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In re New York City Asbestos Litigation

Supreme Court, New York County

November 26, 2013

In Re New York City Asbestos Litigation
v.
Brookfield Properties Corp., et al., Defendants. Lawrence Bernard AND MARILYN BERNARD, AS CO-EXECUTORS OF THE ESTATE OF SHELLEY BERNARD, Plaintiff, Lori Konopka-Sauer AND RICHARD KONOPKA, AS EXECUTORS OF THE ESTATE OF KAREN TEDRICK, Plaintiff,
v.
Colgate-palmolive Company, Defendant. Arlene Feinberg AND JACOB FEINBERG, Plaintiff,
v.
Colgate-palmolive Co., et al., Defendants.

Unpublished Opinion

Levy Phillips & Konigsberg, LLP (Plaintiffs Bernard & Tedrick).

Seeger Weiss, LLP (Plaintiff Feinberg).

Quinn Emanuel Urquhart & Sullivan, LLP (Defendant Colgate-Palmolive Co.).

HON. MARTIN SHULMAN, J.S.C.

In these three product liability actions, [1] Plaintiffs claim they contracted mesothelioma from asbestos exposure through their historic use of Cashmere Bouquet dusting powder, a talc powder product Defendant, Colgate-Palmolive Company ("C-P" or "Defendant") manufactured and sold ("talc powder" or "product"). Unlike many products formulated with asbestos material for use in an occupational setting, this talc powder, sold for personal consumer use, was never formulated to be used as an asbestos-containing product.

On November 11, 2011, Defendant filed an in limine motion to preclude Plaintiffs' proffered testing experts, Drs. James R. Millette ("Dr. Millette") and Ronald Gordon from giving testimony based on bulk sampling studies they respectively conducted on certain product exemplars in which they purportedly detected asbestos contamination [2] or, alternatively, for a Frye hearing. C-P essentially contended that Dr. Millette's 2009 bulk sampling studies did not comport with a generally accepted scientific methodology, thus, his proffered expert testimony would lack any scientific basis to satisfy a critical element in proving general/specific causation in each case. [3]

In particular, Defendant pointed out that in Dr. Millette's seven reports, this expert claimed to have used the U.S. Environmental Protection Agency's Test Method: Method for the Determination of Asbestos in Bulk Building Materials (July 1993)("EPA method") and acknowledged finding no asbestos in any of the seven samples using polarized light microscopy ("PLM"). When Dr. Millette resorted to transmission electron microscopy ("TEM"), this expert reported trace numbers of alleged asbestiform fibers in four of the samples. In rendering these findings, C-P contended Millette ran afoul of certain established criteria to confirm the presence of asbestos in bulk materials including talc. Defendants further argued that these criteria adopted in the scientific community, as evidenced in peer-reviewed articles as well as pursuant to the EPA method, mandate both a minimum fiber population requirement (i.e., at least five fibers [*2] in the sample count) and a fiber size having a mean aspect ratio (the ratio of length to width of a particle) of 20:1 for fibers longer than 5 microns. More pointedly, Defendant charged Dr. Millette with ignoring the fiber population requirement endorsed in his own peer reviewed article, A Standard TEM Procedure for Identification and Quantitation of Asbestiform Minerals in Talc, Microscope (1990) 38 at p. 463 ("The detection of five or more asbestiform minerals of one variety in an analysis constitutes a quantifiable level of detection.")(Frye Exhibit 9). In opposition, Plaintiffs found flaws in the talc testing reports of Dr. Richard Lee, Defendant's expert and generally viewed the dueling expert viewpoints as to the tested samples [4] to be a disputed issue of material fact for a jury to resolve.

On July 24, 2012, after hearing extensive argument on C-P's testing expert preclusion motion, this court granted Defendant's motion to the extent of directing a Frye hearing to determine the admissibility of Dr. Millette's product contamination opinion. Because this potential ruling could be outcome-determinative, this court stayed all further motion practice including C-P's then ready-to-be-filed motions for summary judgment.

