Cohen v American Biltrite Inc.

[*1] Cohen v American Biltrite Inc. 2018 NY Slip Op 51895(U) Decided on August 27, 2018 Supreme Court, New York County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 27, 2018
Supreme Court, New York County

Steven Andrew Cohen, Individually and as Personal Representative of the Estate of Sandra Florence Cohen, Deceased, Plaintiff,

against

American Biltrite Inc., et al., Defendants.



190044/2016



For Plaintiff:

Leah C. Kagan Esq. and Joseph Mandia Esq.

Simon Greenstone Panatier, P.C.

750 3rd Avenue, New York, NY 10017

For Defendant Colgate-Palmolive Company

Adam Abensohn Esq.

Quinn Emanuel Urquhart & Sullivan, LLP

51 Madison Avenue, New York, NY 10010

Erik C. DiMarco Esq.

Gordon & Rees Scully Mansukhani LLP

1 Battery Park Plaza, New York, NY 10004
Lucy Billings, J.

Plaintiff sues defendants to recover damages for the decedent Sandra Cohen's exposure to asbestos from talc contaminated with asbestos in the Cashmere Bouquet talcum powder that Sandra Cohen used from 1951 to the early 1970s and that was manufactured by defendant Colgate-Palmolive Company. Plaintiff has discontinued his claim for punitive damages. Colgate-Palmolive moves for summary judgment dismissing the remaining claims against Colgate-Palmolive, C.P.L.R. § 3212(b), based on the absence of evidence that any Colgate-Palmolive product contributed to Sandra Cohen's exposure to asbestos. Colgate-Palmolive concedes, however, that Sandra Cohen contracted mesothelioma and that exposure to asbestos causes mesothelioma and does not in this motion identify any other cause of mesothelioma or source of her asbestos exposure. At oral argument June 29, 2018, the parties stipulated that the court may consider all the parties' exhibits, except the unsworn reports by plaintiff's experts, as authenticated and admissible for purposes of determining the summary judgment motion.

I. APPLICABLE STANDARDS

To succeed at trial on plaintiff's claim, plaintiff must establish not only that (1) asbestos [*2]in Colgate-Palmolive's talcum powder could have contributed to the development of Sandra Cohen's mesothelioma, but also that (2) her exposure to that asbestos actually did contribute to the development of her mesothelioma. Sean R. v. BMW of N. Am., LLC, 26 NY3d 801, 808 (2016); Cornell v. 360 W. 51st St. Realty, LLC, 22 NY3d 762, 784 (2014); Parker v. Mobil Oil Corp., 7 NY3d 434, 448 (2006); Matter of New York City Asbestos Litig., 148 AD3d 233, 235-36 (1st Dep't 2017). See Matter of New York City Asbestos Litig., 154 AD3d 441, 441 (1st Dep't 2017); Fraser v. 301-52 Townhouse Corp., 57 AD3d 416, 419 (1st Dep't 2008). Since none of the Cashmere Bouquet that Sandra Cohen actually used was ever tested for asbestos, plaintiff must establish that enough Cashmere Bouquet contained enough asbestos during the period she used Cashmere Bouquet that it is more likely than not the asbestos in Cashmere Bouquet contributed to her disease.

Upon Colgate-Palmolive's motion for summary judgment, however, Colgate-Palmolive bears the initial burden to establish that exposure to asbestos in Colgate-Palmolive's talcum powder could not have contributed to Sandra Cohen's mesothelioma or at least that Sandra Cohen was not exposed to levels of asbestos sufficient to contribute to the development of her disease. Matter of New York City Asbestos Litig., 123 AD3d 498, 498 (1st Dep't 2014); Matter of New York City Asbestos Litig., 122 AD3d 520, 521 (1st Dep't 2014); Reid v. Georgia-Pacific Corp., 212 AD2d 462, 463 (1st Dep't 1995). Colgate-Palmolive may not meet its burden by merely pointing to deficiencies in plaintiff's evidence. Ricci v. A.O. Smith Water Prods. Co., 143 AD3d 516, 516 (1st Dep't 2016); Koulermos v. A.O. Smith Water Prods., 137 AD3d 575, 576 (1st Dep't 2016).

