Alfred J.  Sargente

NYCAL Presiding Judge Reverses Special Master and Rules Plaintiff Not Entitled to Trial Preference

February 2017Article

In a case of apparent first impression, Judge Peter Moulton, the Presiding Judge in the New York City Asbestos Litigation (NYCAL) reversed the Special Master’s recommendation and ordered that a cosmetic talc case be removed from the in extremis docket. Judge Moulton held that “the lack of a defendant connected to plaintiff’s New York city exposure or the lack of identification of any such entity is fatal under the facts presented here.” Those facts included: (1) after 10 months of investigation, plaintiff had not sued or identified any entity alleged to have responsibility for the oven at issue, and (2) plaintiff did not testify that the oven at issue was labeled as having asbestos content. In granting Defendants’ motion, the Judge was careful to limit his ruling to “the specific and unusual facts of this case.”

Plaintiff filed a  lawsuit in NYCAL claiming his mesothelioma was caused by exposure to asbestos from various personal talc products; all of which he was allegedly exposed to outside of New York City.  However, he also testified that he was exposed to asbestos from unidentified ovens used to bake resistors while visiting his fathers’ workplace in Queens, NY (NYC) on five to ten occasions when he was between the ages of eight and ten years old.

Defendants Unilever United States, Inc. d/b/a Brut and Whittaker Clark & Daniels, joined by American International Industries, argued: (1) plaintiff failed to identify a manufacturer, supplier or brand of oven, or sue a defendant who may be responsible for the oven; (2) plaintiff failed to demonstrate that the oven contained asbestos, (3) plaintiff’s testimony was “manufactured in order to obtain in extremis status and was a “sham” and a “farce,” and (4) plaintiff’s own medical causation expert opined that the only cause of plaintiff’s mesothelioma was his exposure to cosmetic talcs.

Plaintiff opposed the Defendants’ motion arguing: (1) the determination as to whether a case should be included in the in extremis docket was based on his connection to New York City and not to a particular defendant, (2) plaintiff’s expert report focused solely on talc because of the short deadlines in asbestos cases; and (3) plaintiff’s investigation is ongoing and plaintiff’s expert report can be supplemented at a later date.  Plaintiff further argued that if the court removed the case from the in extremis docket, defendants should be precluded from claiming that plaintiff was exposed to asbestos from ovens at trial.

In reaching his decision, Judge Moulton distinguished his January 5, 2017 decision in Trumbull v. Adience, Inc. et al., (Index Number 190084/16) upholding the Special Master’s recommendation to include a case in the in extremis docket from the specific and unusual facts in Fogel. The Judge noted that, in Fogel, “even after 10 months of investigation, plaintiff has not sued or identified any entity alleged to have responsibility for the oven, nor did plaintiff testify that the oven at issue was labeled as having asbestos content.” The Judge noted that “once a defendant has been sued or once an entity connected to a product had been identified, it can be ascertained whether that entity made an asbestos-containing product during the relevant time period, thereby anchoring the action to a New York City asbestos exposure.” The Judge also noted that “[e]ven the failure to identify the brand of product is not fatal where a defendant, who has made an asbestos-containing product, has been identified.” Thus, the Judge found plaintiff’s testimony “did not clearly anchor his alleged asbestos exposure to New York City.”

The Judge also declined to issue an order precluding defendants from introducing evidence of plaintiff’s exposure to asbestos from ovens at issue at trial.

This case is a significant victory for defendants in NYCAL insofar as plaintiffs seeking a trial preference are now required to identify an allegedly asbestos-containing product, or an entity allegedly responsible for such product, that is connected to plaintiff’s New York City exposure.