Tippin v. 3M Co., Alcat (2024)

Our plain-English summary of Tippin v. 3M Co., Alcat (New York Supreme Court, Appellate Division, December 31, 2024).

Corey Tippin sued Johnson & Johnson, Johnson & Johnson Consumer, Inc., and LTL Management LLC (together, J&J), along with other defendants, claiming his use of J&J's talcum powder caused his peritoneal mesothelioma. The trial court in New York County denied J&J's motion for summary judgment. The Appellate Division, First Department, reversed and dismissed the complaint against J&J. The court found that J&J made an initial showing, through epidemiological studies and expert testimony, that the talc could not have caused the disease. Tippin did not respond with evidence that his exposure to J&J's product was high enough to cause his illness. His epidemiology expert gave a lifetime exposure estimate only "by way of example." His pulmonologist admitted he had not calculated Tippin's lifetime dose and relied on that example. The court added that even if Tippin had identified a minimum dose sufficient to cause mesothelioma, he offered no proof that his exposure exceeded 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: December 31, 2024
• Citation: 2024 NY Slip Op 06679
• Stage: Appeal from summary judgment
• State: New York

Outcome. 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.

What the court held. A plaintiff opposing summary judgment must offer evidence of exposure to the defendant's product at levels sufficient to cause the disease, and an expert's illustrative estimate of lifetime exposure, with no actual dose calculation, does not raise a fact issue on causation.

Issues decided: Causation, Expert Testimony.

The people and their exposure

• Corey G. Tippin: peritoneal mesothelioma

The defendants

• Johnson & Johnson (manufacturer)
• Johnson & Johnson Consumer, Inc. (manufacturer)
• LTL Management LLC (manufacturer)

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.
• Olson v. Johnson & Johnson (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 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.

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.

2024 NY Slip Op 06679

COREY G. TIPPIN, Respondent,

v.

3M COMPANY, ALCAT, ET AL., Defendants,

JOHNSON & JOHNSON, ET AL., Appellants.

Index No. 190062/21, Appeal No. 3343, Case No. 2024-02949.

Decided December 31, 2024.

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

Appeal from the Order, Supreme Court, New York County (Adam Silvera, J.), entered April 8, 2024.

Patterson Belknap Webb & Tyler LLP, New York (Thomas P. Kurland of counsel), for appellants.

Dean Omar Braham Shirley LLP, Dallas, TX (Misty A. Farris of the bar of the State of Texas, admitted pro hac vice, of counsel), for respondent.

Before: Webber, J.P., Mendez, Shulman, O'Neill Levy, JJ.

Order, Supreme Court, New York County (Adam Silvera, J.), entered April 8, 2024, which denied the motion of defendants Johnson & Johnson, Johnson & Johnson Consumer, Inc., and LTL Management LLC (collectively, J&J) for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

J&J made a prima facie showing of entitlement to summary judgment by submitting epidemiological studies and expert testimony stating that plaintiff's use of its talcum powder could not have caused his peritoneal mesothelioma. In response, plaintiff failed to raise an issue of fact, as he did not adduce evidence that he was exposed to levels of toxin in J&J's products sufficient to cause his illness (see Nemeth v. Brenntag N. Am., 38 NY3d 336, 344-347 [2022]; Matter of New York City Asbestos Litig., 207 AD3d 415-416 [1st Dept 2022], lv denied sub nom Olson v. Brenntag N. Am., Inc., 39 NY3d 913 [2023]). Although plaintiff's epidemiology expert offered an estimate of plaintiff's lifetime exposure, the expert described the calculation as made only "by way of example" because "there are many variables that comprise an individual's total exposure." Furthermore, plaintiff's pulmonologist conceded that he did not calculate plaintiff's lifetime dose of exposure to asbestos through his use of J&J's product, and instead relied upon the epidemiology expert's example. This evidence falls short of satisfying the requirement of causation.

In any event, even assuming plaintiff set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to have caused his mesothelioma, he failed to proffer evidence that his exposure levels exceeded that threshold dose.

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