Judge Laura A. Seigle, Case 22STCV04682 2022-12-06 Tentative Ruling

Judge: Laura A. Seigle, Case: 22STCV04682, Date: 2022-12-06 Tentative Ruling

Case Number: 22STCV04682 Hearing Date: December 6, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

OBJECTIONS

Defendant Ralphs Grocery Company (“Defendant” or “Ralphs”) objects to deposition transcripts attached to the Hunt Declaration. The objections are overruled, especially because Ralphs did not provide all of the relevant deposition testimony, as explained below.

SUMMARY JUDGMENT

Defendant moves for summary judgment on the ground that Plaintiff Joan Lee Beck cannot prove she obtained any asbestos-containing product from Defendant.

A defendant seeking summary judgment must “conclusively negate[] a necessary element of the plaintiff’s case, or . . . demonstrate[] that under no hypothesis is there a material issue of fact that requires the process of trial.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334.) To show that a plaintiff cannot establish an element of a cause of action, a defendant must make the initial showing “that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence – as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855.) A plaintiff’s deposition testimony that the plaintiff has no knowledge of any exposure to the defendant’s products may be sufficient to shift the burden to the plaintiff to demonstrate the existence of triable issues of fact. (McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1103-1104.) The plaintiff’s deposition testimony that he did not recall ever working with a product manufactured by the defendant may not be sufficient to shift the burden if the plaintiff is able to prove his case by another means. (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439.) “ ‘If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiff’s factually devoid discovery responses.’” (Id. at p. 1440.)

Defendant points to Plaintiff’s supplemental interrogatory response No. 18. (Motion at p. 10.) That response states “Plaintiff recalls purchasing the talcum products occasionally from Ralphs Grocery stores” and “Plaintiff recalls that she purchased the talc products through various sources and stores, including, but not limited to . . . Ralphs Grocery Company.” (Compendium, Ex. H at p. 4; Hunt Decl., Ex. E at p. 5.) This is conclusory and merely restates Plaintiff’s allegation that Ralphs sold “asbestos contaminated talc.” (See, e.g., First Amended Complaint, ¶¶ 6-7.)

Plaintiff is unable to testify or give a deposition in this case. (Compendium, Ex. G.) Plaintiff’s children, Brice Beck and Bruce Beck, did not have any information that Plaintiff purchased any product at issue from Defendant. (Undisputed Material Fact “UMF” 9, 10.) Plaintiff’s daughter, Lynn Lanham, testified that she does not have any personal knowledge that Plaintiff obtained any powder products from a Ralphs Grocery store and does not have any receipts from the purchase of any powder products. (Compendium, Ex. E at p. 149.) Defendant provides only a few pages from the deposition of another daughter, Cynthia Beck, and does not mention whether an attorney asked her about Plaintiff buying products from Ralphs. (Id. at Ex. F.) This evidence does not show that Plaintiff is unable to obtain evidence that she bought asbestos-containing products from Defendant, in particular via her daughter Cynthia Beck.

And, even if it were sufficient to shift the burden, Plaintiff showed the existence of disputed facts by filing a more complete copy of Cynthia Beck’s deposition testimony including pages that Defendant failed to provide. In those pages, Cynthia Beck testified her mother bought body powder from the grocery store, including Ralph’s. (Hunt Decl., Ex. A at pp. 18, 51)

Defendant also argues that even if some products were from Ralphs, Plaintiff cannot show that any particular product from Ralphs contained asbestos, citing to Berg v. Colgate-Palmolive Co. (2019) 42 Cal.App.5th 630. (Motion at p. 15.) In that case, the court affirmed a grant of summary judgment involving allegations of asbestos exposure from Mennen’s shave talc. The plaintiff had used four to six containers of the shave talc between 1959 and 1962. (Id. at p. 632.) The plaintiff’s expert stated the talc was sourced from Italy and North Carolina mines contaminated with asbestos, FDA tests in 1972 and 1976 showed the Mennen shave talc contained asbestos, and his tests of samples of Mennen shave talc revealed asbestos. (Id. at pp. 632-633.) The court held this fact pattern was different than the facts in Lyons v. Colgate-Palmolive Co. (2017) 16 Cal.App.5th 463 because the plaintiff in Lyon used the product regularly over 20 years, there was no evidence of other sources of asbestos, and the plaintiff’s expert concluded all Cashmere Boutique product contained significant concentrations of asbestos. (Id. at p. 636.) In Berg, the plaintiff used the shave talc for a much shorter time periods, and the plaintiff’s expert’s declaration did not support a conclusion that all or most of the Mennen shave talc containers sold from 1959-1962 contained asbestos. (Ibid.) Rather, the expert’s testing occurred decades after the plaintiff’s use and there was no evidence that the tested samples were from 1959-1962. (Ibid.) The evidence fell “far short of establishing that any containers of Mennen Shave Talc sold between 1959 and 1971 or 1962 contained asbestos, much less that it is more likely than not that the containers [the plaintiff] used contained asbestos.” (Id. at pp. 636-637.)

