English v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litigation, 2024)

Our plain-English summary of Matter of New York City Asbestos Litigation (New York Supreme Court, Appellate Division, May 21, 2024).

Patricia Rasso, executor of the estate of Linda English, sued several companies, including Colgate-Palmolive, over English's mesothelioma. English, a flight attendant, had used Colgate's Cashmere Bouquet talcum powder. Some of that use came during regular layovers in New York. Most of it over several decades occurred in Texas, where she lived, and she could not recall buying the product in New York. The trial court had denied Colgate's motion for summary judgment. The First Department reversed. It held that, because her exposure happened mainly outside New York, New York's connection to the case was tenuous and Texas law governed proof of specific causation. Under Texas law, a plaintiff without direct evidence may use epidemiological studies only if they show the product more than doubled the risk of injury. The plaintiff's experts said only that English's asbestos exposure contributed to her mesothelioma. They offered no data quantifying her exposure or showing the exposure level at which risk doubles. The court granted Colgate'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: May 21, 2024
• Citation: 227 A.D.3d 556
• Stage: Appeal from summary judgment
• State: New York

Outcome. The First Department reversed the trial court's denial of Colgate-Palmolive's summary judgment motion, granted the motion and dismissed the complaint against Colgate, ruling against the plaintiff executor.

What the court held. Where a foreign resident's exposure occurred mostly in another state, that state's law (here Texas) governs proof of specific causation. Under Texas law, epidemiological evidence can establish specific causation only if it shows the product more than doubled the plaintiff's risk.

Issues decided: Causation, Choice of Law, Expert Testimony.

The people and their exposure

• Linda English: mesothelioma; died

The defendants

• Colgate-Palmolive Company (for Cashmere Bouquet) (manufacturer)

Other decisions in this case

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

• Held v. Sequoia Ventures (Matter of New York City Asbestos Litigation) (June 12, 2007). The Appellate Division affirmed the ruling in favor of Sequoia Ventures (formerly Bechtel), rejecting the plaintiff executrix's claim that the engineer's insulation specifications caused her husband's mesothelioma.
• Croteau v. Treadwell Corp. (Matter of New York City Asbestos Litigation) (June 26, 2007). The Appellate Division affirmed the order granting Con Edison contractual indemnification against Treadwell for sums paid to Croteau, rejecting Treadwell's arguments.
• DiSalvo v. Neles-Jamesbury (Matter of New York City Asbestos Litigation) (December 11, 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.
• Sweberg v. Crane Co. (Matter of New York City Asbestos Litigation) (October 6, 2016). The First Department reversed the order on the Labor Law § 240(1) claim, granting the defendants' motion and dismissing the complaint on that claim. It also upheld the jury's verdict against Crane Co. on failure to warn and recklessness, but found the future pain and suffering award materially excessive to an extent the text does not state.
• Hackshaw v. Crane Co. (Matter of New York City Asbestos Litigation) (October 6, 2016). The First Department affirmed the jury verdict for plaintiff Dorcas Hackshaw (executrix of Selwyn Hackshaw) against Crane Co. on liability, but found the award for past pain and suffering excessive and reduced it to the extent indicated (the figure is not in the text).
• Krok v. The Nash Engineering Co. (Matter of New York City Asbestos Litigation) (January 26, 2017). The Appellate Division, First Department, unanimously affirmed the trial court's denial of Nash Engineering Company's motion for summary judgment, so the plaintiff estate's claim against Nash continued.
• Brown v. Consolidated Edison Co. of New York (Matter of New York City Asbestos Litigation) (March 28, 2019). The Appellate Division reversed the judgment that capped Con Ed's share at 30% and directed an amended judgment apportioning 65% of plaintiff's total recovery against Con Ed, so plaintiff won and Con Ed lost; Con Ed's cross appeal from the denial of summary judgment was dismissed.
• Macaluso v. A.O. Smith Corp. (Matter of New York City Asbestos Litigation) (June 18, 2019). The First Department affirmed the jury verdict for plaintiff on liability but ordered a new trial on damages unless plaintiff stipulated to further reduce the awards to $4 million for pain and suffering and $1 million for each child's loss of parental guidance.
• Seen v. Kaiser Gypsum Co. (Matter of New York City Asbestos Litigation) (May 21, 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.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Bostic v. Georgia-Pacific Corp. (Texas Supreme Court, 2014). The Texas Supreme Court affirmed the court of appeals' take-nothing judgment for Georgia-Pacific, holding that the plaintiffs' causation evidence was legally insufficient to support the jury verdict.
• Borg-Warner Corporation v. Flores (Texas Supreme Court, 2007). The Texas Supreme Court reversed the court of appeals' judgment, which had affirmed Arturo Flores's jury verdict, and rendered judgment for Borg-Warner because the causation evidence was legally insufficient.
• Chrabas v. Owens-Illinois (Matter of Eighth Judicial District Asbestos Litigation) (New York Supreme Court, Appellate Division, 4th Dept., 2000). The Appellate Division affirmed the Supreme Court's order denying Owens-Illinois's motion to apply Florida law to loss allocation issues and directing that New York law apply, so the plaintiffs prevailed on the choice-of-law question.

