Bernard v. Colgate-Palmolive Co. (IN the Matter of New York City Asbestos Litig., 2012)

Our plain-English summary of IN the Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, October 2, 2012).

Three sets of plaintiffs, the Bernards, the Konopka-Sauer family and the Feinbergs, sued Colgate-Palmolive. They claimed that asbestos in its consumer talcum powder, "Cashmere Bouquet," caused mesothelioma. The opinion does not name the people with the disease or describe their exposure beyond use of the product. The trial court consolidated the cases for a joint trial, and Colgate-Palmolive appealed. It argued that it would be prejudiced, that the cases rested on a novel scientific theory, that each plaintiff's case was governed by a different state's law, and that the facts differed among plaintiffs. The First Department affirmed. It found no prejudice shown and said the theory was not novel, because a link between industrial talc and asbestos disease had been established. Choice of law had not yet been raised, and New York, Oregon and Florida use the same causation standard. Any differences could be handled with jury instructions. Common questions predominated: a common disease, a common defendant and a common type of exposure.

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, Appellate Division, 1st Dept.
• Decided: October 2, 2012
• Citation: 2012 NY Slip Op 6551
• Stage: Appeal from other
• State: New York

Outcome. The First Department affirmed the trial court's order consolidating the three plaintiffs' actions against Colgate-Palmolive for a joint trial, rejecting Colgate-Palmolive's challenge.

What the court held. Asbestos actions may be consolidated for joint trial under CPLR 602(a) where they share a common disease, a common defendant and a common type of exposure, and the defendant shows no prejudice. Possible differences in state law do not require separate trials.

Issues decided: Choice of Law, Trial Procedure and Discovery.

The people and their exposure

• Lawrence Bernard: mesothelioma

• Lori Konopka-Sauer: mesothelioma

• Arlene Feinberg: mesothelioma

The defendants

• Colgate-Palmolive Company (manufacturer)

Other decisions in this case

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

• North v. National Grid Generation (IN the Matter of New York City Asbestos Litig.) (August 4, 2016). The First Department affirmed the jury judgment for plaintiff against National Grid ($3.5 million for future pain and suffering), and modified the indemnification order so National Grid also recovers attorneys' fees for defending plaintiff's action against O'Connor, otherwise affirming.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Purcell v. Asbestos Corp., Ltd. (Oregon Court of Appeals, 1998). The Oregon Court of Appeals affirmed the judgment for plaintiff (the estate of John Purcell) against Owens-Corning Fiberglas and E.J. Bartells on the defendants' appeal and on plaintiff's cross-appeal, rejecting the claims of error from both sides.

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.

IN THE MATTER OF NEW YORK CITY ASBESTOS LITIG., 2012 NY Slip Op 6551 - NY: Appellate Div., 1st Dept. 2012 - Google S… 2012 NY Slip Op 06551

IN RE NEW YORK CITY ASBESTOS LITIGATION.

LAWRENCE BERNARD, ET AL., Plaintiffs-Respondents,

v.

BROOKFIELD PROPERTIES CORP., ET AL., Defendants,

COLGATE-PALMOLIVE COMPANY, Defendant-Appellant.

LORI KONOPKA-SAUER, ET AL., Plaintiffs-Respondents,

v.

COLGATE-PALMOLIVE COMPANY, Defendant-Appellant.

ARLENE FEINBERG, ET AL., Plaintiffs-Respondents,

v.

COLGATE PALMOLIVE COMPANY, Defendant-Appellant,

UNION CARBIDE CORPORATION, Defendant.

7991N, 107211/08, 190078/08, 190070/11.

Decided October 2, 2012.

Appellate Division of the Supreme Court of New York, First Department.

Quinn Emanuel Urquhart & Sullivan, LLP, New York (Faith E. Gay of counsel), for appellant.

Levy, Phillips & Konigsberg, New York (James M. Kramer of counsel), for Lawrence Bernard, Marilyn Bernard, Lori Konopka-Sauer and Richard Konopka, respondents.

Seeger Weiss LLP, New York (Laurence V. Nassif of counsel), for Arlene Feinberg and Jacob Feinberg, respondents. Before: Sweeny, J.P., Catterson, Acosta, Freedman, Román, JJ.

Plaintiffs attempt to hold defendant Colgate-Palmolive liable for the alleged presence of mesothelioma-causing asbestos in the consumer cosmetic talcum powder product called "Cashmere Bouquet." The IAS court providently exercised its discretion in consolidating these actions for joint trial, as they involve common questions of law and fact (see CPLR 602[a]; Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 188 AD2d 214, 224-225 [1993], affd 82 NY2d 821 [1993]).

Defendant has not established that it will be prejudiced by consolidation of the cases. Contrary to defendant's contention, these cases do not present a novel scientific theory. Indeed, that a link has not yet been established between consumer talcum powder and mesothelioma-causing asbestos does not render plaintiffs' theory an immature tort, particularly where the link has been established in the use of industrial talc (see e.g. R.T. Vanderbilt Co., Inc. v Franklin, 290 SW3d 654 [Ky 2009]).

We reject defendant's contention that separate trials are required because a different state's law will apply to each plaintiff. Defendant has not yet asked the IAS court to undertake a choice-of-law analysis on the issue of causation; thus, it would be premature to deny the motion on this ground. In any event, even if the IAS court concludes that the laws of the different states must apply to the different plaintiffs, New York, Oregon, and Florida (the states at issue) have the same standard with regard to proving causation in asbestos-exposure cases (see e.g. Diel v Flintkote Co., 204 AD2d 53, 54 [1994]; Purcell v Asbestos Corp., Ltd., 153 Or App 415, 422-423 [1998], lv denied 329 Or 438 [1999]; Reaves v Armstrong World Indus., Inc., 569 So2d 1307, 1309 [Fla 1990], lv denied 581 So2d 166 [Fla 1991]). Moreover, defendant has not demonstrated why the purported differences in the various states' laws cannot be cured with appropriate jury instructions. Nor are separate trials required because of factual differences in plaintiffs' cases. The individual issues do not predominate over the common questions of law and fact — namely, whether asbestos was present in the consumer talcum product used by plaintiffs and whether defendant should have been aware of its presence. Under these circumstances, the IAS court rightly concluded that the facts here are on all fours with the criteria set forth in Malcolm v National Gypsum Co. (995 F2d

IN THE MATTER OF NEW YORK CITY ASBESTOS LITIG., 2012 NY Slip Op 6551 - NY: Appellate Div., 1st Dept. 2012 - Google S… 346, 350-352 [2d Cir 1993]), as there is a common disease, a common defendant and a common type of exposure by the three plaintiffs.

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST

DEPARTMENT.

Sources

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