Rasso v. Avon Prods., Inc. (2025)

Our plain-English summary of Rasso v. Avon Prods., Inc. (New York Supreme Court, March 6, 2025).

Patricia Rasso sued as independent executor of the estate of Linda English, who had died, in an asbestos personal injury case against many defendants. This opinion does not name the disease or describe the exposure. Defendant Shulton, Inc. had lost an earlier motion for summary judgment. It asked to renew that motion, relying on a First Department decision in a parallel case against Colgate-Palmolive, which held that Texas law governs proof of specific causation. The trial court assumed that decision could support renewal but found it would not change the earlier result. Texas substantive law and New York procedure both apply. Under New York procedure, a defendant seeking summary judgment must first affirmatively show that its product could not have caused the injury, and it cannot do so merely by pointing to gaps in the plaintiff's proof. Shulton had submitted no evidence, expert or otherwise, disproving causation under either state's law. The court therefore denied the motion to renew in its entirety.

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
• Decided: March 6, 2025
• Citation: 2025 NY Slip Op 30761(U)
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. 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.

What the court held. Even if an appellate ruling applying Texas causation law were a change in the law, a defendant moving for summary judgment must meet its prima facie burden under New York procedure by affirmatively disproving causation. Pointing to gaps in the plaintiff's proof under the governing substantive law is not enough.

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

The people and their exposure

• Linda English; died

The defendants

• Shulton, Inc.
• Colgate-Palmolive Company (manufacturer)

Other decisions in this case

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

• Rasso v. Avon Prods., Inc. (September 11, 2023). The court denied defendant Colgate-Palmolive's motion for summary judgment in its entirety, so the plaintiff's claim against Colgate continues.

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.
• 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.
• Gaulding v. Celotex Corp. (Texas Supreme Court, 1989). The Texas Supreme Court affirmed the court of appeals' judgment upholding summary judgment for Celotex, National Gypsum, U.S. Gypsum, Keene and GAF against the survivors of Ethel Gaulding.
• English v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2024). 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.
• Reid v. Georgia-Pac. Corp. (New York Supreme Court, Appellate Division, 1st Dept., 1995). The Appellate Division affirmed the denial of Rapid-American Corporation's motion for summary judgment, so plaintiff Kenneth Reid's claim against it continues.

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.

2025 NY Slip Op 30761(U)

PATRICIA RASSO, Plaintiff,

v.

AVON PRODUCTS, INC., BRENNTAG NORTH AMERICA, BRENNTAG SPECIALTIES, INC., AS

SUCCESSOR-IN-INTEREST TO MINERAL PIGMENT SOLUTIONS, INC., AS SUCCESSOR-IN-

INTEREST TO WHITAKER CLARK & DANIELS, INC., CHARLES B. CHRYSTAL COMPANY, INC.,

CONOPCO, INC., COTY, INC., COTY US, LLC, ELI LILLY AND COMPANY, ELIZABETH ARDEN, INC.,

IMERYS TALC AMERICA INC. F/K/A LUZENAC AMERICA, INC., INDIVIDUALLY AND AS

SUCCESSOR-IN-INTEREST TO WINDSOR MINERALS, INC., PFIZER, INC., REVLON INC., AS

SUCCESSOR-IN-INTEREST TO ELIZABETH ARDEN, INC., UNILEVER UNITED STATES, INC.,

WHITTAKER CLARK & DANIELS, INC., WHITTAKER CLARK & DANIELS, INC. INDIVIDUALLY AND

AS SUCCESSOR TO CHARLES MATHIEU, INC. AND METROPOLITAN TALC CO., JOHN DOE 1

THROUGH JOHN DOE 75 (FICTITIOUS), COLGATE — PALMOLIVE COMPANY (FOR CASHMERE

BOUQUET), IMERYS TALC AMERICA, INC., JOHNSON & JOHNSON, JOHNSON & JOHNSON

CONSUMER COMPANIES, INC., LUZENAC AMERICA INC., PROCTER & GAMBLE

MANUFACTURING COMPANY AS SUCESSOR-IN-INTEREST TO SHULTON, INC., KOLMAR

LABORATORIES, INC., Defendant.

