By William A. Ruskin, EAS Independent Consultant and William L. Anderson, former partner at Crowell & Moring
This article is a revision of an article that first appeared in the Lexis Nexis publication
Editor’s Note: Mr. Anderson is a former partner with Crowell & Moring LLP in Washington, DC, and is presently semi-retired and in private practice. He formerly chaired the Product Liability Committee of the International Association of Defense Counsel (IADC). Mr. Ruskin founded the Law Office of William A. Ruskin, PLLC in Rye Brook, New York. He has represented industrial companies and manufacturers nationally in environmental accidents, CERCLA, product liability and drug and medical device product litigation. He recently chaired the IADC’s Toxic and Hazardous Substances Litigation Committee.
Asbestos litigation has undergone many changes over the years to become the longest running mass tort. Today, the asbestos litigation often involves remote but financially viable defendants that are associated with small and increasingly speculative exposures. The latest iteration of the litigation contends that asbestos fibers in cosmetic talc body products produce mesothelioma.
In recent years, courts have started pushing back on the seemingly unlimited expansion of asbestos litigation. In particular, many courts have rejected an unscientific causation approach advanced by plaintiff experts that has facilitated the growth of asbestos and talc litigation—the widely discredited any exposure theory. This theory, which itself has morphed over time in response to court rulings, contends that any exposure to asbestos, or “each and every exposure” to asbestos, or every “cumulative” exposure to asbestos, contributes to asbestos-related malignancies.
In this context, the New York Court of Appeals (the state’s highest court) in Nemeth v. Brenntag North America (4/26/22), recently addressed the proofs needed for a talc/asbestos case and rejected plaintiff’s claim that her mesothelioma was caused by exposure to asbestos fibers in cosmetic talc products. The court first rejected reliance by the plaintiffs’ experts, Sean Fitzgerald and Dr. Jacqueline Moline, on a sealed “glove-box” exposure test to establish a causative dose. The court further faulted the experts for failing to identify either the actual dose the plaintiff received or to prove that the dose exceeded a level shown in the scientific literature to cause peritoneal mesothelioma as required by the court’s 2006 Parker v. Mobil decision.
The outcome in Nemeth has been a long time coming. Since Parker was decided over fifteen years ago, lower New York courts have routinely failed to apply Parker to asbestos and similar toxic tort lawsuits. That failure has resulted in the survival of flawed causation testimony in the asbestos, talc, and similar dockets like the trace benzene litigation. In Nemeth, the Court of Appeals has now applied the Parker standard forcefully to a talc/asbestos case. The high court clarified, without exception, that asbestos and talc expert testimony must meet the Parker standard. The Nemeth decision should have a major impact on New York asbestos cases, including the NYCAL docket in New York City as well as asbestos and talc lawsuits nationwide.
This article describes the course of plaintiff experts’ historical causation approaches that led to Nemeth and how the Nemeth court correctly exposed the weaknesses in the experts’ testimony. Nemeth represents the latest among many rulings by courts that are seeking to regaining control over their asbestos and similar low-dose dockets. The rulings include more than forty opinions rejecting plaintiffs’ any exposure approach. Increasingly, courts are treating asbestos lawsuits like other toxic tort cases with regard to the plaintiff’s burden of proof on causation.
Nemeth also dealt with a transparent attempt to get around the many court rejections of the any exposure methodology by invoking a misleading glove box “release” study by the plaintiff’s expert. Thus, Nemeth represents not only a rejection of any exposure testimony, but also rejects efforts to use irrelevant and exaggerated “release” studies to imply the actual dose was high. Nemeth is thus a post-any exposure attempt by plaintiffs to keep low-dose asbestos litigation going, without conforming to the actual proof requirements of Parker and scientific evidence.
Nemeth should be applied by other courts to cut back on frivolous and damaging “low-dose” asbestos and talc actions. As Nemeth and other courts have forcefully concluded, courts must turn away from applying special rules for asbestos causation, especially in novel and unproven dockets like the talc/mesothelioma litigation.
I. The Course of Asbestos and Talc Litigation Leading to Nemeth
Nemeth represents an early decision addressing attempts by plaintiff experts to work around rulings rejecting any exposure causation testimony. For those who are not deep into this world, here is a brief review.
