Matter of New York City Asbestos Litig. (2012)

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

Three groups of plaintiffs sued Colgate-Palmolive, claiming that Cashmere Bouquet, a consumer cosmetic talcum powder, contained asbestos that caused mesothelioma. The opinion does not name the individual injured people or describe their jobs or exposure beyond their use of the product. The trial court consolidated the three actions for a joint trial, and Colgate-Palmolive appealed. It argued that the cases presented a novel scientific theory, that each plaintiff's claim would be governed by a different state's law, and that factual differences required separate trials. The First Department affirmed the consolidation. It found no shown prejudice to the company. It said the lack of an established link between consumer talc and mesothelioma-causing asbestos did not make the theory novel, since such a link had been established for industrial talc. The court called the choice-of-law argument premature, and noted that New York, Oregon and Florida use the same causation standard. It held that any differences could be handled with jury instructions. The three cases shared a common disease, defendant and 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: 99 A.D.3d 410
• 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 appeal.

What the court held. Asbestos actions may be consolidated for joint trial under CPLR 602(a) where they share a common disease, defendant and type of exposure, and the defendant shows no prejudice. Possible differences among states' laws do not require separate trials where the causation standards are the same and jury instructions can address any differences.

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

The defendants

• Colgate-Palmolive Company (manufacturer)
• Brookfield Properties Corp. (premises owner)

Other decisions in this case

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

• Matter of New York City Asbestos Litig. (March 23, 1993). The Appellate Division affirmed the trial court's rulings: it upheld the preclusion of the defendant's relitigation of a point decided in prior litigation, the five additurs, and the exclusion of evidence about the cause of Sutton's death, so the defendant lost.
• Matter of New York City Asbestos Litig. (May 28, 2013). The First Department reversed the judgment awarding plaintiffs damages against the Port Authority, vacated it, denied plaintiffs' default judgment motion, and granted the Port Authority's motion to dismiss for lack of subject matter jurisdiction.
• Fersch v. Volkswagen Group of America (Matter of New York City Asbestos Litig.) (November 26, 2013). The First Department affirmed the trial court's order consolidating the Juni, Fersch and Middleton cases for trial, ruling against Volkswagen Group of America, Inc., which had appealed.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (July 3, 2014). The Appellate Division affirmed both jury-verdict judgments for the plaintiffs (Konstantin against Tishman Liquidating Corporation, Dummitt against Crane Co.) and dismissed the appeal from the order denying Crane's post-trial motion as subsumed in the judgment appeal; one justice, joined by another, dissented in part as to Dummitt.
• Berensmann v. Georgia-Pacific (Matter of New York City Asbestos Litig.) (November 20, 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.
• Andrucki v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (January 15, 2015). On remittitur from the Court of Appeals, the First Department affirmed the $2,500,000 judgment for plaintiffs against the Port Authority, which had defaulted by not appearing at trial, without an inquest on damages.
• South v. Chevron Corp. (Matter of New York City Asbestos Litig.) (August 29, 2017). The Appellate Division affirmed the denial of Texaco's summary judgment motion, so the widow's Jones Act mesothelioma claims against Texaco (sued as Chevron's alleged predecessor) continued; Texaco lost, with one justice dissenting.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (October 5, 2017). The First Department affirmed the judgment entered after a jury trial awarding plaintiff Walter Miller $5 million for past and $4 million for future pain and suffering against Hennessy Industries, which lost its appeal.
• Matter of New York City Asbestos Litig. (June 20, 2019). The Appellate Division reversed the judgment entered on a jury verdict for plaintiff, granted Whittaker Clark & Daniels' motion for judgment notwithstanding the verdict, and dismissed the complaint against it.
• Hildebrand v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (January 21, 2021). The First Department affirmed the denial of the Port Authority's summary judgment motion on the Labor Law § 200 and common-law negligence claims, so plaintiff Seval Morgan's claims against the Port Authority continued.
• Olson v. Johnson & Johnson (Matter of New York City Asbestos Litig.) (July 19, 2022). The First Department reversed the judgment for plaintiffs against Johnson & Johnson and directed entry of judgment for J&J, because plaintiffs' expert proof of causation was legally insufficient; the appeal from the damages-reduction order was dismissed as subsumed.
• McWilliams v. Jenkins Bros. (Matter of New York City Asbestos Litig.) (February 27, 2024). The First Department affirmed the denial of Jenkins Bros.' motion for JNOV, a new trial, or remittitur, leaving plaintiff McWilliams' $13,000,000 past and $10,000,000 future pain and suffering verdict intact.
• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (March 13, 2025). The First Department affirmed the jury-verdict judgment for plaintiffs Romeo and Rosa Maffei against Burnham LLC, including compensatory, consortium and punitive awards, and dismissed the appeal from the post-trial order as subsumed in the judgment.

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.

