Matter of New York City Asbestos Litig. (2019)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, June 20, 2019).

Claudine DiScala sued as representative of a woman who died of mesothelioma, naming Whittaker Clark & Daniels, Inc. and other defendants. The claim against Whittaker Clark & Daniels was that the woman used its talcum product and that asbestos in it caused her disease. A jury returned a verdict for the plaintiff, and the trial court denied the company's motion for judgment notwithstanding the verdict. The First Department reversed. It noted that a plaintiff does not have to quantify exposure with exact mathematical precision. Even so, the court found that the plaintiff's evidence did not show a level of exposure high enough to cause the disease. The plaintiff's causation expert had only said that the woman's exposure to unspecified "detectable" or "significant" levels of asbestos in the talc caused her mesothelioma. The court vacated the judgment, granted the company's motion, and dismissed the complaint against it.

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: June 20, 2019
• Citation: 2019 NY Slip Op 5005
• Stage: Appeal from post-trial motions
• State: New York

Outcome. 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.

What the court held. A plaintiff need not quantify exposure with exact mathematical precision, but must present evidence of an exposure level sufficient to cause the disease; an expert's opinion that unspecified "detectable" or "significant" levels caused mesothelioma is not enough.

Issues decided: Causation, Expert Testimony, Trial Procedure and Discovery.

The people and their exposure

• Claudine DiScala's decedent (unnamed): mesothelioma; died

The defendants

• Whittaker Clark & Daniels, Inc. (supplier)
• Charles B. Chrystal Company, Inc.

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. (October 2, 2012). 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.
• 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.
• 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:

• Juni v. Ford Motor Co. (Matter of New York City Asbestos Litigation) (New York Court of Appeals, 2018). The Court of Appeals affirmed the Appellate Division's order, leaving in place the setting aside of the jury verdict against Ford Motor Company, so plaintiff Mary Juni lost and Ford won judgment as a matter of law.

Later decisions citing this one

One later decision in our library cites this one:

• Moldow v. AI Friedman, LP (New York Supreme Court, 2019). The court denied Colgate-Palmolive Company's motion for summary judgment dismissing plaintiff Chris Moldow's complaint, the cross-claims and the punitive damages claim, finding issues of fact for 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.

2019 NY Slip Op 05005

IN RE NEW YORK CITY ASBESTOS LITIGATION.

CLAUDINE DiSCALA, ETC., Plaintiff-Respondent,

v.

CHARLES B. CHRYSTAL COMPANY, INC., ET AL., Defendants,

WHITTAKER CLARK & DANIELS, INC., Defendant-Appellant.

9676, 40000/88, 190413/13.

Decided June 20, 2019.

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

Judgment, Supreme Court, New York County (Martin Shulman, J.), entered August 29, 2017, upon a jury verdict in plaintiff's favor, and bringing up for review an order, same court and Justice, entered June 19, 2017, which denied defendant Whittaker Clark & Daniels, Inc.'s motion for judgment notwithstanding the verdict, unanimously reversed, on the law, without costs, the judgment vacated, the motion granted, and the complaint dismissed as against said defendant. The Clerk is directed to enter judgment accordingly.

Pillsbury Winthrop Shaw Pittman LLP, New York (David G. Keyko of counsel), for appellant.

Levy Konigsberg, LLP, New York (Renner K. Walker of counsel), for respondent.

Before: Friedman, J.P., Richter, Kahn, Singh, JJ.

Plaintiff failed to adduce evidence that the decedent was exposed to sufficient levels of asbestos in defendant's talc to cause mesothelioma. Plaintiff's causation expert merely opined that the decedent's exposure to unspecified "detectable" or "significant" levels of asbestos in the talcum product she used caused her mesothelioma. Plaintiff was not required to quantify the decedent's exposure level with exact mathematical precision (see Matter of New York City Asbestos Litig., 148 AD3d 233, 235-238 [1st Dept 2017], affd 32 NY3d 1116 [2018]; Parker v Mobil Oil Corp., 7 NY3d 434, 449 [2006]). However, in this case the evidence failed to establish a level of exposure sufficient to cause the illness.

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