Elliott Katsnelson et ano., Plaintiffs, v. Amchem Products, Inc. et al., Defendants. (2026)

NYSCEF doc nos. 100-111, 151, 157-215, 219, and 220 were read on this motion for summary judgment.

Motion by defendant Merck & Co. Inc. pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross claims as asserted against it granted to the extent that all cross claims are dismissed as asserted against it and otherwise denied.

BACKGROUND

Plaintiff Elliott Katsnelson commenced this New York City Asbestos Litigation action on March 24, 2025. His spouse, Marina Katsnelson, also brought claims through the supplemental summons and complaint filed on April 9, 2025.

Plaintiffs allege that Mr. Katsnelson developed mesothelioma due to asbestos exposure from the products of defendants. As is relevant here, plaintiffs allege that Mr. Katsnelson was exposed to asbestos from his use of Dr. Scholl's foot powder (hereinafter Dr. Scholl's) from 1985 to 1999. There is no dispute that, in 1979, Dr. Scholl's was acquired by Schering-Plough Corp., and, in 2009, by defendant Merck & Co. Inc. (hereinafter Merck). Merck "acknowledges responsibility for Scholl's brand products manufactured prior to October 2014 and liabilities associated therewith" (affirmation in support, exhibit 1 [Merck interrogatory responses] at 9).

Merck now moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross claims as asserted against it. On June 17, 2026, the court held oral argument, reserved judgment on the branch of the motion seeking to dismiss the punitive damages claim, dismissed all cross claims as asserted against Merck, and denied the balance of the motion, citing its decision in Linde v Charles B. Chrystal Co., Inc. (88 Misc 3d 1235[A], 2026 NY Slip Op 50338 [U], [Sup Ct, NY County 2026, Schumacher, J.]). As such, the only remaining branch of the motion concerns the punitive damages claim.

Merck argues in its moving papers, in sum and substance, that it had no reason to believe Dr. Scholl's could be contaminated with toxic levels of asbestos, nor was cosmetic talc regarded by the Food and Drug Administration (hereinafter FDA) as pathogenic during the relevant period. Merck annexes two July 28, 1975 letters in support of the motion from its predecessor entity to a talc supplier (affirmation in support, exhibit G at 2, 5). The letters request "assurance" by means of a "letter of certification" that certain talc products are "Asbestos free" (sic) (id.). The letters also request in the alternative a different talc which the supplier might assure is free of asbestos (see id.).

Merck then annexes an August 4, 1975 response to one of the two letters (id. at 4). The responding letter "confirm[s]" that the sender checked certain talc for "possible asbestos fiber contamination" through "a periodic test" using "X-Ray Diffraction, Continuous Scanning Method" on "material coming from the mine locations" resulting in "no presence of asbestos form mineral" (sic) (id.). A similar exchange also occurred on October 12, 1973 between these same entities (id. at 6).

There is no response annexed to the moving papers as to the other 1975 letter.

Merck also annexes a May 1, 2000 letter from a different talc supplier to its predecessor entity certifying, among other things, that "all talc products produced" at a certain location "do not contain detectable quantities of asbestos or asbestiform minerals when analyzed via X-ray Diffraction (XRD), Polarized Light Microscopy (PLM), or Scanning Electron Microscopy with Energy Dispersive X-ray (SEM/EDX)" (id. at 3).

Merck further annexes a June 6, 1985 memorandum on Department of Health and Human Services letterhead from the Quantitative Risk Assessment Committee to the Office of Toxicological Sciences (id., exhibit H). The letter concludes, as is relevant here, that there "appears to be less than [.00000001] added lifetime risk [of mesothelioma in humans due to asbestos fibers in talc] and possibly several orders of magnitude lower risk still" (id. at 10).

Finally, Merck annexes a letter denying a November 8, 1983 petition requesting that the FDA require that cosmetic talc be labeled with an asbestos warning statement (id., exhibit I).

Plaintiffs oppose.

DISCUSSION

"The standard for summary judgment is well established. On a motion for summary judgment, all facts are considered in the light most favorable to the nonmoving party. The movant has the initial burden to make a prima facie showing of entitlement to judgment as a matter of law. If the movant fails to make the showing, the motion must be denied regardless of the sufficiency of the opposing papers. If the showing is made, the burden shifts to the nonmoving party to establish the existence of a triable issue of fact." (Najera-Ordonez v 260 Partners L.P., ---NYS3d---, 2026 NY Slip Op 04558 [1st Dept 2026] [internal citations and quotation marks omitted].)

"Even where there is gross negligence, punitive damages are awarded only in singularly rare cases such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public" (Arana v A.O. Smith Water Prods. Co., 210 AD3d 517, 518 [1st Dept 2022]; Maffei v A.O. Smith Water Prods. Co., 210 AD3d 537, 537 [1st Dept 2022]).

"The function of a court on a summary judgment motion is issue finding, not issue determination . . . . [T]he award of punitive damages and the amount thereof are questions within the sound province of the trier of fact, which must decide whether the wrongdoing is intentional or deliberate, has circumstances of aggravation or outrage, has a fraudulent or evil motive, or is in such conscious disregard of the rights of another that it is deemed willful and wanton. . . . Malice can arise from the wanton disregard of obligations, whether owed to the public or to an individual." (Ross v Louise Wise Svcs., Inc., 28 AD3d 272, 292 [1st Dept 2006, Tom, J.P., concurring], mod 8 NY3d 478 [2007] [internal citations and quotation marks omitted].)

