind was blowing, and—having received an unfavorable recommendation—shift gears before the district judge." Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) (citation omitted).

SO ORDERED.

[1] Due to the unusual early procedural history of this case, the depositions of John and Joyce took place on a voluntary basis on May 22, 2019 and February 14, 2020. (Dkt. Nos. 88-1 at 2, 88-2 at 2.) To their credit, the parties agreed to the depositions even without a scheduling order because of concerns about the state of John's health. For the limited purpose of this short Report and Recommendation, the Court has accepted the deposition testimony as if it had proceeded under Rules 29 and 27, even if the parties never invoked those rules explicitly.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites