In re NYC Asbestos Litigation (N.Y. Sup. Ct., May 20, 2019)

Our plain-English summary of In re New York City Asbestos Litigation (New York Supreme Court, May 20, 2019).

Beverley Alleyne, a United Kingdom citizen who visited her father's family in Brooklyn, New York, between 1980 and 2010, was diagnosed with epithelioid mesothelioma in March 2017. She sued several defendants, including Chanel, Inc., claiming she was exposed to asbestos by using Chanel talcum powder, which she bought in New York department stores and in London. Chanel asked the court for summary judgment, arguing she could not show asbestos exposure from its talc and that her experts could not establish contamination or general causation. Chanel offered only an attorney's affirmation, the pleadings and her deposition, with no expert or corporate witness. The court denied the motion. It held that an attorney's affirmation is hearsay, that pointing to gaps in plaintiff's proof is not enough, and that Chanel had not shown its product could not have contributed to her disease. Plaintiff's evidence, including testing by Dr. Longo that found tremolite in historic Chanel No. 5 samples and Dr. Moline's causation opinion, raised triable issues of fact.

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: May 20, 2019
• Citation: 2019 NY Slip Op 31416
• Docket: Docket No. 190295/2017, Motion Seq. No. 003
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied Chanel, Inc.'s motion for summary judgment dismissing plaintiff Beverley Alleyne's complaint and cross-claims, finding triable issues of fact.

What the court held. A defendant seeking summary judgment in an asbestos case must make a prima facie showing, through admissible evidence, that its product could not have contributed to the plaintiff's illness; pointing to gaps in plaintiff's proof, or relying on an attorney's affirmation without expert or corporate-representative proof, is not enough.

Issues decided: Causation, Expert Testimony, Product Identification.

The people and their exposure

• Beverley Alleyne: mesothelioma

Who	Work	Where	When	Products
Beverley Alleyne	consumer using talcum powder during visits to family	Brooklyn, New York	1980-2010	talc and vermiculite, tremolite, Chanel, Inc. talcum powder; Chanel No. 5 bath powder; Italian AGI 1615 talc

The defendants

• Chanel, Inc. (manufacturer)

Other decisions in this case

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

• Alleyne v. Whittaker Clark & Daniels (In re New York City Asbestos Litigation) (May 24, 2019). The court granted Whittaker Clark & Daniels' summary judgment motion only as to punitive damages, claims after 2004, and Johnson & Johnson Baby Powder claims for 1986-1997, and denied it otherwise, so plaintiff Alleyne's remaining talc claims go to trial.
• Alleyne v. Revlon (In re New York City Asbestos Litigation) (May 29, 2019). The court granted Revlon's summary judgment motion only as to the conspiracy cause of action, denied it on the remaining claims, denied plaintiff Alleyne's cross-motion to compel discovery, and granted Revlon a protective order.
• Alleyne v. Revlon (Matter of New York City Asbestos Litigation) (June 4, 2019). The trial court denied Revlon's motion to exclude plaintiff Beverley Alleyne's expert Dr. Longo's May 10, 2019 report, adjourned the trial to October 15, 2019 so defendants could test the talc samples, and precluded any later Longo reports on Revlon's Charlie powder.
• Alleyne v. AO Smith Water Prods. Co. (June 27, 2019). The court denied, with leave to renew, defendant Chanel, Inc.'s motion for an open commission to subpoena four out-of-state nonparty sellers of the talcum powder samples tested by plaintiff's expert, so plaintiff prevailed on the motion.
• Alleyne v. Chanel (In re New York City Asbestos Litigation) (September 9, 2019). The court denied plaintiff Beverley Alleyne's motion to compel Chanel, Inc. to produce its Chanel No. 5 fragrance formulas from 1924 to 2017 or, alternatively, to bar Chanel from challenging the authenticity of the samples her expert tested.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• O'connor v. Aerco International, Inc. (New York Supreme Court, Appellate Division, 3rd Dept., 2017). The Appellate Division reversed the three orders that had granted summary judgment to Fisher Scientific, Thomas Scientific and VWR International, and denied their motions, so the plaintiffs' claims against them continue.
• Berensmann v. Georgia-Pacific (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2014). The appellate court dismissed the claims about Georgia-Pacific's wallboards because it never made asbestos wallboard, but otherwise affirmed the denial of Georgia-Pacific's summary judgment motion, so plaintiffs' joint compound claims proceed.
• DiSalvo v. Neles-Jamesbury (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2014). The Appellate Division affirmed the denial of summary judgment to Neles-Jamesbury, Inc., holding it had not met its initial burden, so plaintiff Carl DiSalvo prevailed on the appeal.
• Diedrich v. Robert A. Keasbey Co. (IN the Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2004). The Appellate Division affirmed the denial of summary judgment to Robert A. Keasbey Company, so the executrix's claims go to trial.
• 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.

