$16.5 Million Desert Flower Talc Verdict, New York's First Cosmetic Talc Mesothelioma Win, Reversed by the Court of Appeals

From 1960 to 1971, Florence Nemeth used Desert Flower Dusting Powder every day, applying it in a small unventilated bathroom and cleaning up the residue afterward, a routine of about seven minutes. Desert Flower was made by Shulton, the maker of Old Spice, with talc supplied by Whittaker, Clark & Daniels. Decades later, in 2012, Mrs. Nemeth was diagnosed with peritoneal mesothelioma, a cancer of the abdominal lining caused by asbestos. She died on March 5, 2016, at 69, after a 40-month illness.

Her husband Francis sued in New York County in April 2014, in the coordinated New York City Asbestos Litigation docket. The complaint also alleged other possible exposures, including lawn products, home renovation materials and the laundering of clothes her son wore as an elevator repairman. Every defendant except Whittaker settled, and the case went to trial against the talc supplier alone. James M. Kramer, Robert Komitor and Nicholas E. Novack of Levy Konigsberg tried it over six weeks. Their geologist, Sean Fitzgerald, described a glove box test in which he agitated a vintage sample of Desert Flower inside a sealed chamber and counted 2.7 million asbestos fibers released, and their medical expert, Dr. Jacqueline Moline, told the jury that the powder was a substantial contributing factor in the cancer.

On April 7, 2017, the jury found Whittaker negligent for failing to warn of the asbestos in its talc and awarded $15 million to Mrs. Nemeth's estate for her pain and suffering and $1.5 million to her husband for loss of consortium, $16.5 million in all. It apportioned fault 50 percent to Whittaker and 50 percent to Shulton, leaving Whittaker responsible for $8.25 million. It was the first verdict in New York in a mesothelioma case built on cosmetic talc. After the trial court applied offsets for the settling defendants, the judgment against Whittaker came to $2,933,750.

On April 9, 2020, a divided Appellate Division, First Department affirmed the liability verdict, 3 to 1, holding that Fitzgerald's fiber counts, combined with the duration and frequency of Mrs. Nemeth's use, gave the jury a sound basis to find sufficient exposure. On the family's cross-appeal it corrected the offset calculation and raised the principal amount of the judgment to $3.3 million. Justice David Friedman dissented, arguing that neither expert had specified the level of exposure that would cause peritoneal mesothelioma or shown that Mrs. Nemeth had reached it.

The Court of Appeals agreed with the dissent. In Nemeth v. Brenntag North America, 38 NY3d 336, decided April 26, 2022, Judge Michael Garcia wrote for a four-judge majority that the glove box test measured how much asbestos the powder could release, not how much Mrs. Nemeth inhaled, and that Dr. Moline's testimony that her exposure was at levels shown in studies to raise mesothelioma rates was the kind of general comparison the court had rejected since Parker v. Mobil Oil in 2006. Because the proof of causation was insufficient as a matter of law, the court reversed and dismissed the complaint against Whittaker. Judge Jenny Rivera dissented alone, warning that the standard would deprive toxic tort plaintiffs of their day in court.

Nothing from the verdict stood. Within months, the First Department applied Nemeth to reverse Levy Konigsberg's $325 million Olson talc verdict against Johnson & Johnson, and the decision remains the governing statement of what New York plaintiffs must prove about dose in any asbestos or talc case.