Here, Defendant did not include the types of evidence about testing submitted in Berg and Lyons. Also, this case is more like Lyons because there is evidence Plaintiff used powders every day for years. (See, e.g., Opposition at p. 8 and evidence cited therein.)

Defendant also argues that Plaintiff cannot prove that any “particular exposures were a substantial factor in causing her mesothelioma.” (Motion at p. 16.) Defendant argues that “Plaintiff can only speculate that she was exposed to asbestos-contaminated talc-based cosmetics or other powder allegedly bought from Ralphs, and that such use was a substantial, rather than trivial, factor in causing her mesothelioma.” (Motion at pp. 16-17.) This argument repeats the contention discussed above that that is no evidence Plaintiff bought products from Ralphs. Also, Defendant did not show that Plaintiff cannot prove, for example through an expert, that the products she used contained asbestos. Indeed, Plaintiff cites no evidence at all in support of this argument.

The motion for summary judgment is denied.

SUMMARY ADJUDICATION

Defendant also moves for summary adjudication on the fourth cause of action for intentional tort/intentional failure to warn/concealment. This cause of action alleges a violation of a duty under Civil Code sections 1708, 1709, and 1710. (FAC, ¶ 43.) The FAC alleges Defendant failed to label talc products with warnings, suppressed information about the danger of the products, suppressed medical and scientific data including certain medical reports, belonged to industry organizations that suppressed information, financially supported the Asbestos Textile institute Industrial Hygiene Foundation, disseminated false information about asbestos through industry organizations, and failed to give adequate information to Plaintiff’s doctors. (FAC, ¶ 44.)

Section 1708 states generally that a person is to abstain from injuring another person. That does not create a cause of action.

Sections 1709 and 1710 state that a person may be liable for damage caused by willful deceit, defined as including “[t]he suggestion, as a fact, of that which is not true, by one who does not believe it to be true,” [t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true,” “[t]he suppression of a fact, by one who is bound to disclose it, or who give information of other facts which are likely to mislead for want of communication of that fact,” and “[a] promise, made without any intention of performing it.”

Most of the vague and conclusory allegations in the fourth cause of action do not apply to a grocery store. This cause of action is obviously targeted at manufacturers that had scientific and medical information and belonged to industry groups investigating asbestos. Defendant argues there is no evidence supporting a claim for willful deceit because the products at issue were not Ralphs brand products and no Ralphs employee or officer made any misrepresentation to Plaintiff. (Motion at pp. 18-19; UMF 5, 12, 13.) This is sufficient to shift the burden. In opposition, Plaintiff does not dispute these facts, and does not address Defendant’s argument about the lack of evidence of willful deceit on the part of Ralphs.

Defendant also moves for summary adjudication of the punitive damages claim because there is no clear and convincing evidence that Ralphs acted with oppression, fraud, or malice in causing Plaintiff’s injury. (Motion at p. 19.) Defendant contends that Plaintiff has no evidence that any Ralphs employee or officer intended to harm or her mother or acted with a conscious disregard of her mother’s health or safety, citing evidence to that effect. (UMF 13, 14.) It is undisputed that Ralphs did not manufacture or label the products at issue, and Plaintiff does not have evidence that a Ralphs employee or officer made a misrepresentation to Plaintiff, intended to harm Plaintiff, or acted with a conscious disregard of Plaintiff’s health. This is sufficient to shift the burden. In opposition, Plaintiff does not present any evidence to show disputed facts regarding Ralphs acting with malice oppression or fraud toward Plaintiff.

The motion for summary adjudication is granted.

Therefore, summary judgment is DENIED. The motion for summary adjudication is GRANTED as to the fourth cause of action and the claim for punitive damages.

