Hooper-Lynch v. Imerys Talc America (In re New York City Asbestos Litigation, 2018)

Our plain-English summary of In re New York City Asbestos Litigation (New York Supreme Court, December 3, 2018).

Desiree Hooper-Lynch, a New York citizen, was diagnosed with mesothelioma in April 2015. She sued Colgate-Palmolive and others, alleging she was exposed to asbestos in Cashmere Bouquet cosmetic talc powder from about 1968 through 1985. She claimed that Imerys Talc America and Cyprus Amax Minerals supplied the raw talc used to make that powder. Imerys and Cyprus Amax asked the New York County Supreme Court to dismiss the claims against them for lack of personal jurisdiction. They said both are Delaware corporations with principal places of business in California and Arizona, with no New York offices or property. They also argued they had no liability for talc made before 1979. The court agreed there was no general jurisdiction, because neither company is incorporated or based in New York. It found specific jurisdiction under New York's long-arm statute, CPLR 302(a)(1). At least from 1979 through 1985 the companies sold and shipped talc to Colgate-Palmolive in New York continuously, and that talc went into the powder allegedly sold to the plaintiff there. The motion to dismiss was denied.

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: December 3, 2018
• Citation: 2018 NY Slip Op 33069
• Docket: Docket No. 190328/2015, Motion Seq. No. 003
• Stage: Motion to dismiss
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied Imerys Talc America and Cyprus Amax Minerals' motion to dismiss plaintiff Desiree Hooper-Lynch's claims and all cross-claims for lack of personal jurisdiction, finding specific jurisdiction under CPLR 302(a)(1).

What the court held. A non-domiciliary defendant that sold and shipped talc into New York on a continuous basis, which was used in a product sold to the plaintiff in New York, transacts business here with an articulable nexus to the claim, supporting specific jurisdiction under CPLR 302(a)(1) even though there is no general jurisdiction.

Issues decided: Personal Jurisdiction.

The people and their exposure

• Desiree Hooper-Lynch: mesothelioma

The defendants

• Imerys Talc America, Inc. (supplier)
• Cyprus Amax Minerals, Co. (supplier)
• Colgate-Palmolive Co. (manufacturer)

Other decisions in this case

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

• Hooper-Lynch v. Colgate-Palmolive Co. (December 4, 2018). The court granted Imerys Talc America and Cyprus Amax Minerals summary judgment on plaintiff's claims for 1968-1979 exposure, which plaintiff did not dispute, but denied it for 1980-1985 because expert testimony conflicted.
• Hooper-Lynch v. Colgate-Palmolive Co. (December 10, 2018). The trial court denied Colgate-Palmolive's motion for summary judgment dismissing the plaintiff's claims and all cross-claims, so the plaintiff's case proceeds toward trial.

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.

2018 NY Slip Op 33069(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATION,

DESIREE HOOPER-LYNCH, Plaintiff,

v.

COLGATE-PALMOLIVE CO., etal, Defendants.

Docket No. 190328/2015, Motion Seq. No. 003.

Motion November 28, 2018.

December 3, 2018.

Supreme Court, New York County.

MANUEL J. MENDEZ, Judge.

It is Ordered that defendants Imerys Talc America, Inc. (hereinafter individually "Imerys") and Cyprus Amax Minerals, Co.'s (hereinafter individually "CAMC") motion to dismiss Plaintiff's claims and all cross-claims asserted against them, for lack of personal jurisdiction pursuant to CPLR § 3211(a)(8), CPLR § 301 and CPLR § 302 (a), is denied.

Plaintiff, Desiree Hooper-Lynch, a citizen of New York, was diagnosed with mesothelioma in April of 2015. Plaintiff alleges she was exposed to asbestos in a variety of ways including from the use of Colgate Palmolive Company's cosmetic talc products, Cashmere Bouquet. Plaintiff alleges she was exposed to asbestos containing talc in Cashmere Bouquet from approximately 1968 through 1985. Plaintiff asserts claims against Imerys and CAMC (hereinafter referred to jointly as "defendants") alleging that they supplied the raw talc to Colgate Palmolive that was used to make Cashmere Bouquet. This action was commenced on October 16, 2015 to recover for plaintiff's injuries resulting from exposure to asbestos (Mot., Exh. A).

The moving defendants now move to dismiss the action pursuant to CPLR § 3211 (a)(8) for lack of personal jurisdiction. Defendant Imerys alleges that it is a Delaware Corporation with its principal place of business in California, it is not a New York resident, It has no offices in New York, nor does it own or lease property in New York, it is not registered to do business in New York, has no New York address or bank account, does not mine, manufacture, research, develop, design or test talc or talcum powder in New York and has never sued anyone in New York (Mot., Patrick Downey Aff.)

