Landmark NY Court Decision Allows Family of Asbestos Cancer Victim to Continue Lawsuit against Manufacturer of Talcum Powder

NEW YORK, New York, February 22, 2012 - In a landmark decision issued today, the New York Supreme Court held that a federal statute does not block a plaintiff’s right to sue for her asbestos-related injury under New York law. The decision marks the first time that this issue has been decided in a state court, and is a monumental victory for similarly-situated plaintiffs who wish to bring an asbestos lawsuit in New York state courts.

The New York Supreme Court decided that the Federal Food, Drug, and Cosmetics Act ("the FDCA") cannot be interpreted to stop victims of an asbestos-related disease from suing a cosmetic manufacturer for failing to warn its customers of the dangers of asbestos associated with its product.

The plaintiff in the case, represented by Levy Phillips & Konigsberg, LLP ("LPK"), was a long-time user of Cashmere Bouquet, a cosmetic talcum powder product manufactured by the defendant, Colgate-Palmolive Co. The plaintiff began using Cashmere Bouquet in the 1950s, and continued using it over the next three decades. As a result, she developed peritoneal mesothelioma, and passed away in August 2010.

In court, Colgate argued that the FDCA preempts - or stops - plaintiffs from bringing a lawsuit against it under any state law. New York law allows a plaintiff to sue for a negligent company’s failure to warn its customers of dangers associated with its products. The FDCA, Colgate contended, contains a provision which would not allow plaintiffs to bring such a claim.

LPK partner Audrey Perlman Raphael, Esq., and associate attorney James Kramer, Esq., argued to the Court that the plaintiff began using the product long before the FDCA was ever passed into law. The LPK attorneys also pointed out that the federal law contains another specific provision which allows plaintiffs to sue for a company’s failure to warn under state common law.

The Court acknowledged that Colgate never provided warnings to its Cashmere Bouquet customers regarding the health hazards of asbestos for the decades that the plaintiff used the product. The Court also decided that the FDCA could not be applied retroactively to eliminate this plaintiff’s claims for the injuries she received during the time period she used Cashmere Bouquet.

The Court also looked at the language of the FDCA to find that it does not either expressly or impliedly prohibit the plaintiff from suing under New York law.

Finally, the Court decided that the FDA has never issued a formal statement on the safety of cosmetic talcum powder.

The Court’s decision permits the family of this LPK client to continue with their asbestos lawsuit, and allows them to see their day in court.

For over a quarter of a century, mesothelioma lawyers at Levy Phillips & Konigsberg, LLP, have been among the pioneers of asbestos litigation in America. The firm’s attorneys have been recognized as nationwide leaders in representing the rights of mesothelioma victims and their families. Their clients have received some of the largest mesothelioma compensation verdicts in the country.

For more information about this or other mesothelioma lawsuits, please contact Levy Phillips & Konigsberg, LLP, at 212-605-6200 or 1-800-MESO-LAW (1-800-637-6529), 24 hours a day, 7 days a week.

ATTENTION: Peritoneal mesothelioma has no known cure and often causes severe pain, suffering, and other types of damage, such as loss of consortium, and loss of income. Additionally, due to the exceedingly high cost of mesothelioma treatments, many families exhaust savings and accumulate financial debt in order to pay for the medical expenses of their family member.

Under the law of most states, pain and suffering from peritoneal mesothelioma may be compensated through the award of money damages, usually obtained with the help of experienced mesothelioma attorneys. In some states other types of damages may also be recovered.

Asbestos litigation affords mesothelioma victims the opportunity to receive financial compensation and hold accountable the companies that caused their asbestos exposure.

IMPORTANT: If you or your family member has been diagnosed with peritoneal mesothelioma, you should get in touch with a mesothelioma lawyer as early as possible to determine if you have a mesothelioma case and to:

Preserve your rights to bring a legal action against the responsible parties within the limited time frame allowed by law, known as statute of limitations;
Obtain maximum compensation in your case by being able to:
- Preserve evidence and establish facts of the asbestos exposure while the claimant is still alive and able to provide information;
- File and resolve a lawsuit against the responsible parties before they file for bankruptcy or, if they already have, to obtain compensation before their bankruptcy trust funds run out of money;
Expedite your case, as courts tend to give higher priority to peritoneal mesothelioma lawsuits where the claimant is still alive.

Find out whether you have a case by speaking to one of our experienced mesothelioma lawyers via our 24/7 toll-free hotline at 1-800-MESO-LAW (1-800-637-6529) or by submitting an email inquiry (see form above). Our attorneys will be quick to respond to you and happy to answer all of your questions.

NOTE: While our offices are located in the states of New York, New Jersey, and Georgia, many of our mesothelioma lawyers are licensed to practice law in a number of U.S. states and have the capability and extensive experience of representing mesothelioma clients throughout the United States.

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