Gordon Rees Scully Mansukhani’s New York Toxic Tort Team, led by Virginia Squitieri and Erik DiMarco, obtained a significant victory resulting in a complete dismissal for its cosmetic talc client. The appeal was briefed by Appellate Practice Group Co-Chair Jacob C. Cohn, and Mohammad M. Haque, who ably argued the appeal.
The plaintiff, a lifelong Texas resident, alleged that her peritoneal mesothelioma was solely caused by her alleged use of cosmetic talc products while living in Texas and during her occasional trips to New York as a flight attendant.
GRSM sought summary judgment in the trial court on the principal ground that, because the plaintiff was a litigation tourist with no substantial connection to New York, under New York’s choice of law analysis, Texas law must be applied because Texas had the greatest interest in the plaintiff’s claims. Because Texas law required the plaintiff to adduce epidemiological evidence demonstrating that the alleged exposure to asbestos from the product at issue more than doubled the risk of disease and the plaintiff had no such evidence, her claims could not survive summary judgment. GRSM had also argued that summary judgment was warranted under New York law given that the plaintiff’s experts and the underlying support for their opinions were identical to what was rejected by the Court of Appeals in Nemeth[1] and the First Department in Olson.[2] The trial court denied GRSM’s motion in its entirety.
On appeal, GRSM argued that the trial court ignored the controlling factors pertaining to New York’s choice of law analysis (and, alternatively, that the plaintiff’s proofs were insufficient even if New York law were applied). The plaintiff responded by arguing that there was no conflict in law and, contrary to repeated Texas Supreme Court precedents, Texas law did not in fact require epidemiological evidence showing a doubling the risk of disease. The plaintiff further contended that her periodic stop-overs in New York, coupled with the fact that the defendant maintains its principal place of business in New York, sufficed to demonstrate that New York has a greater interest in applying its own laws.
The New York Appellate Division, First Department, unanimously reversed, holding that the trial court’s decision to not apply Texas law was legal error and that the defendant was entitled to summary judgment because there was no epidemiological evidence supporting an alleged doubling of the risk of contracting mesothelioma from exposure to its talc products.[3] On the issue of choice of law, the First Department fully agreed that occasional, transient presence in New York was insufficient to justify applying New York law, emphasizing that “when a foreign resident’s exposure to a toxin occurs in foreign states, New York’s connection to the action is tenuous at best,” given that “her use of the product over the course of decades was overwhelmingly in Texas.”
Importantly, the First Department’s decision represents the first in which a New York appellate court has undertaken a choice of law analysis in a cosmetic talc case. This decision is of particular importance for those defendants with offices or principal places of business in New York. NYCAL has seen an explosion of “litigation tourism” involving out-of-state claimants, many of whom have never visited New York. This decision provides substantial guidance to New York trial courts that the law of a plaintiff’s home state should be applied over New York law where, as here, New York’s interest and connections to cases involving claimants exposed in other states “is tenuous at best," even if the defendant is incorporate or headquartered in New York.
[1] Nemeth v. Brenntag N. Am., 38 N.Y.3d 336, 362, n. 17 (2022)
[2] Matter of New York City Asbestos Litig. (Olson), 207 A.D.3d 415 (1st Dept 2022)
[3] In re New York City Asbestos Litig. (English), No. 190346/18, 2024 WL 2279081, at *1 (1st Dept 2024)