II. EVIDENCE OF SANDRA COHEN'S NONEXPOSURE TO ASBESTOS IN CASHMERE BOUQUET

A. Dr. Sanchez's Conclusion

To support the conclusion that Sandra Cohen was not exposed to asbestos in Cashmere Bouquet, Matthew Sanchez Ph.D., a geologist, an investigator, and a testing methods expert, attests to reports of studies that showed the absence or minimal amounts of asbestos in the mines in Montana, North Carolina, and Italy from which Colgate-Palmolive obtained the talc used in Cashmere Bouquet. Sadek v. Wesley, 27 NY3d 982, 984 (2016); Cornell v. 360 W. 51st St. Realty, LLC, 22 NY3d at 781; Brown v. Speaker, 66 AD3d 422, 423 (1st Dep't 2009). See Sean R. v. BMW N. Am., LLC, 26 NY3d at 809; Fraser v. 301-52 Townhouse Corp., 57 AD3d at 418; Chu v. New York State Urban Dev. Corp., 47 AD3d 542, 543 (1st Dep't 2008). Dr. Sanchez also attests, however, that, "because the accessory mineral content, including the assumed asbestos content, of a mine will vary throughout a deposit, finding 'asbestos' in talc in a given year does not permit the conclusion that asbestos was present at some other point in time." Aff. of Erik DiMarco Ex. 7 ¶ 35. Dr. Sanchez thus undermines his own conclusion that, based on testing of Colgate-Palmolive's talc source mines, they contained little if any asbestos, particularly since Dr. Sanchez relies on testing conducted years or decades after any exposure by Sandra Cohen to asbestos through use of Colgate-Palmolive's Cashmere Bouquet. Applying his reasoning, if the asbestos content of a mine will vary throughout a deposit, finding an absence of asbestos in talc in a given year does not permit the conclusion that asbestos was absent at other times. While one study finding no asbestos in talc samples to which Dr. Sanchez referred was in 1972, the findings related only to Colgate-Palmolive's source mine in Italy. Dr. Sanchez also conducted his own testing of talc, revealing no asbestos, conducted decades after Sandra Cohen's exposure, and testing only samples from the Italian mine.

The only study of asbestos in Colgate-Palmolive's Cashmere Bouquet even close in time to Sandra Cohen's exposure was testing by the United States Food and Drug Administration (FDA) of talcum powder in 1973, which found no asbestos, but included only three containers of Cashmere Bouquet among containers of 195 different products tested. The absence of asbestos in three containers in 1973 falls short of establishing the absence of asbestos in most or even the majority of Cashmere Bouquet containers during the 1950s and 1960s. Although not specific to Cashmere Bouquet, the FDA in fact concluded that "cosmetic talc produced in the 1960s and [*3]early 1970s did contain asbestiform minerals." Aff. of Leah C. Kagan Ex. 103, at 1, Ex. 142, at FDA00003601.

Dr. Sanchez's conclusion thus lacks a rational connection to the facts on which he bases his conclusion. Lopez v. Fordham Univ., 69 AD3d 532, 533 (1st Dep't 2010); Guzman v. 4030 Bronx Blvd. Assoc., L.L.C., 54 AD3d 42, 50-51 (1st Dep't 2008); Montes v. New York City Tr. Auth., 46 AD3d 121, 124 (1st Dep't 2007). Absent that connection, Colgate-Palmolive's evidence lacks viable expert support. Nonhuman Rights Project, Inc. v. Lavery, 152 AD3d 73, 77 (1st Dep't 2017); Chu v. New York State Urban Dev. Corp., 47 AD3d at 543.

B. Conclusions by Plaintiff's Experts on Which Colgate-Palmolive Relies

Colgate-Palmolive also points to deposition or prior trial testimony by plaintiff's experts Dr. John Webber, an environmental scientist and a microscopist, Sean Fitzgerald, a geologist, and Dr. Ronald Gordon, a microscopist, in other actions, that nonasbestos forms of minerals associated with asbestos are more common than the asbestos forms. This testimony is too vague and lacking in the requisite specificity to constitute a scientific opinion that asbestos was absent from Colgate-Palmolive's talc source mines. Parker v. Mobil Oil Corp., 7 NY3d at 449; Matter of New York City Asbestos Litig., 148 AD3d at 237; Prince v. Lovelace, 115 AD3d 424, 424 (1st Dep't 2014); Cleghorne v. City of New York, 99 AD3d 443, 447 (1st Dep't 2012).

Fitzgerald's testimony that chrysotile in a Vermont mine would be "sporadic and occasional" as the mine developed, DiMarco Aff. Ex. 59, at 53, is irrelevant since Colgate-Palmolive did not use talc from any mine in Vermont, but nevertheless is consistent with Dr. Sanchez's opinion that the asbestos content of mines varies throughout deposits over time. Fitzgerald similarly testified that the results of testing in different areas of a mine vary because the mineralogical boundary of a mineral, here of a talc deposit, changes. These opinions also must be viewed along with Dr. Webber's deposition testimony that, after talc is extracted from mines, it, along with any asbestos from any deposits extracted, is milled, distributing the ground asbestos throughout the talc.

