Tippin v 3M Co.

2024 NY Slip Op 31150(U)

April 3, 2024

Supreme Court, New York County

Docket Number: Index No. 190062/2021

Judge: Adam Silvera

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 1332 

INDEX NO. 190062/2021 

RECEIVED NYSCEF: 04/04/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. ADAM SILVERA 

Justice 

-------X 

COREY G. TIPPIN, 

Plaintiff, 

- V -

3M COMPANY, ALCAT, INCORPORATED, AMERICAN 

INTERNATIONAL INDUSTRIES, AVON PRODUCTS, 

INC.,BOURJOIS, LTD, BRENNTAG NORTH AMERICA, 

INC, BRENNTAG SPECIALTIES, LLC,BRISTOL-MYERS 

SQUIBB COMPANY, CHANEL, INC.,CHATTEM, 

INC.,COLGATE-PALMOLIVE COMPANY, COTY 

INC.,GLAMOUR INDUSTRIES CO., JOHNSON & 

JOHNSON, JOHNSON & JOHNSON CONSUMER 

INC.,KERR CORPORATION, KRYOLAN CORPORATION, 

L'OREAL USA, INC.,MAX FACTOR CO., 

INC.,MAYBELLINE, INC.,PFIZER INC.,R.T. VANDERBILT 

HOLDING COMPANY, INC.,REVLON, INC.,THE 

NESLEMUR COMPANY, UNION CARBIDE 

CORPORATION, VANDERBILT MINERALS, 

LLC,WHITTAKER CLARK & DANIELS, INC.,YVES SAINT 

LAURENT AMERICA, INC.,BLOCK DRUG COMPANY, INC. 

IND. AND AS SUCCESSOR-IN-INTEREST TO THE GOLD 

BOND STERILIZING POWDER COMPANY, A/KIA THE 

GOLD BOND COMPANY, BLOCK DRUG CORPORATION 

IND. AND AS SUCCESSOR-IN-INTEREST TO THE GOLD 

BOND STERILIZING POWDER COMPANY, A/KIA THE 

GOLD BOND COMPANY, JANSSEN PHARMACEUTICALS, 

INC.,INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST 

TO JOHNSON & JOHNSON SUBSIDIARIES NAMED 

JOHNSON & JOHNSON CONSUMER INC.,JOHNSON & 

JOHNSON HOLDCO (NA) INC.,F/KIA JOHNSON & 

JOHNSON CONSUMER INC.,KENVUE 

INC.,INDIVIDUALLY AND AS SUCCESSOR-ININTEREST 

TO JOHNSON & JOHNSON CONSUMER INC.,LTL 

MANAGEMENT LLC 

Defendant. 

-------------------·--------------------X 

PART 

INDEX NO. 190062/2021 

MOTION DATE 01/23/2024 

MOTION SEQ. NO. 019 

DECISION + ORDER ON 

MOTION 

13 

The following e-filed documents, listed by NYSCEF document number (Motion 019) 1092, 1093, 1094, 

1095, 1096, 1097, 1098, 1099, 1100, 1101, 1102, 1103, 1104, 1105, 1106, 1107, 1108, 1109, 1110, 

1111, 1112, 1113, 1114, 1115, 1116, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125, 1126, 

1127, 1186, 1187, 1188, 1189, 1190, 1191, 1192, 1193, 1194, 1195, 1196, 1197, 1198, 1199, 1200, 

1201, 1202, 1203, 1204, 1205, 1206, 1207, 1208, 1209, 1210, 1211, 1212, 1213, 1214, 1215, 1216, 

1217, 1218, 1219, 1220, 1221, 1222, 1223, 1224, 1225, 1226, 1227, 1228, 1229, 1230, 1231, 1232, 

1233, 1234, 1235, 1236, 1237, 1238, 1239, 1240, 1241, 1242, 1243, 1244, 1245, 1246, 1247, 1248, 

190062/2021 TIPPIN, COREY G. vs. 3M COMPANY 

Motion No. 019 

1 of 4 

Page 1 of4 

[* 1]
NYSCEF DOC. NO. 1332 

INDEX NO. 190062/2021 

RECEIVED NYSCEF: 04/04/2024 

1249, 1250, 1251, 1252, 1253, 1254, 1255, 1256, 1257, 1258, 1259, 1260, 1261, 1262, 1263, 1264, 

1265, 1266, 1267, 1268, 1269, 1270, 1271, 1272, 1273, 1274, 1275, 1276, 1277, 1278, 1279, 1280, 

1281, 1282, 1283, 1284, 1285, 1286, 1287, 1288, 1289, 1290, 1291, 1292, 1293, 1294, 1295, 1296, 

1297, 1298, 1299, 1300, 1301, 1302, 1303, 1304, 1305, 1306, 1307, 1308, 1309, 1310, 1311, 1312, 

1313, 1314, 1315, 1316, 1317, 1318, 1319, 1320, 1321, 1322, 1323, 1324 

were read on this motion to/for JUDGMENT - SUMMARY 

Upon the foregoing documents, it is ordered that the instant motion for summary 

judgment pursuant to CPLR 3212 is denied in accordance with the decision below. 

