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First Department Finds Texas Law Applies in Asbestos Case due to Flight Attendant’s Tenuous Connection to New York
May 24, 2024
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The Estate of Linda English brought suit in New York against defendant Colgate-Palmolive alleging English used the manufacturer’s talcum powder products contaminated by asbestos, which caused her to develop mesothelioma. The New York-based Colgate-Palmolive moved for summary judgment on choice-of-law grounds that Texas law should apply, as plaintiff was a Texas resident and purchased the product in Texas, and that plaintiff had not demonstrated causation in accordance with Texas’ standard. The Supreme Court denied Colgate-Palmolive’s motion, holding that New York law applied as plaintiff, a flight attendant, used the talcum powder frequently in New York and that Colgate-Palmolive failed to refute causation. Rasso v. Avon Products, Inc., No. 190346/2018 (N.Y. Sup. Ct. Sep. 11. 2023).
The First Department reversed, holding that New York’s connection to Plaintiff’s action was “tenuous at best.” In re New York City Asbestos Litig., 2024 NY Slip Op 02786 (N.Y. App. Div. May 21, 2024). The Court elaborated that while plaintiff used defendant’s talcum powder while in New York during layovers in the course of her work as a flight attendant, her use of the product was primarily in Texas, her domicile, and she did not recall ever purchasing talcum powder in New York.
The Court held that due to this tenuous connection, Texas law regarding “proof of specific causation in toxic tort cases” applied. Id. The Court further held that plaintiff, who could not show specific causation, failed to meet Texas’s standard for evidence in the form of epidemiological studies to show that the subject product “more than doubled a plaintiff’s risk of injury.” Id. citing Bostic v. Georgia-Pac. Corp., 439 S.W.3d 332 (Texas. 2014).