Index No. 190346/2018, Motion Seq. No. 021.

Motion October 8, 2024.

March 6, 2025.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

Upon the foregoing documents and for the reasons set forth below, this Court denies the instant motion by defendant Shulton, Inc. ("Defendant") for leave to renew its prior motion for summary judgment against the plaintiff, Ms. Patricia Rasso ("Plaintiff"), as independent executor of the estate of the decedent, Linda English.

A party may move for leave to renew a prior motion on the ground that "there has been a change in the law that would change the [court's] prior determination." CPLR § 2221(e)(2). "`A clarification of the decisional law is a sufficient change in the law to support renewal.'" McLaughlin v. Snowlift, Inc., 214 AD3d 720, 721 (2d Dep't 2023), quoting Dinallo v. DAL Elec., 60 AD3d 620, 621 (2d Dep't 2009); see also Roundabout Theatre Co. v. Tishman Realty & Constr. Co., 302 AD2d 272, 272 (1st Dep't 2003) (noting that "defendants' motion to renew was properly based on an intervening clarification of the law"). Here, Defendant moves for leave to renew its motion for summary judgment on the ground that the decision by the

Appellate Division, First Department, in Matter of New York City Asbestos Litigation (Colgate), 227 AD3d 556 (1st Dep't 2024), clarifies that Texas law applies in this case and that such clarification must change this Court's prior Decision/Order, which denied Defendant's motion for summary judgment. See Mot. Seq. No. 016, Decision + Order on Motion, dated Sept. 11, 2023 (the "Prior Determination"), at 2; Memorandum of Law in Support of Shulton's Motion to Renew This Court's Decision to Deny Shulton's Motion for Summary Judgment ("Support of Motion to Renew") at 5; Mot. Seq. No. 016,

Memorandum of Law in Support of Motion for Summary Judgment Dismissing Plaintiffs' Claims Against Shulton, Inc., dated Nov. 16, 2020 ("Support of Motion for Summary Judgment"), at 14. Assuming without deciding that such a "`clarification ... is a sufficient change in the law to support renewal'" in this case,[1] McLaughlin, 214 AD3d at 721, quoting Dinallo, 60 AD3d at 621, such clarification nonetheless would not change this Court's Prior Determination.

In the Prior Determination, this Court denied Defendant's motion for summary judgment after concluding that New York, not Texas, causation law applied and that Defendant did not satisfy its prima facie summary judgment burden.[2] See Prior Determination at 2 (noting that Defendant "ma[de] no attempt to prove summary judgment under the New York causation standard"). On the same day that the Court issued its Prior Determination, it denied a "parallel motion," see id. at 1, for summary judgment by Colgate-Palmolive Company ("Colgate") after also concluding that New York, not Texas, causation law applied. See Mot. Seq. No. 014, Decision + Order on Motion, dated Sept. 11, 2023, at 4-5. Unlike in the Prior

Determination, however, the Court concluded that Colgate satisfied its prima facie burden but that Plaintiff nonetheless established that "sufficient issues of fact exist[ed] to preclude summary judgment." See id. at 5. Colgate appealed to the First Department, which led to the decision that Defendant relies on herein.

Defendant's reliance on Colgate is misplaced. In Colgate, the First Department concluded that, as a choice-of-law matter, "Texas [, not New York,] law concerning proof of specific causation in toxic tort cases applie[d]"[3] and that, applying such law, Colgate was entitled to summary judgment because Plaintiff had not satisfied her shifted burden to establish that an issue of fact remained as to causation under Texas substantive law. See Colgate, 227 AD3d at 556-557.

