Can A Retailer Be Held Responsible for a Customer’s Malignant Mesothelioma?

It doesn’t take long after being diagnosed with malignant mesothelioma for victims to find out that their fatal illness was entirely preventable. The aggressive form of cancer is caused by exposure to asbestos, a mineral that has long been known to be carcinogenic. Those who choose to pursue legal action are told that they can file claims almost any entity that was part of the supply chain that led to their exposure. A case heard in New York shows that even a retailer that sold the product may be compelled to defend themselves against charges of negligence.

Woman Blames Mesothelioma Diagnosis on Asbestos in Talc Products

The mesothelioma lawsuit was filed by Vanessa Milan-Leal on behalf of her late mother, Elizabeth Milan, who died of the disease in 2018. In addition to naming asbestos distributor Whittaker, Clark and Daniels, talc product manufacturer Johnson & Johnson, and others, the suit named Lot Less, a retailer from whom Mrs. Milan had purchased Johnson & Johnson talcum powder.

In response to the mesothelioma claim against them, Lot Less filed a motion for summary judgment. They argued that the victim’s family had failed to demonstrate that the product had contained asbestos or that it was ever contaminated. They also argued that the plaintiffs had not proven negligence, had not established that Lot Less had breached express and implied warranties, and had not identified their role in her illness or in a fraudulent conspiracy. They asked for the case against them to be dismissed because they believed that retailers could not be held responsible for the actions of the manufacturers whose products they sold.

Judge Rules Against Retailer in Mesothelioma Case

In handing down his decision against Lot Less, Justice Adam Silvera of the Supreme Court of the State of New York noted that the retailer had been wrong in its assertion that a retailer could not be found negligent or strictly liable for goods it did not produce, writing that, “It is well settled law that strict liability may be imposed on retailers of defective products because retailers are in a position to influence manufacturers to improve the safety of products.” 

He also noted that in New York, mesothelioma victims are “not required to show the precise cause of their damages, but only to show facts and conditions from which defendant’s liability may be reasonably inferred.” The case against the retailer will go on for a jury to decide.