Matter of New York City Asbestos Litig.

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Matter of New York City Asbestos Litig. 2019 NY Slip Op 05005 Decided on June 20, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 20, 2019
Friedman, J.P., Richter, Kahn, Singh, JJ.
9676 40000/88 190413/13

[*1]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.





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.



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.

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.

ENTERED: JUNE 20, 2019

CLERK