Court: Supreme Court of New York, New York County (NYCAL)

In this asbestos action, plaintiff Jennifer Peganis alleged take-home exposure to asbestos from laundering her husband’s work clothing. Defendant Donald Durham Company moved to dismiss the action on the basis that plaintiff failed to establish causation. Defendant Vanderbilt Minerals LLC jointed Durham’s motion to dismiss, arguing that Vanderbilt’s only connection to the action is due to its talc being a component ingredient in Durham’s water putty.

The moving defendants relied upon three experts: (1) Brittani D. McNamee, P.G., Ph.D., who affirmed that no asbestiform amphiboles were found in samples of Durham’s putty; (2) Dr. Scott Donson, a certified industrial hygienist and toxicologist who performed an air sampling test of Durham’s putty that revealed no asbestos fibers (though some samples did contain amphibole cleavage fragments); and (3) Dr. Davil Weill, a pulmonologist who opined that cleavage fragments are “naturally occurring and do not meet the true definition of asbestos fibers” and that there is “no animal or human data that implicates these fragments as a cause of disease.”

In opposition, plaintiff offered the opinions of four experts: (1) Dr. James S. Webber, Ph.D., a toxicologist who opined that cleavage fragments are indistinguishable from asbestiform fibers and that Vanderbilt talc contained asbestos; (2) Dr., Steven P. Compton, Ph.D., who concluded after conducted a 2023 air sample study that agitation of Durham’s water putty released asbestos fibers in greater quantities than ambient levels; and (3) Kenneth S. Garza and (4) Dr. Mark Ellis Ginsburg, both industrial hygienist that opined that, based on simulation studies involving workers performing the same type of work as plaintiff’s husband when working with Durham putty, there are substantial asbestos fiber inhalation levels and that the handling of asbestos contaminated clothing for laundering also creates substantial airborne fiber concentration levels.

Ultimately, the court noted that the opinions offered by the defense experts are in “sharp contrast” with the findings of plaintiff’s experts, which “creates clear issues of fact precluding summary judgment.” As such, the court denied Durham and Vanderbilt’s motion to dismiss.

Lastly, in addition to joining Durham’s motion to dismiss, Vanderbilt also argued that plaintiff’s punitive damages claims were improperly pled and unfounded. In support of this argument, Vanderbilt asserted that it relied on studies ensuring its product was safe and “swiftly responded to any controversy regarding asbestos.” Vanderbilt further argued that it was not responsible for the manufacturing, packaging, and the placement of warning labels on Durham putty. Here too, the court denied Vanderbilt’s motion, noting that “Vanderbilt has not offered any evidence that dispels with certainty questions of fact regarding their level of recklessness or wanton disregarding asbestos in its talc.”

Read the full decision here.