The moving party is to give notice.

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION

Defendant Pfizer Inc. moves for summary adjudication of Plaintiff Joan Lee Beck’s third and fourth causes of action and punitive damages claim. Plaintiff does not oppose adjudication of the third and fourth causes of action. Therefore, the court grants summary adjudication of the third and fourth causes of action.

Regarding the punitive damages claim, Defendant argues Plaintiff does not have clear and convincing evidence of oppression, fraud or malice by an officer, director, or managing agent of Pfizer.

When the motion targets a request for punitive damages, a higher standard of proof is at play. “Although the clear and convincing evidentiary standard is a stringent one, ‘it does not impose on a plaintiff the obligation to “prove” a case for punitive damages at summary judgment [or summary adjudication.’ [Citations.] Even so, ‘where the plaintiff’s ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.’ [Citation.]” (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1158-1159.) “Summary judgment or summary adjudication ‘ “ ‘on the issue of punitive damages is proper’ only ‘when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.’ ” ’. [Citation.]” (Id. at p. 1159.)

“ ‘[I]ntentionally marketing a defective product knowing that it might cause injury and death is ‘highly reprehensible.’ [Citation.]” (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 85.) Punitive damages may be available when a defendant knows the dangers of asbestos, took action to protect its own employees from the hazard, knew that its products were likely to pose a danger to users, and did not warn them. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.Ap.4th 1270, 1300.) Such evidence “was sufficient to show malice, that is, despicable conduct coupled with conscious disregard for the safety of others.” (Id. at pp. 1300-1301.) On the other hand, a defendant’s knowledge of trace amounts of asbestos in talc does not necessarily mean that the defendant knew the asbestos in talc “would cause of high probability of injury.” (McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853, 873.) There must be evidence of knowledge that exposure to talcum powder would cause mesothelioma. (Id. at p. 874.)

Defendant points to Plaintiff’s responses to interrogatory Nos. 8-10. (Undisputed Material Fact “UMF” 16.) These interrogatories asked Plaintiff to state all facts on which she claims punitive damages and identify witnesses and documents supporting the claims for punitive damages. Plaintiff responded that Defendant knew about the health risks of the talc and failed to provide safety information and warnings. (Compendium, Ex. C at pp. 9, 10.) Plaintiff stated that by the 1930s, Defendant should have been aware that asbestos-contaminated talc was dangerous. (Id. at p. 11.) Plaintiff referred generally to Defendant’s documents and depositions. (Id. at pp. 12, 13.) These responses are conclusory and restate the allegations of the complaint without any specific evidence concerning Defendant’s malice, fraud, or oppression.

Defendant also refers to the deposition testimony of Plaintiff’s children, who testified that Plaintiff had no communications with Pfizer and no knowledge that Pfizer intended to harm Plaintiff or acted with conscious disregard of her safety. Defendant’s evidence is sufficient to shift the burden because the discovery responses are factually devoid.

In opposition, Plaintiff argues that the references in the interrogatory responses to scientific studies going back to the 1930s, 1972 OSHA regulations, and state regulations and law are evidence that Pfizer knew or should have known its body powder products contained asbestos that could be dangerous. (Opposition at pp. 5-6.) But Plaintiff does not show that any of those studies, laws, or regulations specifically stated that body powder products made from talc could contain asbestos that was dangerous. The issue here is not whether there is evidence of public knowledge that asbestos was dangerous, but whether there is evidence of knowledge that the types of products like those sold by Defendant contained asbestos and were dangerous.

Plaintiff submits evidence that Defendant knew about the dangers of talc because it issued a technical report in 1967, it received a memorandum in 1972 that showed asbestos in the talc used to make Coty Emeraude products, and between 1972 and 1982, it found asbestos in the Italian talc used to make Coty Emeraude. (Opposition at pp. 10-11; Additional Undisputed Material Facts 12-17.) The copy of the 1967 technical report is so fuzzy it is impossible to read. (Hunt Decl., Ex. F.) The 1972 memo states, “TEM found a very occasional fiber which we suspect to be asbestos but the level of detection would be around 0.1% or less.” (Id., Ex. G.) Plaintiff does not present evidence about whether that level of detection is meaningful and does not present evidence that Pfizer made any product from the batch of asbestos tested in 1972. The 1973 letter is very fuzzy and difficult to read. (Id., Ex. I.) It does not clearly state that Pfizer found asbestos in the talc it used to make Coty Emeraude products. Indeed, the letter states that the talc tested “could be either a Vermont or an Italian talc,” and “could be from Vermont or Italy.” (Id. Ex. I at p. 2.) Thus the evidence is ambiguous about the source of the talc tested. Exhibit J is a 1973 memo about testing various types of talc and the results showing asbestos in the talc. Again it does not present evidence about whether that level of detection is meaningful and does not present evidence that Pfizer made any product from the asbestos tested in the 1973 memo. Exhibit K is a chart summarizing test results but there is no context for this chart. It apparently was prepared by an attorney. (Hunt Decl., Par. 12.) And none of these documents show that Pfizer was aware that asbestos in talc could cause mesothelioma.