Here, defendants Johnson & Johnson ("J&J"), Johnson & Johnson Consumer Inc. 

("JJCI"), and LTL Management LLC ("LTL") make a motion for summary judgment seeking to 

dismiss all claims against it on the basis that plaintiff Corey Tippin ("Mr. Tippin") has not 

established causation pursuant to Nemeth v Brenntag N. Am., 38 NY3d 336, 342-43 (2022). 

Moving defendants proffer expert testimony disputing plaintiffs theories of causation regarding 

cosmetic talc. See Johnson & Johnson, Johnson & Johnson Consumer Inc., and L TL 

Management LLC's Memorandum of Law In Support of Summary Judgment, p. 9. 

In opposition, plaintiff offers multiple contradicting expert opinions regarding general 

causation as well as specific talc simulation studies with "estimates or ranges of the amount of 

asbestos inhaled during the application of talcum powder." See Plaintiffs Memorandum of Law 

In Opposition to Johnson & Johnson, Johnson & Johnson Consumer Inc. and L TL Management, 

LLC's Motions for Summary Judgment, p. 42-43. 

The Court notes that summary judgment is a drastic remedy and should only be granted if 

the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v 

Prospect Hosp., 68 NY2d 320, 324 (1986). "The proponent of a summary judgment motion must 

make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient 

evidence to eliminate any material issues of fact from the case". Winegrad v New York 

190062/2021 TIPPIN, COREY G. vs. 3M COMPANY 

Motion No. 019 

2 of 4 

Page 2 of 4 

[* 2]
NYSCEF DOC. NO. 1332 

INDEX NO. 190062/2021 

RECEIVED NYSCEF: 04/04/2024 

University Medical Center, 64 NY2d 851, 853 (1985). Despite the sufficiency of the opposing 

papers, the failure to make such a showing requires denial of the motion. See id. at 853. 

Additionally, summary judgment motions should be denied if the opposing party presents 

admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v 

City of New York, 49 NY2d 557,560 (1980). "In determining whether summary judgment is 

appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving 

party and should not pass on issues of credibility." Garcia vJC. Duggan, Inc., 180 AD2d 579, 

580 (1 st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1 st Dep't 1990). 

The court's role is "issue-finding, rather than issue-determination". Sillman v Twentieth CenturyFox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations omitted). As such, summary 

judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. 

See Ugarriza v Schmieder, 46 NY2d 471, 475-476 (1979). Furthermore, the Appellate Division, 

First Department has held that on a motion for summary judgment, it is moving defendant's 

burden "to unequivocally establish that its product could not have contributed to the causation of 

plaintiff's injury". Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 (1 st Dep't 1995). 

The appropriate standard at summary judgment for moving defendants J&J, JJCI, and 

L TL can be found in Dyer v Amchem Products Inc., 207 AD3d 408, 409 (1st Dep't 2022). In 

Dyer, defendants were granted summary judgment not by "simply argu[ing] that plaintiff could 

not affirmatively prove causation" but by "affirmatively prov[ing], as a matter of law, that there 

was no causation." Id. The Appellate Division, First Department, recently affirmed this Court's 

decision in Sason v Dykes Lumber Co., Inc., et. al., 2023 NY Slip Op 05796 (1st Dep't 2023), 

stating that "the parties' competing causation evidence constituted the classic 'battle of the 

experts"' sufficient to raise a question of fact, and to preclude summary judgment. 

190062/2021 TIPPIN, COREY G. vs. 3M COMPANY 

Motion No. 019 

3 of 4 

Page 3 of 4 

[* 3]
NYSCEF DOC. NO. 1332 

INDEX NO. 190062/2021 

RECEIVED NYSCEF: 04/04/2024 

Here, moving defendants failed to meet their burden on a motion for summary judgment 

by affirmatively establishing that cosmetic talc from its products could not have caused Mr. 

Tippin's illness. Rather, moving defendants point to gaps in plaintiffs proof. Moreover, plaintiff 

has offered conflicting evidence. As such, plaintiff has raised sufficient issues of fact to preclude 

summary judgment and moving defendants have not met their burden as set forth by the 

Appellate Division in Reid and Dyer, supra. 

Accordingly, it is 

ORDERED that defendants J&J, JJCI, and LTL's motion for summary judgment is 

denied in its entirety; and it is further 

ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this 

Decision/Order with notice of entry. 

This constitutes the Decision/Order of the Court. 

4/3/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: § CASE DISPOSED 

GRANTED 0 DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

190062/2021 TIPPIN, COREY G. vs. 3M COMPANY 

Motion No. 019 

4 of 4 

ADAM SILVERA, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

Page 4 of 4 

[* 4]