The Trip from Old Asbestos Litigation to the Any Exposure Theory in Low Dose Cases
In the 1970s and early 1980s, asbestos litigation focused on industrial exposures that produced the vast majority of asbestos disease, including mesothelioma. In particular, asbestos factory workers and insulators, including shipyards workers, often labored for years around heavy clouds of friable, amphibole asbestos fibers. Epidemiology studies starting in the 1950s identified high levels of asbestos disease in those industries.
The early cases involving heavy occupational exposures to potent asbestos fibers resulted in some lax causation rules that have affected the litigation ever since. Courts sometimes relaxed the proof standards due to the latency effect of asbestos disease—many years separate the exposure from the disease, making proof difficult. Some courts allowed claims of exposure to mere asbestos “dust” to suffice for exposure evidence. One such decision by a New York appellate court, Lustenring v. AC&S, Inc. (2004), has heavily influenced New York decisions, including the Nemeth lower court opinions. (As discussed below, the Court of Appeals in Nemeth rejected Lustenring’s causation approach in the context of current talc and asbestos litigation.)
After most of the “big dusties” that comprised the asbestos industry filed bankruptcy in the late 1990s and early 2000s due to asbestos-related liabilities, the course of asbestos litigation changed. Plaintiff attorneys shifted their focus to makers of “bound” products (i.e., products in which the asbestos is tightly encased in resins and other materials). Manufacturers of brakes and gaskets became primary defendants, sweeping automotive companies and associated entities (parts suppliers, dealers, and auto parts retailers) into the litigation. The exposures from bound products, however, were vastly different from the old insulation world—brakes and gaskets can release some fibers under certain circumstances, but at much lower doses. Further, the products were in general made of chrysotile fibers, a much less potent form of asbestos. The epidemiological literature related to automotive mechanic work has consistently shown that there is no link between that work and mesothelioma.
To keep the asbestos litigation going, despite the diminishing evidence of actual harm from targeted products, plaintiff attorneys and their experts came up with a causation theory that did not require epidemiological evidence, proof of a causative dose, or even proof of a “substantial factor” in causation as most jurisdictions require: the single fiber or any exposure approach. Under these approaches, a defendant that contributed minimal exposures could be held liable even if the plaintiff had substantial occupational exposures to bankrupt entities’ asbestos-containing products. For instance, a worker who spent years in Navy shipyards and performed a few backyard automotive brake jobs might pursue a full recovery from the brake companies despite the “mountain v. molehill” relationship between the two exposures. Plaintiff experts embraced the any exposure approach because it relieved them of having to identify a causative dose from the targeted product as they would have to do in any other toxic tort case. The experts simply contend that every exposure to asbestos (apart from background exposures) is a cause of mesothelioma. Every drop of water in a glass, these experts often testified, contributes to the glass being full. Adding a single marble to the full glass causes it to overflow.
For a time, this approach worked. By the mid-2000s, however, courts were getting wise to the fact that the any exposure approach basically wiped out the notion of “substantial” in substantial factor causation and shifted the burden of proof to defendants to demonstrate lack of causation from whatever low dose exposure the case involved. Beginning in 2005, a great many courts rejected the any exposure approach and required plaintiffs to prove (1) a quantified actual dose received (not just “dust”), and (2) epidemiological or other evidence that such a dose would produce disease. Today, many federal courts and the highest courts of several states have rejected any exposure testimony in its various forms.
The Nemeth decision represents a clear application of traditional tort causation principles and should, if applied correctly, end plaintiffs’ efforts to impose unscientific any exposure testimony in New York asbestos litigation. Nemeth also represents a major blow to newer talc/asbestos claims and potentially to the growing trace benzene docket.
II. Nemeth Rejects Effort to Evade Exclusion of Any Exposure Expert Testimony
The Nemeth appeal involved plaintiffs’ recent efforts to evade opinions rejecting any exposure or “dust”-based causation testimony.
Prior to Nemeth, the New York Court of Appeals in Parker and two follow up cases, Sean R. v. BMW of North America, LLC (2016), and Cornell v. 360 W. 51st St. Realty, LLC (2014), strongly rejected attempts by plaintiff experts to render causation opinions without demonstrating a causative dose through scientifically acceptable methods. In Parker the court rejected a claim that benzene in gasoline caused plaintiff’s acute myeloid lymphoma (AML), based on assertions (without a dose quantification or estimation) that the exposures were “significant” or “excessive.” The Parker opinion confirmed the ground rules for toxic tort litigation in New York—plaintiffs’ experts must demonstrate an actual dose received by a plaintiff and demonstrate that the dose is consistent with studies showing disease at such levels.
