Young v. Avon Prods., Inc. (In re N.Y.C. Asbestos Litig.)

2019 NY Slip Op 30940(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATION

KIM YOUNG and J.C. YOUNG, Plaintiffs, v. AVON PRODUCTS, INC., et al., Defendants.

INDEX NO. 190383/2016

SUPREME COURT OF THE STATE OF NEW YORK — NEW YORK COUNTY PART 13

April 8, 2019

NYSCEF DOC. NO. 603

PRESENT: MANUEL J. MENDEZ Justice

MOTION DATE 04/03/2019

MOTION SEQ. NO. 007

MOTION CAL. NO. __________

Upon a reading of the foregoing cited papers, it is Ordered that defendant Avon Products, Inc.'s (hereinafter "Avon") motion pursuant to CPLR §3212, for summary judgment to dismiss plaintiffs' claims and all cross-claims asserted against it, is granted to the extent of dismissing plaintiffs' fifth and twelfth causes of action for conspiracy and loss of consortium. The remainder of the relief sought in this motion, is denied.

Plaintiff, Kim Young, was diagnosed with peritoneal mesothelioma. She is 61 years old. Mrs. Young alleges her exposure - as relevant to this motion - is from Avon talc powder products. Plaintiffs allege that Mrs. Young's use of Avon's talc powder products during the relevant period - from about 1961 through 1999 - caused her peritoneal mesothelioma. Mrs. Young was deposed in this action over the course of two days on March 16 and 17, 2017. Her de bene esse deposition was conducted on July 24, 2018 (Mot. McAtee Aff., Exh. 1 and pp. Woodard Aff., Exhs. B and C).

Mrs. Young identified several different talc products used by her and her family on a daily basis. Mrs. Young specifically identified three Avon talc products, "Unforgettable," "Bird of Paradise" and "Skin So Soft." She testified that her mother used Avon products daily and purchased them for the family. Mrs. Young used the same products as her mother and remembers using them from when she was about four or five years old in 1961 through her mother's death in 1999 (Opp. Woodard Aff. Exh. B, pgs. 133-136, 200 and 206-207). She testified that she used Avon's "Unforgettable" talc from about 1961 through 1999; "Bird of Paradise" talc from about 1970 through 1974; and "Skin So Soft" talc from about 1974 through 1999 (Opp. Woodard Aff. Exh. B, pgs. 155, 167-168, 182, 192-193, 200, 202- 203).

Mrs. Young testified that she applied the Avon talcum powder over her entire body including her arms, torso and legs. She used Avon talc almost daily starting at age four or five. Mrs. Young testified that starting at age ten or eleven, she used Avon talc at least daily after bathing, with an additional use before going out at night with her friends (Opp. Woodard Aff. Exh. B, pgs. 161-163, 190, 212 and Opp. Woodard Aff. Exh. A, pg. 318). She applied the Avon talc by shaking the bottle on her hands and applying the talc to her body, or at times by using a powder puff (Opp. Woodard Aff., Exh. B, pgs. 157-161 and 190). She testified that there were round containers with a powder puff that was used to press the talc powder on to her arms, and that you could see the dust and smell it (Opp. Woodard Aff., Exh. D, pg. 19). Mrs. Young testified that when she used the Avon talc, it created a "dusty environment" that she would have to clean up, and that when she was a little girl, she would write in it. She testified that she could see the dust in the air and she would breathe it in (Opp. Woodard Aff., Exh. B, pgs. 318-320). She testified that the "dust" was the "talc powder," that if a shaker was used, she could see the residue that was left, and used the residue "to put it whereever needed" (Opp. Woodard Aff., Exh. D, pg. 19).

Plaintiffs commenced this action on December 19, 2016 to recover for injuries resulting from Mrs. Young's exposure to asbestos from talc in the Avon powder products she used, "Unforgettable," "Bird of Paradise," and "Skin so Soft" (Mot. McAtee Aff., Exh. 2). On January 23, 2017, Avon served a "Verified Answer to Plaintiffs' Verified Complaint With Affirmative Defenses"(NYSCEF Doc. #7).

Avon now moves for summary judgment pursuant to CPLR §3212 to dismiss plaintiffs' complaint and all cross-claims asserted against it. It is argued that plaintiffs cannot establish causation because the Avon talc powder used by Ms. Young was not contaminated with asbestos, warranting summary judgment. Avon alternatively argues that plaintiff's fifth cause of action for conspiracy and collective liability/concert of action, eleventh cause of action for punitive damages, and twelfth cause of action for loss of spousal consortium, should also be dismissed as failing to state any sustainable claims.

To prevail on a motion for summary judgment the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact (Klein v City of New York, 81 N.Y. 2d 833, 652 N.Y.S. 2d 723 [1996]). It is only after the burden of proof is met that the burden switches to the nonmoving party to rebut that prima facie showing, by producing contrary evidence in admissible form, sufficient to require a trial of material factual issues (Amatulli v Delhi Constr. Corp., 77 N.Y. 2d 525, 569 N.Y.S. 2d 337 [1999]). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party by giving the non-moving party the benefit of all reasonable inferences that can be drawn from the evidence (SSBS Realty Corp. v Public Service Mut. Ins. Co., 253 A.D. 2d 583, 677 N.Y.S. 2d 136 [1^st Dept. 1998]).

