N.Y. high court overturns $16.5 million asbestos verdict

A view of the New York State Court of Appeals building is seen in Albany
A view of the New York State Court of Appeals building is seen in Albany, New York October 12, 2011. REUTERS/Hans Pennink
  • Court finds insufficient evidence that asbestos exposure caused a woman's terminal cancer
  • Dissent says the ruling sets "impossible" standard for plaintiffs

(Reuters) - New York state’s highest court on Tuesday overturned a $16.5 million jury verdict in a case brought by a woman who later died of cancer and her husband, saying that there was insufficient evidence to prove that a talc-based cosmetic powder caused her illness.

Florence Nemeth and her husband sued several defendants in 2014, claiming that Florence, who died in 2016, developed mesothelioma after using asbestos-contaminated products throughout her life.

After all other defendants reached settlements in the case, a trial proceeded against Whittaker, Clark & Daniels Inc, which supplied talc for Shulton Inc's Desert Flower cosmetic powder. Florence Nemeth used the powder daily from 1960 to 1971, according to the lawsuit.

A state court jury awarded a $16.5 million verdict in 2017. The jury assigned 50% of the fault to Whittaker and 50% of the fault to Shulton Inc, which was no longer a participant in the trial.

Whittaker, which was found liable for $8.25 million in damages, appealed.

Before the case reached the Court of Appeals, an earlier appeal reduced the damages to $2.9 million.

The verdict was based on testimony from two plaintiffs' experts, one of whom tested the level of asbestos in a vintage sample of the Desert Flower cosmetic powder and another who testified that Nemeth’s daily use of the powder from 1960 until 1971 could have caused her cancer.

In a 5-1 decision, the Court of Appeals found that the verdict was based on insufficient evidence.

The plaintiffs' expert who tested the Desert Powder sample did not precisely calculate the amount of asbestos in the powder or the amount that could be inhaled by someone using the powder on a daily basis, Judge Michael Garcia wrote for the majority.

Without that information, the test could not have shown that Nemeth was actually exposed to asbestos at a level known to cause mesothelioma, the court ruled.

In dissent, Judge Jenny Rivera said the evidence was sufficient to persuade a reasonable jury. The evidence used in the trial was a "tried-and-true" expert opinion and was properly presented to the jury as part of a "battle of the experts," Rivera wrote.

"The majority has essentially adopted an impossible standard for plaintiffs," Rivera wrote.

Attorneys for both parties did not immediately reply to a request for comment.

The case is Nemeth v. Brenntag North America Inc, Court of Appeals for the State of New York, No. 24

For Nemeth: Seth Dymond of Belluck & Fox

For Whittaker, Clark & Daniels: Bryce Friedman of Simpson Thacher

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