Fitzgerald's testimony that the majority of talc mined in Italy contained less than 1% asbestos, even assuming the talc derived from the mine where Colgate-Palmolive obtained its talc, does not bear on Colgate-Palmolive's talc source mines in Montana or North Carolina. His testimony that negative findings of asbestos far outnumbered positive findings in Colgate-Palmolive's laboratory notebooks from 1976 is also irrelevant, because those findings occurred after Sandra Cohen's exposure.

Colgate-Palmolive presents no other evidence of the asbestos levels in Colgate-Palmolive's source mines during the relevant period. Fraser v. 301-52 Townhouse Corp., 57 AD3d at 420.

III. WHETHER SANDRA COHEN'S EXPOSURE TO ASBESTOS CAUSED HER MESOTHELIOMA

Colgate-Palmolive alternatively contends that, even if Sandra Cohen was exposed to asbestos, plaintiff cannot prove that the amount to which she was exposed was sufficient to cause mesothelioma. As set forth above, Colgate-Palmolive, upon its motion for summary judgment, bears the burden to demonstrate that Sandra Cohen's exposure to asbestos was in amounts insufficient to cause mesothelioma. Matter of New York City Asbestos Litig., 123 AD3d at 498; Matter of New York City Asbestos Litig., 122 AD3d at 521; Reid v. Georgia-Pacific Corp., 212 AD2d at 463. Expert evidence is required to establish whether asbestos exposure was sufficient to cause mesothelioma, Matter of New York Asbestos Litig., 28 AD3d 255, 256 (1st Dep't 2006); Lustenring v. AC & S, Inc., 13 AD3d 69, 70 (1st Dep't 2004), but precise quantification is not required to establish causation. Sean R. v. BMW of N. Am., LLC, 26 NY3d at 808; Cornell v. 360 W. 51st St. Realty, LLC, 22 NY3d at 784; Parker v. Mobil Oil Corp., 7 NY3d at 448; Fraser v. 301-52 Townhouse Corp., 57 AD3d at 419. A "scientific expression" of the level of Sandra Cohen's asbestos exposure may show that it was sufficient to have caused her disease. Parker v. Mobil Oil Corp., 7 NY3d at 449; Nonnon v. City of New York, 88 AD3d 384, 396 (1st Dep't 2011); Jackson v. Nutmeg Tech., Inc., 43 AD3d 599, 602 (3d Dep't 2007).

A. Colgate-Palmolive's Evidence

Colgate-Palmolive presents a certified copy of a letter dated July 11, 1986, by J.W. Swanson, FDA Acting Associate Commissioner for Regulatory Affairs. See C.P.L.R. § 4540(a); People v. Casey, 95 NY2d 354, 362 (2000); Cadles of Grassy Meadows II, L.L.C. v. Lapidus, 93 AD3d 535, 535 (1st Dep't 2012); People v. Brown, 221 AD2d 270, 271 (1st Dep't 1995); F.W. Woolworth Co. v. Southbridge Towers, 204 AD2d 174, 175 (1st Dep't 1994). He states that, based on recent review of data collected in the late 1970s, showing that "the quality of cosmetic talc had significantly improved," asbestos levels in talc were low and posed no hazard, and the "risk from a worst-case estimate of exposure to asbestos from cosmetic talc would be less than the risk from environmental background levels of exposure to asbestos." DiMarco Aff. Ex. 21, at 3. Because this conclusion regarding the risk of asbestos exposure from talc was based on data collected after Sandra Cohen's exposure, the data and the conclusion drawn from these data fail to establish that talc use during the period that Sandra Cohen used talc posed a low risk of exposure to asbestos.

Colgate-Palmolive also points to studies of Italian talc miners and millers during the period of Sandra Cohen's exposure, which revealed no cases of mesothelioma. Again these studies relating to Colgate-Palmolive's talc source mine in Italy do not bear on its mines in Montana and North Carolina. Absent similar studies regarding these mines or evidence establishing the decedent's minimal exposure or lack of exposure to asbestos, Colgate-Palmolive fails to demonstrate the absence of causation. See Parker v. Mobil Oil Corp., 7 NY3d at 449; Todman v. Yoshida, 63 AD3d 606, 607 (1st Dep't 2009).