The courts of New York should have applied Parker and its progeny to asbestos actions and required plaintiffs to eschew the any exposure or “dust” approach to causation. But, because Parker, Sean, and Cornell did not involve asbestos, the plaintiffs’ bar and some trial courts continued to treat asbestos cases differently, applying the old Lustenring approach and merely requiring proof of exposure to some unquantified amount of asbestos-containing dust.
The first post-Parker New York case to tackle an asbestos exposure—Juni v. A.O. Smith Water Prods. Co. (2018).—rejected the old “dust” approach. The intermediate appellate court in Juni applied Parker and rejected any exposure or cumulative exposure testimony in lieu of a scientific expression of dose and causation.
The Court of Appeals affirmed Juni, but issued only a short affirmation, not a fulsome review of plaintiffs’ errors and rejection of their approach. Juni had a beneficial effect on the New York docket, but without a forceful Court of Appeals affirmation, some courts continued to ignore both Parker and Juni. Ongoing asbestos litigation in New York produced contradictory opinions, with some courts allowing the permissive Lustenring approach and others applying Juni and Parker to reject dose-less testimony. It may be that the Court of Appeals believed that Nemeth’s issuance was necessary to reinforce Juni.
In Nemeth, the Court of Appeals locked down the rule of Parker and Juni in asbestos and talc litigation. The opinion also serves as an important rejection of plaintiffs’ recent attempt to dodge the prior opinions through a “glove box” exposure study. Realizing that pure reliance on “dust” or any exposure approaches was likely to meet with resistance post-Juni, the plaintiff’s experts in Nemeth incorporated a “glove box” test. The glove box approach—in which plaintiffs’ expert Sean Fitzgerald shook talcum powder in a small, enclosed box and then measured the release of claimed asbestos fibers—produces a highly exaggerated exposure estimate. The experts next applied that estimate to claim that plaintiff would have experienced high (but unquantified) exposures for the actual talc usage over time. In Nemeth, that attempt did not work. The court understood that an actual exposure in an open bathroom setting could not be replicated by an intense and misleading glove box setting. The court explained:
The dissent, plaintiff, and the majority below all characterize Fitzgerald’s glove box test as a quantification, or at least a scientific expression, of decedent’s exposure, recasting it as some sort of “breathability” study (dissenting op at 21). It was not…. Fitzgerald’s test simply failed to provide any scientific expression linking decedent’s actual exposure to asbestos to a level known to cause mesothelioma.
The court also rejected the testimony of plaintiff’s medical causation expert, Dr Jacqueline Moline, who contended that plaintiff’s asbestos exposures, as demonstrated by the glove box test, were many times ambient levels and thus causative. The court stated:
Dr. Moline provided the expert opinion that decedent’s “exposure to the contaminated talcum powder was a substantial contributing factor” in causing decedent’s peritoneal mesothelioma. The basis for that opinion, however, did not meet our requirements for establishing exposure to a toxin in an amount sufficient to cause decedent’s peritoneal mesothelioma.
Despite the addition of the glove box test, Dr. Moline continued to rely on her standard causation theory—that “brief or low levels” of asbestos cause disease, that mesothelioma is virtually always associated with asbestos exposure, and if there is a known exposure, that is the cause. This is the discredited any exposure testimony. The glove box test did not serve as a dose assessment, nor did Dr. Moline need one—she assumed causation by the fact of exposure, not the degree. Nor did the studies she relied on provide a basis for establishing a causative level of asbestos in talc. Neither an article commonly used by plaintiffs’ experts (the “Welch article”) nor the Helsinki criteria that Dr. Moline and others frequently cite provide any scientific expression of dose—instead, those sources provide unhelpful characterizations such as “brief or low level.”
The glove box test turned out to be smoke and mirrors—an attempt to mislead the court into thinking plaintiffs had performed some sort of rigorous dose assessment. Going forward, New York courts should reject plaintiffs’ use of glove box or other misleading simulation studies that do not reflect a plaintiff’s actual exposures.
