Olson v. Johnson & Johnson (Matter of New York City Asbestos Litig., 2022)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, July 19, 2022).

Donna Olson and her co-plaintiffs sued Johnson & Johnson and Johnson & Johnson Consumer, Inc. (J&J), claiming her mesothelioma was caused by asbestos in J&J talcum powder products she used. A New York County jury found for plaintiffs, and the trial judge ordered a new trial unless plaintiffs accepted a reduced damages award. The First Department reversed the judgment and directed judgment for J&J. It held plaintiffs failed as a matter of law to prove sufficient exposure to cause the disease. Even assuming their mineral expert's estimate of the asbestos Olson was exposed to each time she used the powder was adequately supported, their medical expert never gave a scientific expression of the minimum lifetime asbestos exposure sufficient to cause mesothelioma. His testimony that the disease could have resulted from a significant exposure above normal background levels was not enough. The court rejected the argument that J&J had not preserved the issue. It dismissed the appeal from the damages order as subsumed in the judgment appeal and did not reach J&J's other arguments.

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: July 19, 2022
• Citation: 207 A.D.3d 415
• Stage: Appeal from judgment after trial
• State: New York

Outcome. 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.

What the court held. A plaintiff in a toxic tort case must present expert testimony giving a scientific expression of the level of exposure sufficient to cause the disease; testimony that exposure was a significant amount above normal background levels is insufficient.

Issues decided: Causation, Expert Testimony.

The people and their exposure

• Donna A. Olson: mesothelioma

The defendants

• Johnson & Johnson (manufacturer)
• Johnson & Johnson Consumer, Inc. (manufacturer)

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.
• 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.
• 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:

• Nemeth v. Brenntag N. Am. (New York Court of Appeals, 2022). The Court of Appeals reversed the Appellate Division and dismissed the complaint against Whittaker, Clark & Daniels, Inc., holding that the plaintiff's causation proof was legally insufficient, so the defendant won and the plaintiff lost the jury verdict.
• 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.
• Mtr OF Nyc Asbestos Litig. (New York Supreme Court, Appellate Division, 1st Dept., 2017). The Appellate Division affirmed the judgment for Ford Motor Company, upholding the trial court's order setting aside the jury's verdict for plaintiff Mary Juni, and dismissed the appeal from the order as subsumed in the appeal from the judgment.

Later decisions citing this one

3 later decisions in our library cite this one:

• Seen v. Kaiser Gypsum Co. (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2024). The First Department modified the judgment against Kaiser Gypsum, ordering a new trial on pain and suffering damages unless plaintiff stipulated to reduce the $15 million award to $10 million, remanded to recalculate the judgment for settlement offsets, and otherwise affirmed the verdict for plaintiff.
• Tippin v. 3M Co., Alcat (New York Supreme Court, Appellate Division, 1st Dept., 2024). The Appellate Division reversed the trial court's denial of summary judgment and granted Johnson & Johnson, Johnson & Johnson Consumer, Inc., and LTL Management LLC's motion, dismissing plaintiff Tippin's complaint against them.
• Seen v. Kaiser Gypsum Co., Inc. (New York Supreme Court, 2023). The trial court denied Kaiser Gypsum's motion for judgment notwithstanding the verdict, a new trial, or a reduced award, leaving the plaintiff's $15,000,000 verdict in place.

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.

207 A.D.3d 415 (2022)

171 N.Y.S.3d 503

2022 NY Slip Op 04611

In the Matter of New York City Asbestos Litigation.

Donna A. Olson et al., Respondents,

v.

Brenntag North America, Inc., etal., Defendants, and

Johnson & Johnson et al., Appellants.

Index No. 190328/17. Appeal No. 14875-14875A. Case No. 2020-04856. 2020-04860.

Decided July 19, 2022.

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

Judgment, Supreme Court, New York County (Gerald Lebovits, J.), entered November 30, 2020, in plaintiffs' favor against defendants Johnson & Johnson and Johnson & Johnson Consumer, Inc. (together, J&J), unanimously reversed, on the law, without costs, and J&J's motion pursuant to CPLR 4404(a) to set aside the verdict and to enter judgment in its favor or to direct a new trial is granted to the extent of setting aside the verdict and directing entry of judgment in J&J's favor. Appeal from order, same court and Justice, entered on or about November 11, 2020, which, upon J&J's motion pursuant to CPLR 4404(a), vacated the jury's damages award and ordered a new trial unless plaintiffs stipulated to a reduced damages award, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. The Clerk is directed to enter judgment accordingly.

Orrick, Herrington & Sutcliffe LLP, New York (E. Joshua Rosenkranz of counsel), for appellants.

Levy Konigsberg LLP, New York (Jerome H. Block of counsel), for respondents.

Concur—Kapnick, J.P., Friedman, González, Rodriguez, Pitt, JJ.

[*417] Judgment, Supreme Court, New York County (Gerald Lebovits, J.), entered November 30, 2020, in plaintiffs' favor against defendants Johnson & Johnson and Johnson & Johnson Consumer, Inc. (together, J&J), unanimously reversed, on the law, without costs, and J&J's motion pursuant to CPLR 4404(a) to set aside the verdict and to enter judgment in its favor or to direct a new trial is granted to the extent of setting aside the verdict and directing entry of judgment in J&J's favor. Appeal from order, same court and Justice, entered on or about November 11, 2020, which, upon J&J's motion pursuant to CPLR 4404(a), vacated the jury's damages award and ordered a new trial unless plaintiffs stipulated to a reduced damages award, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. The Clerk is directed to enter judgment accordingly.

[*416] At trial, plaintiffs failed, as a matter of law, to carry their burden "to establish sufficient exposure to a substance to cause the claimed adverse health effect" (Nemeth v Brenntag N. Am., 38 NY3d 336, 343 [2022] [internal quotation marks omitted]; see also Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006] [proof of causation in a toxic tort case must establish "a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)"]; Dyer v Amchem Prods. Inc., 207 AD3d 408 [1st Dept 2022] [decided herewith]). To make such a showing, a plaintiff must present expert testimony providing a "scientific expression of the level of exposure to toxins in defendant's products that was sufficient to have caused the disease" (Matter of New York City Asbestos Litig., 148 AD3d 233, 235 [1st Dept 2017] [internal quotation marks and citation omitted], affd 32 NY3d 1116 [2018]). Even if it is assumed that plaintiffs presented sufficient evidence to support their mineral expert's estimate of the amount of asbestos to which plaintiff Donna Olson was exposed each time she used J&J's talcum powder products, plaintiffs' medical expert never set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to cause mesothelioma, the disease in question (see Nemeth, 38 NY3d at 343 ["we have repeatedly rejected as insufficient to prove causation expert testimony that exposure to a toxin is `excessive' or `far more' than others, and such testimony that merely links a toxin to a disease or `work(s) backwards from reported symptoms to divine an otherwise unknown concentration' of a toxin to prove causation"]). Thus, the medical expert's

testimony that mesothelioma could have resulted from "a significant exposure above normal background levels" was insufficient.

Contrary to plaintiffs' argument that J&J failed to preserve the issue of the sufficiency of the evidence of causation, J&J at most withdrew its objection to the admissibility of the medical expert's testimony, without conceding that the testimony would be legally sufficient to establish causation, a point that J&J continued to vigorously contest.

In view of the foregoing, we need not address the remaining issues raised by J&J on its appeal.

Sources

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