Defendant reads Colgate differently, seemingly suggesting that the First Department concluded that Colgate satisfied its prima facie summary judgment burden by allegedly showing that Plaintiff could not establish causation under Texas law. See Reply Affirmation to Plaintiff's Opposition to Shulton's Motion to Renew Its Motion for Summary Judgment Pursuant to CPLR 2221(e) ("Reply") ¶ 10 (arguing that "[t]he First Department granted Colgate's appeal and reversed the prior summary judgement determination solely on the Texas law issue" and that "[t]he First Department never reached or addressed Colgate's argument on causation (or related expert evidence) under New York law").[4] As such, Defendant seemingly suggests that the fact that Defendant "ma[de] no attempt to prove [its entitlement to] summary judgment,"[5] Prior Determination at 2, in its original motion for summary judgment is inconsequential, as Plaintiff cannot satisfy her substantive burden under Texas law. See Reply ¶¶ 10, 16.

But such a reading flies in the face of well-established New York procedure that a defendant moving for summary judgment does "not meet its prima facie burden by merely pointing to gaps or deficits in [the] plaintiff's case." Dyer, 207 AD3d at 409; see also Koulermos, 137 AD3d at 576; Castillo-Sayre v. Citarella Operating LLC, 195 AD3d 513, 513 (1st Dep't 2021); Matter of New York City Asbestos Litig, 174 AD3d 461, 461 (1st Dep't 2019); Coastal Sheet Metal Corp. v. Martin Assoc., Inc., 63 AD3d 617, 618 (1st Dep't 2009); Cooper v. First In Queens, Inc., 229 AD3d 761, 763 (2d Dep't 2024); Peskin v. New York City Tr. Auth., 304 AD2d 634, 634 (2d Dep't 2003); Umoh v. Doolity-Mills, 214 AD3d 1226, 1227-1228 (3d Dep't 2023); Antonucci v. Emeco Indus., 223 AD2d 913, 914 (3d Dep't 1996); Clyde v. Franciscan Sisters of Allegany, N. Y., Inc., 217 AD3d 1353, 1357 (4th Dep't 2023); George Larkin Trucking Co. v. Lisbon Tire Mart, 185 AD2d 614, 615 (4th Dep't 1992). And Defendant's counter that it is not "merely point[ing] to gaps in Plaintiff['s] proofs" because it allegedly has shown that Plaintiff's claim is "deficient as a matter of [Texas] law" is unavailing. See Support of Motion for Summary Judgment at 14. Such a counter is a distinction without a difference and the veritable epitome of the prima facie finger-pointing barred under New York procedure.

To accept Defendant's reading would, in practice, graft Texas's dramatically different summary judgment framework[6] onto this New York case, upending decades-old precedent that "matters of substantive law fall within the course charted by [the choice-of-law] analysis," Tanges v. Heidelberg N. Am., 93 NY2d 48, 53 (1999), and that "matters of procedure are governed by the law of the forum." Martin v. Julius Dierck Equip. Co., 43 NY2d 583, 588 (1978); see also Davis v. Scottish Re Group Ltd., 30 NY3d 247, 252 (2017); Kilberg v. Northeast Airlines, 9 NY2d 34, 41 (1961); Lerner, 119 AD3d 122, 127 (1st Dep't 2014). This Court rejects such a reading. Rather, in accordance with the Court of Appeals and Appellate Division decisions, this Court applies Texas substantive law and New York procedural law herein.

Read in context, what Colgate may be said to clarify in this case is that Defendant has the prima facie burden, under New York procedure, to "unequivocally establish that its product could not have ... caus[ed]," in the Texas substantive causation sense, "[P]laintiff's injury." Reid, 212 AD2d at 463. If Defendant had satisfied its prima facie burden, then the burden would have shifted to Plaintiff to show that a "material issue[] of fact," under Texas substantive causation law, remained. See Alvarez, 68 NY2d at 324.

