Levy Konigsberg LLP Upholds $3,300,000 Million Verdict Against Whittaker Clark & Daniels, Inc. for Toxic Talcum Powder

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The New York Supreme Court, Appellate Division, First Department, affirmed the trial court's decision in Nemeth v. Brenntag North America, et al., denying the defendant's post-trial motions.

On April 9th, 2020 the New York Supreme Court, Appellate Division, First Department, affirmed the trial court's decision in Nemeth v. Brenntag North America, et al., Case No. 9765, New York County Index No. 190138/14, denying the defendant's post-trial motions.

The plaintiffs, Florence and Frank Nemeth of Lake Ronkonkoma, New York, sued several manufacturers and distributors of asbestos-containing products, including a distributor of talcum powder named Whittaker Clark & Daniels, Inc. ("WCD"), after Florence was diagnosed with mesothelioma following years of using talcum powder in a product called Desert Flower, the talc for which WCD had sourced from asbestos-containing mines.

Florence succumbed to the disease before trial, and was survived by her husband Frank and their two children and four grandchildren.

The plaintiffs won a jury verdict against WCD, and WCD appealed, arguing (among other things) that the Nemeths couldn't prove that WCD's asbestos-containing talcum powder caused Florence's mesothelioma.

A panel for the First Department rejected WCD's arguments, holding that "the trial record contains sufficient evidence, consistent with the Court of Appeals' reasoning in Parker v. Mobil Oil Corp. (7 NY3d 434 [2006]), to support the jury's verdict and conclusion that Nemeth was exposed to a sufficient quantity of asbestos to cause the disease."

Indeed, Plaintiffs' geologist and testing expert testified for the jury that a typical use of a cosmetic talc product would have released approximately 2.7 million individual asbestos fibers. This meant that over Florence's years of use, she was exposed to billions or trillions of asbestos fibers in her home's bathroom.

In reaching its decision, the appellate court clarified that a 2017 First Department decision, Matter of N.Y.C. Asbestos Litigation (Juni) (148 AD3d 233 [1st Dept 2017]) did not upend decades of New York law and practice regarding proof of causation in asbestos cases.

Finally, the appellate court recalculated a damages setoff, and accordingly increased the amount of plaintiffs' net verdict from $2,933,750 to $3,300,000.

"It is gratifying, after such a lengthy trial and appellate process to see the Appellate Court render such a well-reasoned and supported decision on behalf of our deserving client", said Robert Komitor, a partner at Levy Konigsberg. "Today's decision is important not just for vindicating the rights of a loyal talcum powder product user who was exposed to asbestos in a product that contained no warning, but for consumers everywhere hoping to get a full and fair opportunity to prove their case in court," said Renner Walker, a Levy Konigsberg attorney who litigated the appeal.

About Levy Konigsberg LLP

Levy Konigsberg LLP (LK) (https://www.levylaw.com) has established itself as one of the nation’s premier law firms featuring highly acclaimed trial lawyers who have won some of the nation’s largest jury verdicts. With over 30 years of experience, the firm prides itself on the accomplishments attained by its lawyers in high-stakes cases involving mesothelioma, lead poisoning, sex abuse, defective products, whistleblower law, and medical malpractice. LK has litigated and won precedent-setting cases and obtained highly-publicized rulings and judgments, including some of the highest awards for our clients in numerous areas of litigation.

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Jerome Block
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