On November 12, 2012, Florence Nemeth, then 67 years old, was diagnosed with peritoneal mesothelioma, a tumor of mesothelia cells in the abdomen. She died from the disease on March 5, 2016, before a lawsuit was brought on her behalf against several firms involved in the manufacture and distribution of a talc based product she had regularly utilized, Desert Flower Dusting Powder.
After a six week trial in Manhattan Supreme Court, the jury returned a verdict finding that defendant Whittaker Clark Daniels, Inc. (“WCD”) was negligent when it provided the talc contaminated with asbestos without an adequate warning and that its negligence was a substantial factor in causing injury to Ms. Nemeth (who died shortly before the trial began). Liability was apportioned 50% to WCD and 50% to two other defendants who had settled with plaintiff before trial.
The jury then returned a verdict awarding damages for (a) pre-death pain and suffering in the sum of $15,000,000 (40 months) and (b) loss of consortium in the sum of $1,500,000 (40 months). The trial judge reduced the damages to $6,000,000 for pain and suffering and $600,000 for loss of consortium,
In Nemeth v. Brenntag North America (1st Dept. 2020), the appellate court affirmed the trial judge’s reduction of damages and addressed issues concerning causation and liability apportionment.
Here are the injury details:
- chemotherapy over three year period that left decedent feeling terrible for several days after each session and which caused her hair to fall out and her teeth to break
- three surgeries to debulk the tumors to attempt to remove the cancer, involving drainage of as much as 20 pounds of fluid that had accumulated in the abdomen (the first one of which involved cutting open the decedent from her chest to her pelvis and the first two of which involved five day hospital admissions)
- pain, difficulty breathing and walking (due to fluid accumulation); breakthrough pain (severe pain that erupts while a patient is already medicated with a long-acting painkiller) during the decedent’s final three days
The defense argued that the pain and suffering award should be substantially reduced because Ms. Nemeth’s pain and suffering was not severe during much of the time from her diagnosis to her death. The 40 month period was substantially longer longer than other reported cases dealing with mesothelioma because victims of peritoneal mesothelioma tend to live longer than victims of pleural mesothelioma (which affects the lungs). The trial judge stated, “the pain and suffering [in pleural mesothelioma cases] is usually much more pronounced and expressed very early on in the outset of the disease.”
- Ms. Nemeth testified in a preserved videotaped deposition that over an 11-year period, from 1960-1971, she powdered her body with Desert Flower Dusting Powder every day after showering, using a powder puff for two minutes to apply it all over her body.
- Post-trial, the defense suggested a maximum pain and suffering award of $4,500,000 whereas the plaintiff suggested $10,000,000.
- Defendants Shulton, Inc. and Proctor & Gamble Co., Inc., its corporate parent, who manufactured the talc, are the defendants who settled the claims against them before trial (for $732,500) and against whom 50% of the liability was assigned. Accordingly, the judgment against WCD was reduced by one-half.
- Brenntag North America is WCD’s corporate parent.