In this case, Defendant failed to satisfy its prima facie burden. Indeed, this Court previously concluded that Defendant had not even attempted to prove its entitlement to summary judgment. See Prior Determination at 2. And, as explained above, although this Court previously applied New York's substantive causation standard, application of Texas's substantive

causation standard compels the same conclusion: Defendant has not satisfied its prima facie burden because Defendant submitted no expert evidence tending to disprove causation—whether under New York or Texas law[7]—as it had to in order to satisfy its prima facie burden under New York procedure. See n 5, supra; Reply ¶¶ 10-11, 15. Rather, Defendant's sole argument for having satisfied its prima facie burden is that Plaintiff cannot establish causation under Texas substantive law. See Reply ¶¶ 4, 18. For the reasons already stated, that argument is unavailing.

Thus, because Defendant has failed to show that Colgate effectuated a "change in the law that would change the [P]rior [D]etermination," CPLR § 2221(e)(2), Defendant's motion for leave to renew must be denied.

Accordingly, it is

ORDERED that Defendant's motion for leave to renew its motion for summary judgment is denied in its entirety; and it is further

ORDERED that within 30 days of entry Plaintiff shall serve all parties with a copy of this Decision/Order with notice of entry. This constitutes the Decision/Order of the Court.

[1] Plaintiff argues that the First Department's clarification "was not a `change in the law'" but rather an "application of preexisting choice-of-law standards." Plaintiffs' Memorandum of Law in Opposition to Defendant Shulton, Inc.'s Motion for Leave to Renew ("Opposition to Motion to Renew") at 4 n 1. This Court need not, and does not, decide whether Plaintiff is correct, given that, as discussed infra, any purported change in the law would not change this Court's Prior Determination.

[2] As a matter of New York procedure, a court must grant summary judgment if the movant establishes its claim "as a matter of law" and no "issue of fact" warranting trial remains. CPLR § 3212(b). The movant has the initial burden to show "entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The movant's failure to meet its prima facie burden requires denial of the motion without probing the sufficiency of the opponent's papers. See id. Furthermore, even if the movant makes a prima facie showing of entitlement to judgment as a matter of law, the court must deny a summary judgment motion if the opponent's papers present admissible evidence establishing that a "material issue[] of fact" remains. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986).

"`In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility.'" Garcia v. J.C. Duggan, Inc., 180 AD2d 579, 580 (1st Dep't 1992), quoting Dauman Displays v. Masturzo, 168 AD2d 204, 205 (1st Dep't 1990). The court's role centers on "`issue-finding, [not] issue-determination.'" Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957), quoting Esteve v. Abad, 271 AD 725, 727 (1st Dep't 1947). As a result, and because it is a "drastic remedy," Vega v. Restani Constr. Corp., 18 NY3d 499, 503 (2012), summary judgment is rarely granted in negligence actions unless no conflict exists in the evidence. See Ugarriza v. Schmieder, 46 NY2d 471, 475-476 (1979). When a defendant moves for summary judgment in asbestos personal injury cases, "the burdens of proof are virtually reversed." Lopez v. Gem Gravure Co., Inc., 50 AD3d 1102, 1108 (2d Dep't 2008, Lifson, J.P., dissenting). Thus, for the moving defendant to meet its prima facie burden on summary judgment, it must do more than "point[] to gaps in [the] opponent's evidence"; it must "`affirmatively demonstrate the merit of" its position. Koulermos v. A.O. Smith Water Prods., 137 AD3d 575, 576 (1st Dep't 2016), quoting Dalton v. Educational Testing Serv., 294 AD2d 462, 463 (2d Dep't 2002); see also Dyer v. Amchem Prods. Inc., 207 AD3d 408, 409 (1st Dep't 2022) (noting that a defendant moving for summary judgment does "not meet its prima facie burden by merely pointing to gaps or deficits in [the] plaintiff's case"); Reid v. Georgia-Pacific Corp., 212 AD2d 462, 463 (1st Dep't 1995) (noting that a defendant moving for summary judgment must "unequivocally establish that its product could not have contributed to the causation of [the] plaintiff's injury"). [3] Neither party disputes that Colgate's choice-of-law finding controls here. See generally Support of Motion to Renew; Opposition to Motion to Renew.