Later decisions citing this one

One later decision in our library cites this one:

• Rasso v. Avon Prods., Inc. (New York Supreme Court, 2025). The trial court denied defendant Shulton, Inc.'s motion for leave to renew its motion for summary judgment, so plaintiff Patricia Rasso, executor of Linda English's estate, kept the earlier denial of summary judgment.

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.

227 A.D.3d 556 (2024)

211 N.Y.S.3d 338

2024 NY Slip Op 02786

In the Matter of New York City Asbestos Litigation.

Patricia Rasso, as Independent Executor of the Estate of Linda English, Deceased, Respondent,

v.

Avon Products, Inc., etal., Defendants, and

Colgate-Palmolive Company (for Cashmere Bouquet), Appellant.

Index No. 190346/18. Appeal No. 2317. Case No. 2023-05032.

Decided May 21, 2024.

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

Appeal from the Supreme Court, New York County (Adam Silvera, J.), entered on or about September 13, 2023. Gordan Rees Scully Mansukhani, LLP, New York (Mohammad Haque of counsel), for appellant.

Simmons Hanly Conroy LLP, New York (James M. Kramer of counsel), for respondent.

Concur—Manzanet-Daniels, J.P., Moulton, Rosado, O'Neill Levy, JJ.

Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about September 13, 2023, which denied defendant Colgate-Palmolive Co.'s (Colgate) motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

When a foreign resident's exposure to a toxin occurs in foreign states, New York's connection to the action "is tenuous at best" (Kush v Abbott Labs., 238 AD2d 172, 172-173 [1st Dept 1997]). While decedent used defendant's talcum powder product while in New York on a number of regular layovers as a flight attendant, her use of the product over the course of decades was overwhelmingly in Texas, which was the state of her domiciliary, and she could not recall ever purchasing the product in New York (see Schultz v Boy Scouts of Am., 65 NY2d 189, 195 [1985]; compare Matter of Eighth Judicial Dist. Asbestos Litig., 273 AD2d 863, 863 [4th Dept 2000]; In re Joint E. & S. Dists. Asbestos Litig. [Coseglia], 1990 WL 3572, [*3] [ED & SD NY 1990]). Thus, Texas law concerning proof of specific causation in toxic tort cases applies (Bostic v Georgia-Pacific Corp., 439 SW3d 332, 336 [Tex 2014]; Borg-Warner Corp. v Flores, 232 SW3d 765 [Tex 2007]). Under Bostic, where a plaintiff cannot adduce direct evidence of specific causation, they may rely on scientifically reliable evidence in the form of epidemiological studies, but only where the studies showed that the product at issue more than doubled a plaintiff's risk of injury. Plaintiff failed to meet that standard, her experts opining [*557] only that decedent's exposure to asbestos contributed to the development of her mesothelioma, without any data quantifying her exposure or data showing at what level of exposure the risk of disease would double.

557

Sources

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