2019 NY Slip Op 31416(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATION

BEVERLEY ALLEYNE, Plaintiffs,

v.

A.O. SMITH WATER PRODUCTS CO., etal, Defendants.

Docket No. 190295/2017, Motion Seq. No. 003.

Motion May 15, 2019.

May 20, 2019.

Supreme Court, New York County.

MANUEL J. MENDEZ, Judge.

It is Ordered that defendant Chanel, Inc.'s motion pursuant to CPLR §3212 for summary judgment dismissing the complaint and all cross-claims asserted against it, is denied.

Plaintiff, Beverley Alleyne, was diagnosed epitheliod mesothelioma on March 9, 2017 (Opp. Exh. U). She was born in England in 1960 and is a citizen of the United Kingdom. Her father was a citizen of Brooklyn, New York, and she claims she came to the United States for visits lasting up to a month in 1980 through 2005, afterwards she had shorter visits, the last one was in 2010 (Mot. Exhs. C and D). Ms. Alleyne alleges she was exposed to asbestos in a variety of ways. Her exposure — as relevant to this motion — is from the use of Chanel, Inc.'s talc powder product that was purchased in the United States by plaintiff (Mot. Exhs. C and D).

Plaintiff was deposed over the course of eight days, November 14, 15, 16, and 17, 2017 and January 9, 10, 11, and 12, 2018 (Mot. Exhs. D, 1-8). She testified that in 1980, 1984, 1994, 2005, 2006, 2007, 2008 and 2010, when she visited her father and his family in Brooklyn, New York she would buy and use Chanel, Inc. talcum powder purchased at department stores in Brooklyn and Manhattan. She claimed that she would purchase three or four packages of talc while visiting the United States but not all at the same time. Plaintiff stated that she also supplemented the talcum powder supply by purchasing Chanel, Inc.'s talcum powder from stores in London, including after 2010 (Mot. Exh. D, Day 3-11/16/17, pgs. 337-348, and Day 4-11/17/17, pgs. 575-583).

Plaintiff did not recall the specific scent or name of the Chanel, Inc. talcum powder. Plaintiff remembered that the Chanel, Inc. powder she used came in a white cardboard box with the word "CHANEL" written in silver block capital letters, with the Channel, Inc. Logo, and the words "London, Paris, New York." She described the inner packaging as a round container with a white lid and silver around the bottom of the lid, with a white powder puff that had two C's and a couple of little bows (Mot. Exh. D, Day 4-11/17/17, pgs. 574-578 and 577, 586-587 and 591). Plaintiff testified that one container had about eight ounces of powder in it. She used the Chanel, Inc. talcum powder a lot, multiple times a month and that one container would last between six and eight weeks. She preferred to use Channel Inc.'s talcum powder over any others because it was a bit of luxury (Mot. Exh. D, Day 4-11/17/17, pgs. 579-580).

Plaintiff stated that she used a powder puff to apply talcum powder all over her body (Mot. Exh. D, Day 2-11/15/17, pgs. 307-308). Plaintiff testified that when she used Chanel, Inc. talcum powder it would make the bathroom dusty, a portion of the powder would linger in the air and then fall to the floor around her body creating footprints when she walked (Mot. Exh. D, Day 8-01/12/18, pgs. 1070-172).

Plaintiff commenced this action on October 5, 2017 (Mot. Exh. A). Chanel, Inc. served its Verified Answer to the Complaint on August 28, 2018 (Mot. Exh. B).

Chanel, Inc.'s motion seeks an Order granting summary judgment, pursuant to CPLR §3212, dismissing the plaintiffs' complaint and all cross-claims asserted against it.

To prevail on a motion for summary judgment the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact (Klein v City of New York, 81 NY2d 833,

652 NYS2d 723 [1996]). It is only after the burden of proof is met that the burden switches to the non-moving party to rebut that prima facie showing, by producing contrary evidence in admissible form, sufficient to require a trial of material factual issues (Amatulli v Delhi Constr. Corp., 77 NY2d 525, 569 NYS2d 337 [1999]). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party by giving the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (SSBS Realty Corp. v Public Service Mut. Ins. Co., 253 AD2d 583, 677 NYS2d 136 [1st Dept. 1998]).

In support of its motion for summary judgment Chanel, Inc. relies on the affirmation of its attorney, the pleadings, plaintiffs' responses to interrogatories, and Ms. Alleyne's deposition transcripts (Mot. Exhs. A, B, C 1-2, and D 1-8). Chanel, Inc. provides no affidavit or deposition testimony of a corporate representative, or of its own experts.

