USE OF PRODUCT WAS “OVERWHELMINGLY IN TEXAS”
After the New York County Supreme Court denied defendants’ motion to dismiss the personal injury case (premised upon “toxin exposure”), an appeal ensued.
On its review, the Appellate Division, First Department, noted that when a non-resident’s exposure to a toxin happens outside of its boundaries, New York’s “connection to the action ‘is tenuous at best.’”
While a flight attendant claimed to have applied talcum powder while on layovers in New York, the AD1 noted that her use was “overwhelmingly in Texas,” where she lived. (She apparently couldn’t recall buying the product while in New York.)
As a result, Texas law applied, and she thus needed to show that the product’s use “doubled” her risk of exposure to harm. And in this instance, because she failed to provide “any data quantifying her exposure or data showing at what level of exposure the risk of disease would double,” the AD1 thought that court below should have granted the dismissal request and reversed the underlying determination.
Was that worth the shot and powder?
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DECISION