$7 Million Verdict in New York's First Asbestos-in-Talc Trial for a Woman Who Died of Mesothelioma at 76, Reversed on Appeal

Joan Robusto used Desert Flower Dusting Powder every day through the 1960s and 1970s. The powder, sold by Shulton, was made from talc distributed by Whittaker Clark & Daniels, a New York company founded in 1890 that supplied cosmetic talc for much of the twentieth century. Decades after she stopped using it, Mrs. Robusto was diagnosed with mesothelioma, the asbestos cancer. She died at 76, before her case could be tried, and her daughter Claudine DiScala carried it on as executrix in the coordinated New York City Asbestos Litigation docket in Manhattan.

By the time of trial, Whittaker Clark & Daniels was the only defendant left. The case was tried before Justice Martin Shulman from October 14 to November 24, 2015, and Levy Konigsberg tried it for the family. The plaintiff's evidence was that the talc Whittaker distributed to Shulton was contaminated with asbestos and that Mrs. Robusto inhaled it every time she powdered herself. Whittaker argued that the experts could not say the powder was regularly contaminated, could not identify any contaminated lot, and could not explain how a consumer would inhale enough fibers from a dusting powder to cause cancer.

On November 24, 2015, the jury unanimously found that Whittaker's talc was a substantial cause of Mrs. Robusto's mesothelioma and awarded $7 million. It was the first verdict in New York State in a case involving asbestos-contaminated cosmetic talcum powder used as a personal hygiene product, and it came a year and a half before the same firm's $16.5 million Nemeth verdict over the same product. The trial court denied Whittaker's motion for judgment notwithstanding the verdict on June 19, 2017, and judgment was entered on August 29, 2017.

The verdict did not survive appeal. On June 20, 2019, in Matter of New York City Asbestos Litigation (DiScala), 173 AD3d 573, a unanimous panel of the Appellate Division, First Department reversed the judgment, granted Whittaker's motion and dismissed the complaint against it. The court held that the plaintiff had failed to adduce evidence that Mrs. Robusto was exposed to sufficient levels of asbestos in the defendant's talc to cause mesothelioma. Her causation expert, the panel wrote, had merely opined that her exposure to unspecified detectable or significant levels of asbestos in the powder caused the disease. New York does not require exact mathematical quantification of exposure, the court acknowledged, citing its 2017 Juni decision, but the evidence here failed to establish any level sufficient to cause the illness.

The decision was an early application of the causation rule that the Court of Appeals would make definitive three years later in Nemeth, and it left the Robusto family with nothing from the verdict. Whittaker Clark & Daniels, facing hundreds of talc claims, filed for Chapter 11 protection in 2023.