TIPPIN v. Johnson & Johnson, et al., Defendants–Appellants. (2024)

Order, Supreme Court, New York County (Adam Silvera, J.), entered April 8, 2024, which denied the motion of defendants Johnson & Johnson, Johnson & Johnson Consumer, Inc., and LTL Management LLC (collectively, J & J) for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

J & J made a prima facie showing of entitlement to summary judgment by submitting epidemiological studies and expert testimony stating that plaintiff's use of its talcum powder could not have caused his peritoneal mesothelioma.  In response, plaintiff failed to raise an issue of fact, as he did not adduce evidence that he was exposed to levels of toxin in J & J's products sufficient to cause his illness (see Nemeth v. Brenntag N. Am., 38 N.Y.3d 336, 344–347, 173 N.Y.S.3d 511, 194 N.E.3d 266 [2022];  Matter of New York City Asbestos Litig., 207 A.D.3d 415–416, 171 N.Y.S.3d 503 [1st Dept. 2022], lv denied sub nom Olson v. Brenntag N. Am., Inc., 39 N.Y.3d 913, 189 N.Y.S.3d 452, 210 N.E.3d 947 [2023]).  Although plaintiff's epidemiology expert offered an estimate of plaintiff's lifetime exposure, the expert described the calculation as made only “by way of example” because “there are many variables that comprise an individual's total exposure.”  Furthermore, plaintiff's pulmonologist conceded that he did not calculate plaintiff's lifetime dose of exposure to asbestos through his use of J & J's product, and instead relied upon the epidemiology expert's example.  This evidence falls short of satisfying the requirement of causation.

In any event, even assuming plaintiff set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to have caused his mesothelioma, he failed to proffer evidence that his exposure levels exceeded that threshold dose.