An attorney's affirmation, alone, is hearsay that may not be considered, and does not support, prima facie entitlement to summary judgment (Kase v. H.E.E. Co., 95 A.D. 3d 568, 944 N.Y.S. 2d 95 [1st Dept., 2012] citing to Zuckerman v. City of New York, 49 N.Y. 2d 557, 404 N.E. 2d 718, 427 N.Y.S. 2d 595 [1980). A motion for summary judgment can be decided on the merits when an attorney's affirmation is used for the submission of documentary evidence in admissible form and annexes proof from an individual with personal knowledge, such as plaintiff's deposition testimony (See Aur v. Manhattan Greenpoint Ltd., 132 A.D. 3d 595, 20 N.Y.S. 3d 6 [1st Dept.,2015] and Hoeffner v. Orrick, Herrington & Sutcliffe LLP, 61 A.D. 3d 614, 878 N.Y.S. 2d 717 [1st Dept. 2009]).

Chanel, Inc. argues that it is entitled to summary judgment on causation because plaintiff cannot show she was exposed to asbestos through her use of any Chanel, Inc. talc product, and that her claims amount to assertions of potential contamination, not asbestos exposure. Chanel, Inc. further argues that plaintiff's experts, are unable to establish asbestos contamination in talc or that any asbestos contaminated talc was capable of causing her mesothelioma sufficient to establish general causation. These arguments made by Chanel, Inc. do not establish its entitlement to summary judgment. A defendant cannot obtain summary judgment simply by "pointing to gaps in plaintiffs' proof" (Ricci v. A.O. Smith Water Products, 143 A.D. 3d 516, 38 N.Y.S. 3d 797 [1st Dept. 2016] and Koulermos v A.O. Smith Water Prods., 137 A.D. 3d 575, 27 N.Y.S. 3d 157 [1st Dept. 2016]). Regarding asbestos, a defendant must make a prima facie showing that its product could not have contributed to the causation of plaintiff's illness (Comeau v W. R. Grace & Co.-Conn. (Matter of New York City Asbestos Litig.), 216 AD2d 79, 628 NYS2d 72 [1st Dept. 1995] citing to Reid v. Georgia — Pacific Corp., 212 A.D.2d 462, 622 N.Y.S. 2d 946 [1st Dept., 1995], DiSalvo v. A.O. Smith Water Products (In re New York City Asbestos Litigation), 123 A.D. 3d 498, 1 N.Y.S. 3d 20 [1st Dept. 2014] and O'Connor v. Aerco Intl., Inc., 152 A.D. 3d 841, 57 N.Y.S. 3d 766 [3rd Dept., 2017]). Defendants must unequivocally establish that Ms. Alleyne either was not exposed to asbestos from their products, or that the levels of asbestos she was exposed to were not sufficient to contribute to the development of her mesothelioma (Berensmann v. 3M Company (Matter of New York City Asbestos Litig.), 122 A.D. 3d 520, 997 N.Y.S. 2d 381 [1st Dept., 2014]).

Chanel, Inc.'s argument that plaintiff cannot provide evidence or raise an issue of fact that she was exposed to asbestos through the use of contaminated Chanel, Inc. talcum powder products during the relevant period of about 1980 through 2010, is not a basis to obtain summary judgment. Chanel, Inc.'s failure to provide any expert evidence or proof from a corporate representative in support of its arguments renders them speculative, conclusory and insufficient to obtain summary judgment.

Alternatively, plaintiff as the non-moving party is entitled to the benefit of all favorable inferences, regardless of her ability to provide a detailed description of her exposure.

"In asbestos-related litigation, the plaintiff on a summary judgment motion must demonstrate that there was actual exposure to asbestos from the defendant's product" (Cawein v Flintkote Co., 203 AD2d 105, 610 NYS2d 487 [1st Dept 1994]). The Plaintiff need "only show facts and conditions from which defendant's liability may be reasonably inferred" (Reid v Ga.-Pacific Corp., 212 AD2d 462, 622 NYS2d 946 [1st Dept. 1995]). A plaintiff's inability to recall exact details of the exposure is not fatal to the claim and should not automatically result in the granting of summary judgment (Lloyd v W.R. Grace & Co., 215 AD2d 177, 626 NYS2d 147 [1st Dept. 1995]). Summary judgment must be denied when the plaintiff has "presented sufficient evidence, not all of which is hearsay, to warrant a trial" (Oken v A.C. & S. (In re N.Y.C. Asbestos Litig.), 7 AD3d 285, 776 NYS2d 253 [1st Dept. 2004]).

Plaintiff's inability to provide detailed and specific identification of Chanel Inc. talc powder product, such as the scent or name of the fragrance, is not enough to warrant summary judgment. She sufficiently identified the packaging of Chanel,

Inc.'s talcum powder products, frequency of purchase, and use.

