Gold v. Avon Prods., Inc. (2023)

Our plain-English summary of Gold v. Avon Prods., Inc. (New York Supreme Court, September 6, 2023).

The co-executors of the estate of Victoria Kaye sued several companies, including Revlon, in a New York asbestos case. Ms. Kaye had mesothelioma and was deceased. She said she used Charlie talcum body powder from about 1968 to 1976, and plaintiffs say testing showed the talc in that powder contained asbestos. Revlon asked for summary judgment. It argued that it did not create a Charlie brand until 1974, that there was no evidence its talc contained asbestos, and that talc itself does not cause mesothelioma. The court denied the motion. It said Revlon had to show unequivocally that its product could not have contributed to her illness. Revlon's corporate witness had no personal knowledge of the period and did not know when Charlie powder was first made. Ms. Kaye had clearly identified Revlon as the maker, down to the label and box color. Revlon offered only criticism of the plaintiffs' studies and no affirmative proof that its product contained no asbestos. Questions of fact remained for trial.

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: New York Supreme Court
• Decided: September 6, 2023
• Citation: 2023 NY Slip Op 33114(U)
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The trial court denied defendant Revlon's motion for summary judgment in its entirety, so the claims by Victoria Kaye's estate against Revlon continue.

What the court held. On summary judgment in the First Department, the moving defendant must unequivocally establish that its product could not have contributed to the plaintiff's injury; Revlon did not meet that burden given the decedent's product-identification testimony and its lack of evidence that its product could not have contained asbestos.

Issues decided: Causation, Product Identification.

The people and their exposure

• Victoria Kaye: mesothelioma; died

Who	Work	Where	When	Products
Victoria Kaye	user of body powder		1968-1976	talc and vermiculite, Charlie talcum powder / body powder (Revlon)

The defendants

• Revlon, Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Reid v. Georgia-Pac. Corp. (New York Supreme Court, Appellate Division, 1st Dept., 1995). The Appellate Division affirmed the denial of Rapid-American Corporation's motion for summary judgment, so plaintiff Kenneth Reid's claim against it continues.

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.

2023 NY Slip Op 33114(U)

MERRITT ELLIS GOLD AND PAULA THERESE NEARY, AS CO-EXECUTORS OF THE ESTATE OF

VICTORIA Motion KAYE, DECEASED, Plaintiff,

v.

AVON PRODUCTS, INC., BLOOMINGDALES, INC., BRENNTAG NORTH AMERICA, INC.,

INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO MINERAL PIGMENT SOLUTIONS, INC., AS

SUCCESSOR IN INTEREST TO WHITTAKER, CLARK & DANIELS, INC., BRENNTAG SPECIALTIES,

INC. F/K/A MINERAL PIGMENT SOLUTIONS, INC. AND AS SUCCESSOR IN INTEREST TO

WHITTAKER, CLARK & DANIELS, INC., CHANEL CO., CHANEL, INC., COTY INC., COTY

INTERNATIONAL INC., GLAXOSMITHKLINE, LLC, INDIVIDUALLY AND AS SUCCESSOR-IN-

INTEREST TO YARDLEY OF LONDON, INC., YARDLEY OF LONDON, LTD., AND YARDLEY OF

LONDON (U.S.), LLC, MACYS, INC., MINERAL AND PIGMENT SOLUTIONS, INC., F/K/A

WHITTAKER, CLARK & DANIELS, INC., PFIZER INC., INDIVIDUALLY AND AS SUCCESSOR IN

INTEREST TO COTY INC. AND COTY INTERNATIONAL INC., REVLON, INC., THE PROCTOR &

GAMBLE COMPANY, AS SUCCESSOR IN INTEREST TO THE SHULTON COMPANY AND AS

SUCCESSOR IN INTEREST TO YARDLEY OF LONDON, INC., YARDLEY OF LONDON, LTD., AND

YARDLEY OF LONDON (U.S.), LLC, WHITTAKER, CLARK & DANIELS, INC. Defendant.

Index No. 190165/2019, Motion Seq. No. 003.