In Ross, the Appellate Division, First Department affirmed the denial (Kapnick, J.) of a defendant's summary judgment motion in an adoption case, holding, in relevant part, that, "[o]n the record before us, a trier of fact could conclude that defendant's conduct in concealing material information without regard to potentially disastrous consequences for the [victim] . . . amounts to such wanton dishonesty as to imply a criminal indifference to civil obligations" (28 AD3d at 292-293 [citation and internal quotation marks omitted]).

The Court of Appeals affirmed as modified, limiting recovery to compensatory damages as it could not "conclude from the record that the initial concealment was motivated by malice so as to warrant punitive damages, or that these damages would deter future reprehensible conduct" (8 NY3d at 491). The Court of Appeals emphasized that standards change over time. Conduct that might not be considered appropriate or lawful today could have been commonplace and accepted in the past. As such, a record could show, as it ultimately did in Ross, that a defendant's motivations for a past course of conduct were not "malicious or vindictive" when considered contemporaneously (id. at 490). Yet that record, in order to eliminate all issues of fact, requires a high degree of specificity as to the time, context, and substance of the relevant conduct.

These aspects of the relevant conduct were not in dispute in Ross. In fact, the adoption agency admitted to its conduct. Nonetheless, the Court of Appeals rejected an anachronistic approach, finding that the norm at the time was for an agency not to inform prospective parents of certain mental health aspects of a child's family history. The context in which this occurred was the early 1960s to early 1980s, when

"the belief among the social workers and psychiatrists who worked for the Agency was that, in the development of a child, nurture played a far more significant role than nature. For that reason, the policy of the Agency was not to disclose certain information about a birth family's medical history if the doctors were unsure whether the factors were hereditary." (Id. at 485.)

In 1983, after the relevant period in Ross, a statute began requiring disclosing such histories (see id. at 490, 491).

Here, as the record is scant concerning the relevant conduct of Merck, the court finds that Merck has failed to establish prima facie entitlement to summary judgment dismissing the punitive damages cause of action. The evidence submitted in support of the motion fails to establish that Merck, by its predecessor, did in fact use any particular type of talc in Dr. Scholl's. While there are two letters annexed purporting to certify that certain lines of talc were free of asbestos, there is no evidence submitted that this talc was in fact used or not in Dr. Scholl's. Further, there is no reply to one of the 1975 letters submitted as to whether the talc of that supplier could be so certified, and there is no showing as to whether that talc was ever certified as such, or used, or not. There is also nothing submitted in support of the motion as to the purported efficacy of the testing methods used by the talc suppliers.

Moreover, the 1983 denial of the petition and the 1985 memorandum submitted fail to establish a lack of malice, or willful or wanton conduct, on the part of Merck. There is no showing that these documents had any effect on whether Merck, by its predecessor, ultimately used a particular talc in Dr. Scholl's, or decided whether to affix a warning label to Dr. Scholl's, or, indeed, on any corporate act. There is no affidavit of a corporate representative submitted, and the bald assertions of counsel are without evidentiary value (see Tower Ins. Co. of NY v Zaroom, 145 AD3d 556, 557 [1st Dept 2016], citing Zuckerman v City of NY, 49 NY2d 557, 563 [1980]).

Further, there is nothing submitted establishing, in the approximately 15 years since the subject memorandum during which Mr. Katsnelson used Dr. Scholl's, whether industry knowledge, available testing methods, or similar material scientific predicates had changed such that Merck, by its predecessor, might have had reason to believe Dr. Scholl's could contain toxic amounts of asbestos and whether that pathogeny presented such risk to the public that to disregard it might be considered wanton, willful, or malicious.

In the absence of meaningful moving evidence on these points, the branch of the motion seeking dismissal of the punitive damages cause of action must be denied without regard to the sufficiency of the opposition papers.

Although the court need not consider the sufficiency of the opposition papers, upon review, the court notes that several of the exhibits submitted in opposition concern the relative safety of Dr. Scholl's. The court regards the submissions, which include, among other things, the memoranda and formula sheets submitted (affirmation in opp, exhibits 3, 4, 9, 26, 28, 29, and 31), as arguably being sufficient to raise genuine issues of material fact, under the circumstances, concerning the manner in which Merck weighed the pathogenic risks involved with putting Dr. Scholl's into the stream of commerce.

CONCLUSION

Accordingly, it is

ORDERED that the motion by defendant Merck & Co. Inc. pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross claims as asserted against it granted to the extent that it is

ORDERED that all cross claims asserted against Merck & Co. Inc. are dismissed; and it is further

ORDERED that the motion is otherwise denied; and it is further

ORDERED that, within five days of entry, plaintiffs shall serve a copy of this order with

notice of entry on Merck & Co. Inc.; and it is further

ORDERED that this decision and order is limited to the finding of issues of fact at summary judgment, and it does not preclude or limit the assigned trial judge from making any admissibility determinations of any expert opinions intended to be offered at trial; and it is further

ORDERED that all parties shall appear in Part 13 Jury Selection, Room 452, 60 Centre Street, New York, NY 10007 on September 29, 2026, at 9:30 a.m., for trial.

The foregoing together with the June 17, 2026 oral argument transcript constitutes the decision and order of the court.

DATE 8/13/2026

ERIC SCHUMACHER, J.S.C.

Eric Schumacher, J.