Thereafter, Plaintiffs filed a motion to renew and for reconsideration of this court's July 24, 2012 order granting a Frye hearing. In its April 4, 2013 bench decision, this court denied Plaintiffs' motion and the Frye hearing was then held on July 31, August 1, and November 7, 2013.

During the direct and cross-examination of Dr. Millette over a two day period, here is what Defendant and this court learned from his sworn testimony:

Dr. Millette utilized the criteria set forth in the EPA method when microscopically analyzing the samples using PLM and after applying the bundle morphology criteria, reported an inconclusive finding regarding a fiber in one sample (Frye Exhibit 17) which this court discounted (Frye Hearing Tr. 346:11-16), resulting in negative PLM findings for asbestiform fibers in the seven exemplars;

When this expert witness microscopically analyzed these samples using TEM, he acknowledged for the very first time that he applied the criteria adopted by

ASTM International [5] for air sampling tests designated D6281: Standard Test Method for Airborne Asbestos Concentration in Ambient and Indoor Atmospheres as Determined by Transmission Electron Microscopy Direct [*3] Transfer (TEM) [6] ("D6281" as Frye Exhibit H) but with certain modifications for bulk sample testing of talc;

To date, there is no generally accepted method for confirming the presence of asbestos in talc through TEM testing (see Frye Hearing Tr. 19:21-22 and 184:19-25), and D6281 is not the generally accepted method for confirming the presence of asbestos contamination in talc;

For counting asbestos fibers, D6281 presumes the existence of asbestos in the air samples being tested as did Dr. Millette in his modified application of same to his fiber count(s) of the talc samples (Frye Hearing Tr. 307:3-11);

For purposes of identification, D6281 cannot differentiate between individual asbestos fibers and non-asbestiform cleavage fragments (see also, §1.1.2 in the Scope section of D6281, supra, and §1.1 in the Scope section of the ISO Method, supra ["The method cannot discriminate between individual fibres of the asbestos and non-asbestos analogues of the same amphibole material..."]), and there is no generally accepted method in the scientific community to differentiate an asbestos amphibole from a non-asbestos amphibole on the basis of a single fiber (Frye Hearing Tr. 175:13-24);

In performing a TEM analysis on the talc samples to report alleged trace asbestos contamination in three out of the seven exemplars (i.e., one fiber in one sample, three fibers in a second one and a set of two different fiber types in a third sample), Dr. Millette adopted the D6281 use of probability fiber distribution table using the Poisson process (see Table A6.1 of Frye Exhibit H, at p. 29) [7] in lieu of the historic, albeit statistically significant five-fiber population criterion; and [*4] in this vein, never found 5 or even 4 alleged asbestiform fibers of the same amphibole mineral in any of the talc powder samples (Frye Hearing Tr. 286:19-26);

Dr. Millette also chose not to apply the EPA method's asbestos fiber identification criteria (i.e., a dimensional aspect ratio of 20:1 to positively identify an asbestiform fiber as opposed to a non-asbestiform cleavage fragment), and conceded not performing a more in-depth SAED (selected area electron diffraction) study to accurately classify any trace fiber as an amphibole mineral particle as opposed to a talc particle (Frye Hearing Tr. 285:21-25 through 286:1-18; see also, Table A4.2 in the D6281 at p. 24); and

Illustratively, as noted in Frye Exhibit 13, in Sample No. UO654, where Dr. Millette found one presumed asbestiform fiber, this expert witness extrapolated this finding to calculate a total concentration of 286 million asbestos fibers in an ounce of talc powder (Frye Hearing Tr. 307:3-14).

At the close of Plaintiffs' case, this court preliminarily concluded that Plaintiffs made a prima facie showing that their testing expert's opinion purports to comply with the analytical methodology accepted in the scientific community for bulk sample testing but reserved its decision on C-P's Frye motion to preclude to await the testimony of Dr. Richard Lee, Defendant's testing expert ("Dr. Lee").

On November 7, 2013, after a full day of questioning by the parties' attorneys, this court gleaned the ...


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