Motion January 11, 2021.

September 6, 2023.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 162, 163, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424 were read on this motion to/for JUDGMENT — SUMMARY.

Upon the foregoing documents, it is ordered that the instant motion for summary judgment seeking dismissal of this action, pursuant to CPLR §3212, is denied for the reasons set forth below.

Here, defendant Revlon, Inc. ("Revlon") moves to dismiss this asbestos action on the grounds that plaintiff decedent (Ms. Kaye) was not exposed to asbestos from any Revlon product during her use of Charlie talcum powder from approximately 1968-1976. Defendant Revlon primarily argues that they did not create a "Charlie" brand until 1974, and that this should be dispositive as to whether Ms. Kaye's contested Charlie talcum powder was manufactured by Revlon. See Memorandum of Law in Support of Defendant Revlon's Motion for Summary Judgment, p. 6. Revlon also argues that there is no evidence their talc contained asbestos, and that talc itself does not cause mesothelioma. Id. Plaintiff opposes, noting that Ms. Kaye unequivocally identified Revlon as the manufacturer of Charlie body powder, and that testing exists which has concluded that the talc used in the body powder contained asbestos. See Memorandum of Law in Opposition to Revlon's Motion for Summary Judgment, p. 4-5; 9-10. Defendant Revlon replies, reiterating their claim that Charlie body powder was not manufactured during the time of Ms. Kaye's use and refuting the talc studies cited by plaintiff.

The Court notes that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See id. at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 (1st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1st Dep't 1990). The court's role is "issue-finding, rather than issue-determination". Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations omitted). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. See Ugarriza v Schmieder, 46 NY2d 471, 475-476 (1979). Furthermore, the Appellate Division, First Department has held that on a motion for summary judgment, it is moving defendant's burden "to unequivocally establish that its product could not have contributed to the causation of plaintiff's injury". Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 (1st Dep't 1995).

Here, Defendant Revlon's primary evidence for disclaiming the Charlie powder used by Ms. Kaye is the deposition of Michael Helman, Revlon's corporate representative. Mr. Helman's deposition does not display the requisite personal knowledge to dispel with certainty any questions of fact. He did not appear to work in Revlon manufacturing or product development and did not work at Revlon during the time period relevant herein. Further, upon initially being deposed, he " [didn't] have a lot of familiarity with" Revlon's Charlie brand. See Memorandum of Law in Support, Exh. O, Deposition Transcript of Michael Helman dated Oct. 4, 2018, p. 17, In. 24-25. Mr. Helman had no knowledge regarding the time frame Revlon's Charlie powder was sold or when it was first manufactured. See id., Exh. O at p. 19. After consultation with an employee who was employed at Revlon during the 1970s, Mr. Helman testified that the Charlie body powder had begun manufacturing in 1973-1974 but confirmed that his source was also unaware of the exact manufacturing scope and had no other references as to the relevant details. See id., Exh. P, Deposition Transcript of Michael Helman dated Jan. 6, 2021, p. 57. Plaintiff notes that Ms. Kaye offered clear and unequivocal testimony identifying Revlon as the manufacturer of Charlie powder, even identifying the label and color of the box, and that she used the powder until 1976. This is sufficient to raise issues of fact.

Furthermore, Defendant Revlon failed to offer any evidence that their product could not have contained asbestos or contributed to Ms. Kaye's mesothelioma. They attempt to dispel with plaintiffs studies by criticizing the methodologies used but do nothing to establish an affirmative prima facie case that their product could not have contained asbestos and could not have contributed to Ms. Kaye's mesothelioma. Thus, defendant Revlon has failed to meet its burden on summary judgment. Moreover, plaintiff has adequately established that issues of fact exist regarding Revlon's liability for Charlie brand body powder, the possible asbestos-contamination of talc used in such powder, and the extent of Ms. Kaye's exposure to such asbestos.

Accordingly, it is

ORDERED that defendant Revlon's motion for summary judgment is denied in its entirety; and it is further ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this Decision/Order with notice of entry. This constitutes the Decision/Order of the Court.

Sources

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