Avon's argument that plaintiffs are not expected to present any admissible evidence of Mrs. Young's exposure to asbestos does not establish entitlement to summary judgment.

A defendant cannot obtain summary judgment simply by "pointing to gaps in plaintiffs' proof" (Ricci v. A.O. Smith Water Products, 143 A.D. 3d 516, 38 N.Y.S. 3d 797 [1^st Dept. 2016] and Koulermos v A.O. Smith Water Prods., 137 A.D. 3d 575, 27 N.Y.S. 3d 157 [1^st Dept. 2016]). Regarding asbestos, a defendant must make a prima facie showing that its product could not have contributed to the causation of Plaintiff's illness (Comeau v W. R. Grace & Co.- Conn. (Matter of New York City Asbestos Litig.), 216 AD2d 79, 628 NYS2d 72 [1st Dept. 1995] citing to Reid v. Georgia - Pacific Corp., 212 A.D.2d 462, 622 N.Y.S. 2d 946 [1^st Dept., 1995], DiSalvo v. A.O. Smith Water Products (In re New York City Asbestos Litigation), 123 A.D. 3d 498, 1 N.Y.S. 3d 20 [1^st Dept. 2014] and O'Connor v. Aerco Intl., Inc., 152 A.D. 3d 841, 57 N.Y.S. 3d 766 [3^rd Dept., 2017]). Defendants must unequivocally establish that Mrs. Young either was not exposed to asbestos from their products, or that the levels of asbestos she was exposed to was not sufficient to contribute to the development of mesothelioma (Berensmann v. 3M Company (Matter of New York City Asbestos Litig.),122 A.D. 3d 520, 997 N.Y.S. 2d 381 [1^st Dept., 2014]).

Avon argues that plaintiffs have no evidence, and that their experts, Dr. William Longo and Dr. Jacqueline Moline, cannot raise an issue of fact that Mrs. Young was exposed to asbestos through contaminated Avon talc powder products. They also argue that plaintiffs' experts cannot raise an issue of fact on whether Mrs. Young was exposed to sufficient levels of asbestos contamination from the use of Avon products during the relevant periods of about 1961 to 1999.These arguments amount to "pointing to gaps in plaintiffs' proof" and are not a basis to obtain summary judgment.

Avon claims that there is no evidence prior to 1971 to establish that the talc sold to Avon was potentially contaminated with asbestos. Avon alleges that starting in 1972, it began implementing a stringent three step quality control procedure to ensure raw talc used in Avon products was asbestos free. Avon's quality control procedure: (1) required that the supplier provide rigorous testing to certify no asbestos was detected under the J4-1 method; (2) Avon double checked each shipment using infrared spectrometry to screen for asbestiform amphibole; and (3) Avon regularly audited raw talc shipments at independent laboratories using the J4-1 test method.

Avon argues that its own testing and records of formulations establish that for the remaining period of Mrs. Young's alleged exposure, 1971 through 1999, there was no asbestos contamination in its talc products. Avon claims that there is no admissible non-speculative evidence that Mrs. Young was exposed to asbestos through the use of its product.

Avon relies on the affidavit of its Vice President Lisa Gallo, she worked in the reseach and development department of the company since January of 1994. Ms. Gallo relies on her review and investigation of documents retained in Avon's possession. Ms. Gallo states that Avon manufactured and sold "Unforgettable" perfumed talc between 1965 and 1979, "Bird of Paradise" perfumed talc between 1970 and 1979, and "Skin so Soft" satin talc between 1971 and 2001. Ms. Gallo refers to the "Raw Ingredient Specifications" annexed to the motion papers which identify the ingredients, approved suppliers of the ingredients (ie cosmetic talc), and the results of mandatory testing performed by the suppliers of the ingredients (see Mot. McAtee Aff., Exhs. 48-56). Ms. Gallo also claims that in 1976 Avon adopted an industry trade association - the Cosmetics, Toiletries and Fragrance Association (hereinafter "CTFA") - testing procedure using the J4-1 method for detecting asbestos in cosmetic talc.

Avon claims that there is no asbestos contamination from their products during the period relevant to Mrs. Young's exposure because: (1) the talc was sourced from "asbestos free" mines, (2) there were internal tests to ensure the lack of contamination and (3) both government and independent tests confirmed the product was asbestos free. It is Avon's contention that Mrs. Young was not exposed to asbestos through use of Avon products, and that it did not cause her peritoneal mesothelioma.

Avon argues that summary judgment is warranted under Parker v Mobil Oil Corp., 7 NY3d 434, 824 NYS2d 584, 857 NE2d 1114 [2006], Cornell...