New York Court Challenges Expert Testimony on Talcum Powder Asbestos Appeal:
Johnson & Johnson and its talc suppliers face more than 38,000 lawsuits claiming that its products led to mesothelioma, ovarian cancer, cervical cancer, and other chronic diseases. Recentinvestigations showed that Johnson & Johnson knew about asbestos contaminating its talc products for years, a mineral known to cause mesothelioma and other cancers. But defendants in these cases still get lucky when they appeal from time to time. And now, an April verdict from the New York Court of Appeals may make the burden of proof for expert testimony more difficult for plaintiffs in future cases.
The Original Verdict
In April of 2022, New York’s highest court overturned a multimillion-dollar verdict awarded by a jury to Florence Nemeth. Nemeth and her husband brought a lawsuit against several defendants when she developed peritoneal mesothelioma after using Desert Flower Dusting Powder for years. The plaintiffs sued Whittaker, Clark, and Daniels, Inc., the talcum powder supplier for the cosmetic powder manufacturer, along with several other parties. In the suit, Nemeth alleged that the talc products, contaminated with asbestos, caused her cancer. She later died.Many defendants settled, but the suit against Whittaker and another company continued to trial. A state court jury initially awarded Nemeth $16.5 million in 2017, finding two companies each 50% liable. One defendant stopped contesting the suit, leaving Whittaker the only defendant on appeal. Before the current case reached the New York Court of Appeals, an earlier appeal reduced the award against Whittaker to $2.9 million.
The Appeal & Expert Testimony
The original award rested on the testimony of two expert witnesses: one tested a vintage cosmetic powder for asbestos and the second testified that Nemeth’s daily use of the powder for more than a decade could have caused her cancer. The Court of Appeals held there was insufficient evidence to support the verdict, ruling five to one on the appeal.The expert didn’t precisely measure the amount of asbestos in the powder or the amount that a person could inhale when using the powder daily. As a result, the court found that the expert couldn’t have shown that Nemeth was exposed to enough asbestos to cause mesothelioma. In the dissent, Judge Jenny Rivera stated that “the majority has essentially adopted an impossible standard for plaintiffs” by reducing a verdict based on the weight rather than the sufficiency of the evidence. Judge Rivera reminded the court that “this Court has no authority to weigh the evidence.” But this case may still affect future asbestos-contaminated talc litigation.
You Need Skilled Legal Advice
If you or someone you love is facing a cancer diagnosis after using asbestos-contaminated talc, you need legal guidance. You may be entitled to file a lawsuit, and an experienced attorney can help. The Madeksho Law Firm has been fighting for clients in similar situations for years, and we can help you too. Call us at 1-888-910-6376 or contact us online. Your consultation is free, and you don’t pay anything unless we recover compensation on your behalf.