Defendant CAMC alleges that it is a Delaware Corporation with its principal place of business in Arizona, it is not a New York resident, It has no offices in New York, nor does it own or lease property in New York, it is not registered to do business in New York, has no New York address or bank account, does not mine, manufacture, research, develop, design or test talc or talcum powder in New York and has never sued anyone in New York (Mot., Patrick Downey Aff.).

The moving defendants make this motion to dismiss for lack of personal jurisdiction pursuant to CPLR § 3211(a)(8). They argue that they have been found to have no liability for the talc used in Cashmere Bouquet prior to 1979, because the talc was produced by a predecessor company for whom defendants did not acquire liabilities. Defendants also argue that this court does not have personal jurisdiction over them because the moving defendants are not incorporated in New York and do not maintain their principal place of business here, therefore there is no general jurisdiction. Furthermore, defendants argue that plaintiffs' claims do not arise from any of the moving defendants New York transactions, and the moving defendants did not commit a tortious act within the State of New York or without the state of New York that caused an injury to person or property within the State of New York, therefore there is no specific jurisdiction. (see CPLR § 302(a)(1) and (2)). In support of their motion the moving defendants cite to Daimler v. Bauman, (134 S. Ct. 746, [2014] where the United States Supreme Court reversed the Ninth Circuit Court of Appeals and held that due process did not permit exercise of general personal jurisdiction over a German corporation in California based on the services performed in California by its United States Subsidiary, when neither the parent German corporation or the Subsidiary were incorporated in California or had their principal place of business there. General jurisdiction over a corporation can only be exercised where the corporation is at home. Absent "exceptional circumstances" a corporation is at home where it is incorporated or where it has its principal place of business.

The moving defendants also argue that there is no specific jurisdiction over them. In support of their motion defendants cite to the decision in Bristol-Myers Squibb Company v. Superior Court of California, San Francisco County, etal, (137 S.Ct. 1773 [June 19, 2017]), where the United States Supreme court dismissed the claims of non-California residents in a products liability action for lack of specific personal jurisdiction, where the non-residents did not suffer a harm in California and all the conduct giving rise to their claims occurred elsewhere.

In sum the moving defendants argue that this court lacks personal general and specific jurisdiction over them and therefore the claims should be dismissed.

Plaintiff opposes the motion on the ground that there is personal jurisdiction over the moving defendants under New York State's long-arm statute. Plaintiff alleges that this court has jurisdiction over the moving defendants because they or their predecessors transacted business in the state to supply goods or services in the state and their actions gave rise to Ms. Hooper-Lynch's exposure. Plaintiff alleges that the moving defendants' supply of asbestos-contaminated talc to Colgate -Palmolive in New York, directly contributed to her alleged injuries. Furthermore, plaintiff alleges that the moving defendants actively participated in numerous CTFA meetings in New York, engaging in tortious conduct in New York that ultimately gave rise to this action.

"On a motion to dismiss pursuant to CPLR § 3211, [the court] must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible inference and determine only whether the facts alleged fit within any cognizable legal theory" (Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y. 2d 409, 754 N.E. 2d 425, 729 N.Y.S. 2d 425 [2001]). A motion to dismiss pursuant to CPLR § 3211 (a)(8) applies to lack of jurisdiction over the defendant. Jurisdiction over a non-domiciliary is governed by New York's CPLR § 301, and the long-arm provisions of CPLR § 302.

The plaintiff bears the burden of proof when seeking to assert jurisdiction (Lamarr v. Kiein, 35 A.D. 2d 248, 315 N.Y.S. 2d 695 [1st Dept., 1970]). However, in opposing a motion to dismiss the plaintiff needs only to make a sufficient showing that its position is not frivolous (Peterson v. Spartan Industries, Inc., 33 N.Y. 2d 463, 310 N.E. 2d 513, 354 N.Y.S. 2d 905 [1974]). General Jurisdiction:

"General Jurisdiction permits a court to adjudicate any cause of action against the defendant, wherever arising, and whoever the plaintiff (Lebron v. Encarnacion, 253 F.Supp3d 513 [E.D.N.Y. 2017]). "For a corporation the paradigm forum for general jurisdiction, that is the place where the corporation is at home, is the place of incorporation and the principal place of business (Daimler AG v. Bauman, 134 S. Ct. 746, 187 L.Ed.2d 624 [2014]; Goodyear Dunlop Tires Operations, S.A., v. Brown, 564 U.S. 915, 131 S.Ct. 2846, 180 L.Ed2d 796 [2011]; BNSF Railway Co., v. Tyrrell, 137 S.Ct. 1549 [2017])." In BNSF Railway Co., v. Tyrrell (137 S.Ct. 1549 [May 30, 2017]) the United States Supreme Court dismissed the claim for lack of General personal jurisdiction of non-Montana residents, who were not injured in Montana, where defendant Railroad was not incorporated in Montana, nor maintained its principal place of business there.