The import of Nemeth is not that it is the first decision to reject any exposure testimony or similarly vague expressions of exposure in New York. Parker itself did so, although not in the asbestos context. The Juni opinion should have locked down the application of Parker to asbestos. The primary import of Nemeth for asbestos litigation is that the decision is the newest of several major decisions by the Court of Appeals rejecting any exposure or similar “brief or low level” causation testimony in New York. In other states, such as Texas, the highest court has had to repeat its initial asbestos causation ruling to get the message across. Nemeth, following on Parker and Juni, should have the same effect in New York. Plaintiffs can no longer evade these rulings by relying on Lustenring—the Nemeth court all but overruled that decision. And plaintiffs’ experts cannot resort to their key lynchpins of Helsinki, Welch, case reports, or misleading exposure simulations to prove cases that are not supported by epidemiology.
The dissent in Nemeth argued that applying Parker to asbestos litigation will make plaintiffs’ burden of proof “impossible.” The majority correctly rejected this contention, noting that plaintiffs could have performed an exposure assessment in actual bathroom conditions rather than in the artificial and exaggerated glove box environment. Even then, Dr. Moline would have had to identify studies documenting disease from such levels and not resort to vague “brief or low level” exposure mantras. Exposures to asbestos that do, in fact, produce mesothelioma are well-documented in epidemiology studies. Exposures that are too low to produce disease are also well-documented (e.g., brake worker studies). There is nothing “impossible” about a standard that permits meaningful exposure cases supported by dose assessments and epidemiology to go forward while rejecting those that speculate in the absence of actual evidence.
The New York NYCAL docket in New York City has been a magnet for asbestos cases for many years. Parker and Juni made strides towards applying traditional causation rules to asbestos litigation, but those decisions met with considerable resistance from the plaintiffs’ bar. Nemeth leaves little room for escape—defense counsel should aggressively assert and apply Nemeth to ensure the trial and intermediate courts understand that Parker applies in full to asbestos litigation. Plaintiffs must now prove and defend a scientific expression of causative dose in New York.
Nemeth and the Talc Litigation
Although Nemeth’s primary impact will likely be on the asbestos litigation, it should also have a major impact on the talc-mesothelioma docket in New York.
The product at issue in Nemeth was a form of cosmetic talc commonly used for feminine hygiene. The genesis of the talc-mesothelioma docket is the contention, supported only by a handful of plaintiff-testifying experts, that talc contains asbestos fibers as a contaminant. Many industrial hygienists and microscopists dispute this claim—the debate boils down to the criteria used to distinguish asbestos “fibers” from broken pieces of rock that are not harmful. Sean Fitzgerald, using what one court called a “mish-mash” of methodologies, claims he can identify fibers in talc, whereas the published literature and defense experts do not support the notion that these images are actually asbestos fibers at all. Some courts have already excluded the testimony of Fitzgerald and other plaintiff experts contending that these fragments of rock represent fibers. The talc-mesothelioma litigation is in its early stages, and plaintiffs are not meeting with widespread success so far.
Interestingly, the debate about whether talc even contains asbestos in the first place is not in the Nemeth opinion or the briefing. Apparently, the problems with Fitzgerald’s “finding” of talc were not part of the appeal, which focused on the viability of plaintiff’s substantial factor causation evidence. Nemeth certainly undercuts the talc docket in New York by discrediting and rejecting plaintiffs’ causation approach. The opinion does not, however, address the more fundamental flaw in that litigation: cosmetic talc does not contain asbestos in any significant quantities, if at all. Plaintiff expert opinions to the contrary are unscientific and inadmissible. If the New York talc docket continues in some form post-Nemeth, defendants should address this even more substantial flaw in the experts’ testimony. The Court of Appeals may at some point find itself ruling again in a talc case to correct the experts’ basic claim that cosmetic talc contains asbestos.
Nemeth is a significant opinion for both talc and asbestos litigation, and will presumably impact the benzene docket as well. The New York Court of Appeals is a highly influential court, and its decisions often have an impact well beyond the state. Defendants should add Nemeth to the arsenal of cases rejecting any exposure-type opinions and continue the work to eliminate that type of testimony from asbestos litigation. Defendants will also need to be aware of, and respond appropriately to, efforts similar to Fitzpatrick’s to present exaggerated exposure studies to get around rulings rejecting the any exposure theory. Regrettably, the Nemeth opinion did not contain much detail on the flaws in the glove box test and why it is irrelevant to an actual exposure. That omission may open the door to further glove box and similar efforts. Defense counsel will need to focus on probing depositions of the experts and thoughtful briefing to continue to require plaintiffs to meaningfully and scientifically assess exposures, dose, and causation.
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