Colgate-Palmolive cites to deficiencies in testimony and reports by plaintiff's experts again to demonstrate plaintiff's inability to prove causation. Contrary to Colgate-Palmolive's contention, the testimony of Jacqueline Moline M.D. has not been precluded outright; instead, her conclusion regarding causation has been rejected when neither she nor any other evidence quantified the amount of asbestos to which a person was exposed. Matter of New York City Asbestos Litig., 148 AD3d at 237. If she testifies in this action, and she or other evidence quantifies the asbestos to which Sandra Cohen was exposed, a foundation may be laid for an opinion whether that amount caused her mesothelioma based, for example, on studies that have shown other persons exposed to a comparable or lesser amount of asbestos have developed mesothelioma. Nonnon v. City of New York, 88 AD3d at 396-97; Jackson v. Nutmeg Tech., Inc., 43 AD3d at 602. See Sean R. v. BMW of N. Am., LLC, 26 NY3d at 809; Cornell v. 360 W. 51st St. Realty, LLC, 22 NY3d at 784; Parker v. Mobil Oil Corp., 7 NY3d at 449; Fraser v. 301-52 Townhouse Corp., 57 AD3d at 419-20.

Plaintiff's expert Dr. Arnold Brody testified at the trial of another action, and reports by plaintiff's experts John Maddox M.D. and Dr. Moline agree, that asbestos doses may be too low to cause mesothelioma. E.g., DiMarco Aff. Ex. 80, at 184. Admissions that low levels of asbestos exposure do not cause mesothelioma are irrelevant here because, as discussed above, Colgate-Palmolive has failed to demonstrate that Sandra Cohen was exposed to asbestos at minimal levels or was not exposed at all.

Although Dr. Gordon's report of his fiber burden analysis of the asbestos Dr. Gordon found in Sandra Cohen's tissue is not in admissible form, once presented by Colgate-Palmolive to support its motion, plaintiff may rely on that report in opposition. Mitchell v. Calle, 90 AD3d 584, 585 (1st Dep't 2011); Ayala v. Douglas, 57 AD3d 266, 267 (1st Dep't 2008); Navedo v. Jaime, 32 AD3d 788, 789-90 (1st Dep't 2006); Thompson v. Abbasi, 15 AD3d 95, 97 (1st Dep't 2005). See Joseph v. Board of Educ. of the City of NY, 91 AD3d 528, 529 (1st Dep't 2012); Dembele v. Cambisaca, 59 AD3d 352 (1st Dep't 2009); Hernandez v. Almanzar, 32 AD3d 360, 361 (1st Dep't 2006). Thus, for purposes of Colgate-Palmolive's motion, the court must accept as true Dr. Gordon's fiber burden analysis, from which Dr. Gordon concluded that Sandra Cohen's exposure to asbestos was more than background exposure, was substantial, and substantially contributed to her mesothelioma. See De Lourdes Torres v. Jones, 26 NY3d 742, 763 (2016); Vega v. Restani Constr. Corp., 18 NY3d 499, 503 (2012); Cahill v. Triborough Bridge & [*4]Tunnel Auth., 4 NY3d 35, 37 (2004).

In support of Colgate-Palmolive's motion, before even looking to plaintiff's rebuttal, Dr. Sanchez attests, through the incorporation of one of his reports dated July 21, 2017, that Dr. Gordon's testing method for detecting asbestos fibers in Sandra Cohen's tissue was not in accord with "generally accepted or reliable methodologies." DiMarco Aff. Ex. 7 ¶ 46. Dr. Sanchez draws this conclusion on the basis that his own testing could not find the asbestos fibers Dr. Gordon found, in part because the grids on which the tissue samples were transmitted for testing were unsuitable for evaluation. Dr. Sanchez does not show, however, that the grids were unsuitable when Dr. Gordon evaluated them. Dr. Sanchez admits that he picked up and transported the grids from Dr. Gordon at Mt. Sinai Medical Center and that the grids may be affected by handling and thus damaged. In any event, any criticisms of Dr. Gordon's analysis or his conclusions drawn from it do not satisfy defendant's burden, upon its motion for summary judgment, to establish that Sandra Cohen's exposure to asbestos was no more than background exposure, was insubstantial, or did not substantially contribute to her mesothelioma.

