September 19, 2018
On September 16, 2018, New York City Asbestos Litigation (“NYCAL”) Special Master Shelley Rossoff Olsen issued a recommendation in the Kim Young matter, overruling Avon’s objection on forum non conveniens grounds to the matter’s inclusion in the October 2017 In Extremis cluster. The majority of the plaintiff’s alleged exposure to asbestos occurred outside of New York; however, plaintiff testified that she used cosmetic talc products while she was in New York to perform with her college marching band.
Avon objected (through Liaison Counsel) in its June 5, 2017 written objections to the cluster. Avon argued that plaintiff claimed exposure to alleged asbestos-contaminated Avon cosmetic talc while residing in California, Pennsylvania, and Texas from the 1960s to 1990s. She never worked or purchased cosmetic talc products while in New York. Plaintiff testified that while she was a student at Villanova University in Pennsylvania, she was a member of the marching band and performed at a basketball tournament in New York that required her to stay overnight for six (6) to ten (10) nights. She claims she brought the cosmetic talc products from home and used them while staying at the hotel.
Avon cited the Special Master’s recommendation in the LoGuidice matter, dated April 16, 2015. In the LoGuidice matter, Special Master Olsen granted Colgate-Palmolive’s request that the LoGuidice matter be excluded from the October 2015 In Extremis cluster. Colgate relied on Golden v. Alliance Laundry Systems, where plaintiff alleged exposure to dust from briefly visiting other areas of a ship where others worked on pipe covering while docked in New York City for three (3) days. In Golden, Special Master Olsen found the quality (no first hand use of the asbestos-containing pipe covering) and the quantity (three (3) days) to be insufficient for inclusion in the cluster. Special Master Olsen cited Golden in her recommendation in LoGuidice, stating that she was equally unpersuaded: the probable after bath sprinkling of Colgate’s product on plaintiff over the course of a few days in a hotel room is an insufficient nexus to New York City for In Extremis purposes.
In her decision regarding the instant matter, Special Master Olsen found that plaintiff, Ms. Young, used Avon talc while visiting New York City anywhere from fourteen (14) to twenty-two (22) times, which is using talc twice a day for six (6) to ten (10) visits, plus one (1) visit with her parents to see a play. Avon argued that this amount of exposure in New York City does not provide a sufficient nexus to New York City, as Special Master Olsen recommended in LoGuidice. Avon concluded that the only differences between this case and LoGuidice were the amount of time each plaintiff spent visiting New York City and the purpose of their visits. Special Master Olsen determined that the purpose of a plaintiff’s visit in New York City does not have bearing on whether there is sufficient nexus for inclusion in an In Extremis cluster; however, the number of days spent, and the number of applications per day is relevant to the determination. Special Master Olsen ultimately concluded that using the product at issue fourteen (14) to twenty-two (22) times while in New York City provides sufficient nexus and denying Avon’s objection.
Analysis
This decision provides some clarification regarding the minimum requirements for a sufficient nexus to New York City by establishing that fourteen (14) to twenty-two (22) alleged uses of a product in New York City is sufficient nexus. On the other hand, the distinctions Special Master Olsen makes between her recommendation in LoGuidice and this matter are minor. As a result, and as the Special Master so much as acknowledged, there is a seemingly arbitrary line as to what establishes a sufficient nexus. In order to flesh out a more discernable rubric, further objections should be made when there are minimal exposures in New York.