NY High Court Tosses $16.5M Mesothelioma Death Verdict

The New York Court of Appeals threw out a $16.5 million verdict awarded to the estate of a woman who died from mesothelioma that allegedly came from tainted talc, saying her estate’s experts had failed to establish that the amount of asbestos the talc product exposed her to was enough to cause cancer.

The judges said neither of the expert witnesses proffered by Francis Nemeth, who administered the estate of his wife, Florence, established a “scientific expression” of her exposure level and dismissed the complaint against Whittaker Clark & Daniels Inc.

Florence Nemeth had used a powder made with talc supplied by Whittaker for 10 years in the 1960s and ’70s and was diagnosed with peritoneal mesothelioma in 2012 before dying of the disease in 2016. Her husband sued numerous defendants involved in the manufacturing and distribution of products he alleged contained asbestos and settled with all defendants except Whittaker.

The case went to trial in 2017 and resulted in the jury awarding $15 million to Florence Nemeth’s estate and $1.5 million to Francis Nemeth, though the award was later stipulated by the parties down to $2.2 million. Whittaker appealed the verdict, and an appeals court affirmed before the case went up to the state’s highest court. 

The majority held that the two experts — geologist Sean Fitzgerald and Dr. Jacqueline Moline, an internal medicine doctor — while qualified, had as a matter of law failed to establish that Whittaker’s talc had caused Florence Nemeth’s cancer.

Fitzgerald had used a “glove box” testing method in which the powder was placed in a sealed container, with gloves attached to agitate the powder and pumps placed where a person’s nose would be to demonstrate how the fibers could be inhaled, and Moline’s opinion was based in part on Fitzgerald’s findings using that testing method.

While Moline had testified that Florence Nemeth’s exposure to asbestos in the powder contributed to her cancer, she also testified that there are some minor exposure levels that don’t increase the risk of mesothelioma and that sometimes the disease develops without a known cause.

The doctor’s testimony was not enough to establish causation, the judges said, because Moline did not quantify what exposure level was necessary for it to cause the disease, or establish that Florence Nemeth had been exposed at such a level.

LAW360: https://www.law360.com/articles/1487523/ny-high-court-tosses-16-5m-mesothelioma-death-verdict

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