This court could not exercise General Personal jurisdiction over the defendants Imerys or CAMC because they are not incorporated, nor do they have their principal place of business in the State of New York. Defendant Imerys is a Delaware corporation, with its principal place of business in the State of California. Defendant CAMC is a Delaware Corporation, with its principal place of business in the State of Arizona.

Specific Jurisdiction:

"For the court to exercise specific jurisdiction over a defendant the suit must arise out of or relate to the defendant's contacts with the forum. Specific Jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction. When no such connection exists specific jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State. What is needed is a connection between the forum and the specific claims at issue (Bristol-Myers Squibb Co., v. Superior Court of California, San Francisco, 136 S.Ct. 1773 [2017])." "It is the defendant's conduct that must form the necessary connection with the forum state that is the basis for its jurisdiction over it. The mere fact that this conduct affects a plaintiff with connections with a foreign state does not suffice to authorize jurisdiction (See Bristol Myers Squibb Co., Supra; Walden v. Fiore, 134 S. Ct. 1115 [2014])." "To justify specific personal

jurisdiction over a non-resident defendant, a plaintiff must show that the claim arises from or relates to the defendant's contacts in the forum state" (In re MTBE Products Liability Litigation, 399 F.Supp2d 325 [S.D.N.Y. 2005]). "Application of New York's long-arm statute requires that (1) defendant has purposefully availed itself of the privilege of conducting activities within the state by either transacting business in New York or contracting anywhere to supply goods or services in New York, and (2) the claim arises from that business transaction or from the contract to provide goods or services" (Mckinney's CPLR 302(a)(1)).

"Jurisdiction is proper under the transacting of business provision of New York's long-arm statute even though the defendant never enters New York, so long as the defendant's activities in the state were purposeful and there is a substantial relationship between the transaction and the claim asserted (McKinney's CPLR 302(a)(1), Al Rushaid v. Pictet & Cie, 28 N.Y.3d 316, 68 N.E.3d 1, 45 N.Y.S.3d 276 [2016]).

"A non-domiciliary defendant transacts business in New York when on their own initiative the non-domiciliary projects itself into this state to engage in a sustained and substantial transaction of business. However, it is not enough that the non-domiciliary defendant transact business in New York to confer long-arm jurisdiction. In addition, the plaintiff's cause of action must have an "articulable nexus" or "substantial relationship with the defendant's transaction of business here. At the very least there must be a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former, regardless of the ultimate merits of the claim. This inquiry is relatively permissive and an articulable nexus or substantial relationship exists where at least one element arises from the New York contacts" (see D& R. Global Selections, S.L., v. Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 78 N.E.3d 1172, 56 N.Y.S.3d 488 [2017] quoting Licci v. Lebanese Can. Bank, SAL, 20 N.Y.3d 327, 984 N.E.2d 893, 960 N.Y.S.2d 695 [2012]).

This court can exercise specific personal jurisdiction over the moving defendants under CPLR § 302(a)(1) because there is an articulable nexus or substantial relationship between their in state conduct and the claims asserted. This section of the statute is triggered when a defendant transacts business in New York and the cause of action asserted arises from that activity. The moving defendants at least from 1979 through 1985 sold talc and shipped it to Colgate-Palmolive in New York on a continuous basis, the allegedly asbestos-contaminated talc was used in the manufacture of Cashmere Bouquet talc powder, which was subsequently sold to plaintiff in New York. It is alleged that Ms. Hooper-Lynch's injury arose from the use of Cashmere Bouquet talc powder containing the asbestos-contaminated talc shipped into New York by the moving defendants.

Plaintiff has established that long-arm jurisdiction should be exercised over the moving defendants under CPLR 302(a)(1). Accordingly, the motion to dismiss for lack of personal jurisdiction is denied.

Accordingly, it is ORDERED that defendants Imery's Talc America, Inc., and Cyprus Amax Minerals, Co.'s motion to dismiss Plaintiff's claims and all cross-claims asserted against them, for lack of personal jurisdiction pursuant to CPLR § 3211(a)(8), CPLR § 301 and CPLR § 302(a), is denied.

Sources

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