[4] That the First Department did not precisely trace the contours of New York's burden-shifting summary judgment framework or address Colgate's causation argument is unsurprising, as the parties agreed in the appellate briefing that whether Colgate satisfied its prima facie summary judgment burden was not before the court. See Brief for Plaintiff-Respondent in Colgate, 227 AD3d 556, available at 2024 WL 3090193, [*4]-5 ("[W]hether or not Colgate met its prima facie burden ... is neither dispositive of summary judgment nor even seriously contested here. The determinative issue is whether Plaintiff ... met her burden by presenting sufficient ... evidence in opposition to summary judgment that raises a dispute for the jury to decide...."); Reply Brief for Defendant-Appellant in Colgate, 227 AD3d 556, available at 2024 WL 3090195, [*15], quoting Zuckerman v. City of New York, 49 NY2d 557, 562 (1980) ("There is no dispute on this record, and plaintiff seemingly admits, that Colgate met its prima facie burden. The onus is now on Plaintiff, and she `must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which [s]he rests [her] claim....'") (alterations in original) (citation omitted). Consistent with the parties' wishes and not wanting to "inappropriate[ly] and unnecessar[ily]" "reach beyond the arguments squarely before" it, see Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 NY3d 64, 82 (2018) (Rivera, J., concurring), citing

Greenlaw v. United States, 554 US 237, 243 (2008), and People v. Hawkins, 11 NY3d 484, 493 (2008), the First Department assumed that Colgate satisfied its prima facie burden and thus refrained from speaking on the issue.

[5] The Court recognizes that it previously found that Defendant "ma[de] no attempt to prove [its entitlement to] summary judgment under the New York causation standard." Prior Determination at 2 (emphasis added). That was only because the Court concluded then that New York, not Texas, causation law applied. See id. But applying Texas causation law does not change the outcome, as Defendant has failed to satisfy its prima facie burden to show entitlement to judgment as a matter of Texas causation law. After all, Defendant does not dispute that it has not submitted expert evidence—or any evidence—disproving causation under Texas law, as it must to satisfy its prima facie summary judgment burden under New York procedure. See Reply ¶¶ 10-11, 15. Rather, Defendant's sole argument for having satisfied its prima facie burden is that Plaintiff cannot establish causation under Texas substantive law. See id. ¶¶ 4, 18. As explained below, that is insufficient under New York procedure.

[6] Unlike New York, Texas places the initial burden on the plaintiff at summary judgment. Compare Helena Chem Co. v. Cox, 664 SW3d 66, 72 (Tex 2023), reh denied (May 5, 2023), cert denied, 144 S Ct 199 (2023), and Gaulding v Celotex Corp., 772 SW2d 66, 68 (Tex 1989), with Winegrad, 64 NY2d at 853.

[7] Texas and New York substantive causation law in asbestos exposure cases are similar. Both require that a causation opinion show that the asbestos exposure was "a substantial factor" in causing the plaintiff's harm. Compare Nemeth v. Brenntag N. Am., 38 NY3d 336, 345 (2022), with Bostic v. Georgia-Pac. Corp., 439 SW3d 332, 350-351 (Tex 2014). Both allow a plaintiff to establish their case through direct or indirect evidence. Compare Nemeth, 38 NY3d at 343, quoting Parker v. Mobil Oil Corp., 7 NY3d 434, 447-448 (2006) (allowing a plaintiff to "`quantify exposure levels precisely or [to] use the dose-response relationship'" or, in the absence of such evidence, to use "`methods ... generally accepted in the scientific community'"), with Bostic, 439 SW3d at 353 (allowing a plaintiff to rely on "direct evidence" or, in the absence of such evidence, to "prove with scientifically reliable expert testimony that the plaintiff's exposure to the defendant's product more than doubled the plaintiff's risk"). And both have rejected the "some exposure" and the "any exposure" theories of liability. Compare Nemeth, 38 NY3d at 343, quoting Parker, 7 NY3d at 449 (noting that New York courts "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") (alteration in original), with Bostic, 439 SW3d at 338 (holding that "in mesothelioma cases proof of `some exposure' or `any exposure' alone will not suffice to establish causation").

Sources

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