New York Court of Appeals clarifies the requirements for demonstrating causation in toxic tort cases

New York


United States


In Nemeth v Brenntag N. Am., 2022 NY Slip Op 02769, the plaintiff's spouse used a commercial talcum powder daily for a period of more than ten years during the 1960s and early 1970s. Decades later, she developed mesothelioma and died as a result. The plaintiff brought an action alleging that the use of the cosmetic powder was a proximate cause of the deceased’s illness. A jury agreed and awarded damages. The majority of the Appellate Division modified the damages award, but otherwise upheld the judgment. The defendant appealed.


The majority of the Court of Appeals explained that, in the context of toxic tort cases, it is well-established that an expert opinion on causation must set forth:

  1. the plaintiff's exposure to a toxin;
  2. that the toxin is capable of causing the particular illness (general causation); and,
  3. that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).

Any method used by an expert to demonstrate causation must be generally accepted as reliable in the scientific community. The expert testimony must establish sufficient exposure to the toxin despite the fact that it is sometimes difficult, if not impossible, to do so.

The Court explained that the fact that asbestos has been linked to mesothelioma is not enough for a determination of liability against a particular defendant. A causation expert must still establish that the plaintiff was exposed to sufficient levels of the toxin from the defendant's products to have caused his disease.

Plaintiff did not establish causation

The majority of the New York Court of Appeals held that the plaintiff's proof of causation was insufficient as a matter of law because the plaintiff failed to prove that exposure to asbestos in the defendant's product was a proximate cause of the decedent's illness. Therefore, the majority of the Court reversed the lower court’s ruling and dismissed the complaint against the defendant.

May 30, 2022
Nemeth v Brenntag N. Am., 2022 NY Slip Op 02769