Although another state's court rejected Dr. Gordon's testing methods, Brandt v. Bon-Ton Stores, Inc., 2017 WL 4271039, at *5-6 (Pa. Ct. Common Pleas Sept. 25, 2017), not only is that determination not binding on this court, but, more importantly, that court found that Dr. Gordon's methods were not accepted in his scientific field or reliable after a hearing at which defendants presented expert evidence not presented in support of Colgate-Palmolive's motion here. Finally, even if Dr. Sanchez's inability to confirm Dr. Gordon's findings of asbestos fibers in Sandra Cohen's tissue met Colgate-Palmolive's initial burden, the two experts' conflicting findings merely raise factual issues precluding summary judgment. Scholastic Inc. v. Pace Plumbing Corp., 129 AD3d 75, 87 (1st Dep't 2015); Mike v. 91 Payson Owners Corp., 114 AD3d 420, 420 (1st Dep't 2104); Ho v. Greenwich Ins. Co., 104 AD3d 601, 601 (1st Dep't 2013); Cregan v. Sachs, 65 AD3d 101, 109 (1st Dep't 2009).

Dr. Sanchez likewise fails to undermine Dr. Gordon's conclusions regarding causation. See Edmund v. Albert Einstein Hosp., 118 AD3d 578, 579 (1st Dep't 2014); Nickolson v. Albishara, 61 AD3d 542, 542 (1st Dep't 2009). Although Dr. Gordon concedes his inability to identify the source of the asbestos in Sandra Cohen's tissue, Colgate-Palmolive does not indicate how this concession undermines either Dr. Gordon's findings of asbestos in her tissue or his conclusions that asbestos contributed to her mesothelioma. The testimony by Sandra Cohen, not Dr. Gordon, regarding her consistent use of Cashmere Bouquet every day for 20 years and her lack of exposure to other sources of asbestos, plus the evidence of asbestos in Cashmere Bouquet, connect the source of her asbestos exposure to Cashmere Bouquet. In any event, again, any deficiencies in the findings or conclusions regarding causation by one of plaintiff's several experts fail to satisfy Colgate-Palmolive's burden to establish the absence of a causal connection between Sandra Cohen's asbestos exposure and her mesothelioma or between Cashmere Bouquet and her asbestos exposure. Weaknesses in plaintiff's evidence are for the jury to weigh against the burden plaintiff must meet at trial and against the strengths and weaknesses of Colgate-Palmolive's evidence.

B. Plaintiff's Further Evidence

Even had Colgate-Palmolive successfully shown the absence of causation, plaintiff's evidence raises factual issues regarding causation. Dr. Ronald Gordon, Sean Fitzgerald, and their co-author Dr. James Millette conclude: "Our findings indicate that historic talcum powder exposure is a causative factor in the development of mesothelioma and possibly lung cancers in women." Ronald E. Gordon, Sean Fitzgerald, & James Millette, Asbestos in Commercial Cosmetic Talcum Powder as a Cause of Mesothelioma in Women, 20 Int'l J. Occupational & Envtl. Health No. 4 at 318, 330 (2014); Kagan Aff. Ex. 14, at 330. The authors' testing revealed talcum powder "consistently contaminated with asbestos tainted talc derivatives" and that the "amount of asbestos was variable based on the time of manufacture and the talc source." Id. The published study further found that "low concentrations of asbestos in raw materials do not necessarily correlate to low health risk." Id. at 331. The deposition testimony by Diana Scala, [*5]Colgate-Palmolive's corporate representative, corroborates this finding by concluding that no safe level of asbestos may be assumed. To rebut the criticisms of Dr. Gordon's methods, plaintiff presents the deposition testimony by Arthur Langer M.D., Colgate-Palmolive's expert, that he and Dr. Gordon used the same methods in identifying asbestos and that Dr. Gordon is a reputable scientist.

IV. CONCLUSION

For the reasons explained above, defendant Colgate-Palmolive Company has failed to meet its initial burden to demonstrate the absence of asbestos in its talc source mines or in its talcum powder. Matter of New York City Asbestos Litig., 123 AD3d at 499; Matter of New York City Asbestos Litig., 122 AD3d at 521; Esteva v. City of New York, 30 AD3d 212, 213 (1st Dep't 2006). Even if Colgate-Palmolive met its burden to demonstrate that Sandra Cohen's exposure to asbestos in its talcum powder did not cause her mesothelioma, plaintiff has raised factual issues regarding that causal connection. Matter of New York City Asbestos Litig., 146 AD3d 700, 700 (1st Dep't 2017); Nonnon v. City of New York, 88 AD3d at 394; Jackson v. Nutmeg Tech., Inc., 43 AD3d at 602. Therefore the court denies Colgate-Palmolive's motion for summary judgment. C.P.L.R. § 3212(b).

DATED: August 27, 2018

LUCY BILLINGS, J.S.C.