Later decisions citing this one

17 later decisions in our library cite this one:

• Lanza v. Kaiser Gypsum Co. (Matter of Nyc Asbestos Litig) (New York Supreme Court, 2020). The court granted the plaintiffs' motion for a joint trial of the Lanza and Kranichfeld actions against Kaiser Gypsum Company, Inc., over the defendant's objection.
• Bucci v. Air & Liquid Sys. Corp. (New York Supreme Court, 2018). The trial court denied the plaintiffs' motion to consolidate the Bucci, Johnsen and Palmeri asbestos cases for a joint trial, ruling for the defendants who opposed it.
• Matter of Adesso v. AO Smith Water Prods. Co. (New York Supreme Court, 2018). The court granted plaintiffs' motion in part, ordering joint trials for Cerato/Lynch, McCormick/Munnelly, Kalachman/Rothman, Hickey/Litz, George/Toy, Hutnick/Soto and Hill/Lipari, and denied joinder for Swanson/Whitaker, Hiddie/Rose, Costa/Endelmann, Lehanka/Snider, Bascomb/Gallagher and for adding Scott to Hill and Lipari, over the defendants' opposition.
• Montebianco v. AO Smith Corp. (New York Supreme Court, 2018). The court denied the plaintiffs' motion to consolidate the Montebianco and Reilly asbestos cases for a joint trial, so the defendants prevailed on the motion.
• Cunningham v. Aerco Intl. (New York Supreme Court, 2017). The court granted in part the plaintiffs' motion to consolidate eleven asbestos cases, ordering four joint-trial groups of two or three cases each and separate trials for the Keith and Reno cases over the defendants' objections.
• Altman v. Ford Motor Co. (In re New York City Asbetos Litigation) (New York Supreme Court, 2017). The court granted plaintiffs' motion to consolidate in part: Altman and Hofstetter were to be tried together, Barber, Egri and Moynihan were to be tried together, and DeStefano, Fox, Baginski and Evans were to be tried separately.
• Cicio v. American Biltrite (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2016). The court denied the plaintiffs' motion to consolidate the Cicio, Keeny and Matuk mesothelioma cases for a joint trial, so American Biltrite and Kaiser Gypsum prevailed and the cases will be tried individually.
• Feinberg v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2016). The trial court denied Colgate-Palmolive's motion for summary judgment in its entirety, so the Feinbergs' claims over Arlene Feinberg's mesothelioma go forward.
• Assenzio v. Burnham (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court denied Burnham's and Cleaver-Brooks' motions to set aside the five mesothelioma verdicts for the plaintiffs, but found every damages award excessive and ordered new damages trials unless each plaintiff accepts a reduced award.
• Flahive v. 3M Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court granted plaintiffs' motion to consolidate in part, joining the Flahive and Germain actions for one trial and the Izbicki and Jalowski actions for another over defendants' opposition, but ordered the Valensi action tried separately.
• Brady v. Crane Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court granted plaintiffs' motion to consolidate 13 asbestos cases for joint trial only in part: it ordered joint trials for Miceli and Ward, for Carey, Falkenmeyer and Frick, and for Nash and Pettinelli, and ordered Miller, Brady, McCormick, Morgan, Castorina and Padula tried separately, over defendants' objections.
• Ricci v. Cleaver-Brooks (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court denied Cleaver-Brooks' motion for summary judgment dismissing plaintiff Mark Ricci's complaint and all claims and cross-claims against it, so the plaintiff won and the case goes to trial.
• Best v. The William Powell Co. (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2015). The court denied the plaintiffs' motion to consolidate the Best/Nefsey and Rocovich/Weil asbestos cases for joint trial, so the opposing defendants prevailed.
• Abrams v. Foster Wheeler (In re New York City Asbestos Litigation) (New York Supreme Court, 2014). The court granted the plaintiffs' motion in part, consolidating the Bova, Futia, Gay and McGinnity actions for a joint trial and ordering the Obremski and Abrams actions tried separately.
• Baiocco v. AC & S., Inc. (New York Supreme Court, 2013). The court granted the plaintiffs' motion to consolidate in part, ordering three joint trials (Byrnes, Cayen and Latzer; Dell'Arciprete and Kornacki; Baiocco and Blank) and ordering the Balducci case tried separately.
• Bernard v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2013). After a Frye hearing, the court granted Colgate-Palmolive's motion to preclude plaintiffs' testing expert, Dr. Millette, from opining that any talc powder sample he tested contained asbestiform contaminants.
• Ambruso v. Goulds Pumps (Matter of New York City Asbestos Litigation) (New York Supreme Court, 2013). The court granted plaintiffs' motion to consolidate 15 asbestos cases into four joint-trial groups (Navy, Construction, Automotive, Building Maintenance) over the defendants' opposition.

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.

99 A.D.3d 410 (2012)

951 N.Y.S.2d 154

In the Matter of NEW YORK CITY ASBESTOS LITIGATION.

LAWRENCE BERNARD et al., Respondents,

v.

BROOKFIELD PROPERTIES CORP. etal., Defendants, and

COLGATE-PALMOLIVE COMPANY, Appellant.

LORI KONOPKA-SAUER et al., Respondents,

v.

COLGATE-PALMOLIVE COMPANY, Appellant.

ARLENE FEINBERG et al., Respondents,

v.

COLGATE PALMOLIVE COMPANY, Appellant, etal., Defendant.

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

Decided October 2, 2012.

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

Concur — Sweeny, J.P., Catterson, Acosta, Freedman and 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 Ct App 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. [*411] 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, 959 P2d 89, 94 [1998], lv denied 329 Or 438, 994 P2d 126 [1999]; Reaves v Armstrong World Indus., Inc., 569 So 2d 1307, 1309 [Fla Dist Ct App 1990], lv denied 581 So 2d 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 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.

Sources

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