Plaintiffs in opposition provide the deposition testimony of Amy Wyatt, Chanel, Inc.'s corporate representative in an unrelated action, wherein she testified that the company relied on its supplier to test the talc for asbestos and that no asbestos was identified in the talc used by the company. She testified that Chanel, Inc. used Italian talc named AGI 1615, Supra A, or Supra H, for all of its talc products until 2010, when it switched to Chinese Talc. She stated that as early as November 18, 1974 Chanel Inc. was using Italian AGI 1615 talc in its Chanel No. 5 bath powder. Ms. Wyatt testified that about 1980 Cyprus acquired the right to supply Italian talc from a different company that was distributing it through Whittaker, Clark & Daniels (Opp. Exh. C, pgs. 85, 149, 180 and 204). At another deposition, Amy Wyatt testified that Chanel Inc. only produced Chanel No. 5, Chanel No. 9 and Gardenia talc bath powders, during the entire time period relevant to plaintiff. She testified that Coco Mademoiselle was first available for sale around 2002 and stopped being sold in 2016 (Opp. Exh. F, pgs. 81-84 and 131-134).

Plaintiff also relies on the expert reports of Dr. William Longo (Opp. Exh. Q, Parts 1-5) and Dr. Jacqueline Moline, M.D., MS.c., FACP, FACOEM, a specialist certified in Occupational and Internal Medicine (Opp. Exh. U).

Dr. Longo's testing of historic samples of Chanel No. 5 talcum powder using Polarized Light Microscopy (PLM), Transmission Electron Microscopy (TEM), and Automated Field Emission Scanning Electron Microscopy (FESEM), found that 18 of 24 samples contained asbestos fibers or bundles, specifically tremolite. He further determined that the Italian AGI 1615 talc mined in Italy and used by Chanel, Inc. in its talc products was contaminated with asbestos (Opp. Exh. Q, Parts 1-5).

Dr. Moline assesses plaintiff's medical and exposure history, past medical history, cigarette history, occupational and environmental history. Dr. Moline relies on medical and scientific literature and states that malignant mesothelioma is in general a dose response disease where all significant exposure to asbestos-containing dust has been shown to cause the disease. Dr. Moline relies on the findings of Dr. Longo and other testing of talc powder and concludes that plaintiff's mesothelioma was caused by asbestos-contaminated talc based powders which includes those produced by Chanel, Inc (Opp. Exh. U).

"It is not the function of the Court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material issues of fact (or point to the lack thereof) (Vega v. Restani Const. Corp., 18 N.Y. 3d 499, 965 N.E. 2d 240, 942 N.Y.S. 2d 13 [2012]). Conflicting testimony raises credibility issues that cannot be resolved on papers and is a basis to deny summary judgment (Messina v. New York City Transit Authority, 84 A.D. 3d 439, 922 N.Y.S. 2d 70 [2011], Almonte v. 638 West 160 LLC, 139 A.D. 3d 439, 29 N.Y.S. 3d 178 [1st Dept., 2016] and Doumbia v. Moonlight Towing, Inc., 160 A.D. 3d 554, 71 N.Y.S. 3d 884 [1st Dept., 2018] citing to S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y. 2d 338, 313 N.E. 2d 776, 357 N.Y.S. 2d 478 [1974]).

Defendant Chanel, Inc.'s failure to provide any expert reports or similar evidence in support of its assertions and conclusions, fails to make a prima facie case. Chanel, Inc.'s argument that it is not necessary to provide an expert affidavit or report, because the attorney's affirmation is being used to submit documentary evidence, is unavailing. The documentary evidence and conclusions submitted by Chanel, Inc.'s attorney, who is not an expert, are hearsay that have no foundation, and are not "proof in admissible form" (Zuckerman v. City of New York, 49 N.Y. 2d 557, 404 N.E. 2d 718, 427 N.Y.S. 2d 595 [1980]). Furthermore, Avon's submissions do not meet the requirements as stated in Parker v. Mobil Oil Corp., 7 NY3d 434, 857 N.E. 2d 1114, 824 N.Y.S. 2d 584 [2006]). To the extent that defendant Chanel, Inc. relies on potentially contradictory evidence, plaintiffs have raised triable issues of fact. There remain issues of fact as to whether Chanel, Inc.'s liability may be reasonably inferred from plaintiff's exposure to asbestos in Chanel Inc.'s talcum powder products she used. Accordingly, it is ORDERED that defendant Chanel, Inc.'s motion pursuant to CPLR §3212 for summary judgment dismissing the complaint and all cross-claims asserted against it, is denied.

Sources

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