These documents do not show by clear and convincing evidence that Pfizer knew its power products contained levels of asbestos likely to pose a danger to users and yet failed to warn users.

The motion for summary adjudication of the punitive damages claim is GRANTED.

The moving party is to give notice.

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiff
Joan Lee Beck alleges she was exposed to asbestos by using Cashmere Bouquet
talcum powder on a daily basis for years.
Defendant Colgate-Palmolive Company brought this summary judgment motion
on the ground Plaintiff cannot prove the talcum powder contained asbestos.

A. Objections

1. Plaintiff’s Objections

Nos.
1-6, 8, 10: Overruled.

Nos.
7, 9, 11, 12: Sustained.

Nos.
13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24:
The court did not rely on these exhibits.

2. Defendant’s Objections

Defendant’s
objections to the Bailey and Finkelstein declarations are overruled.

B. Summary Judgment

For each claim in the complaint,
the defendant moving for adjudication must satisfy the initial burden of proof by
showing that one or more elements of a cause of action cannot be established or
that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf
v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show
that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf,
supra, 128 Cal.App.4th at p. 1520.)

1. Talc
Cases

The parties rely on three
recent decisions affirming or reversing grants of summary judgment in cases
alleging the presence of asbestos in talc.
In Lyons v. Colgate-Palmolive Co. (2017) 16 Cal.App.5th 463, a
case involving Cashmere Bouquet talcum powder, the court reversed a grant of
summary judgment. The plaintiff used
Cashmere Bouquet regularly from the early 1950s to the early 1970s. (Id. at p. 465.) The talc came from Italy, Montana, and North
Carolina. (Ibid.) The plaintiff’s expert tested talc samples
from North Carolina, Montana and Italy and confirmed the presence of asbestos,
he and others found asbestos in Cashmere Bouquet, and he referred to numerous
scientific papers and documents supporting his conclusions. (Id. at pp. 466-467.) The defendant waived objections to the
expert’s declaration. (Id. at p.
468.) The court concluded that the
expert’s “evidence that talc from all three mines used in the manufacture of
Cashmere Bouquet contained asbestos, repeatedly found in multiple tests and
studies conducted before, during and after the 1950 to 1970 time period,
coupled with plaintiff’s use of the product over those 20 years, particularly
in the absence of evidence of any other source of the asbestos causing
plaintiff’s mesothelioma, creates more than an unsupported possibility” that
she was exposed to asbestos by her use of Cashmere Bouquet.” (Id. at p. 469.)

In Berg v. Colgate-Palmolive
Co. (2019) 42 Cal.App.5th 630, the court affirmed a grant of summary
judgment involving allegations of asbestos exposure from Mennen’s shave
talc. The plaintiff had used four to six
containers of the shave talc between 1959 and 1962. (Id. at p. 632.) The plaintiff’s expert stated the talc was
sourced from Italy and North Carolina mines contaminated with asbestos, FDA
tests in 1972 and 1976 showed the Mennen shave talc contained asbestos, and his
tests of samples of Mennen shave talc revealed asbestos. (Id. at pp. 632-633.) The court held this fact pattern was
different than the facts in Lyon because the plaintiff in Lyon
used the product regularly over 20 years, there was no evidence of other
sources of asbestos, and the plaintiff’s expert concluded all Cashmere Boutique
product contained significant concentrations of asbestos. (Id. at p. 636.) In Berg, the plaintiff used the shave
talc for a much shorter time periods, and the plaintiff’s expert’s declaration
did not support a conclusion that all or most of the Mennen shave talc
containers sold from 1959-1962 contained asbestos. (Ibid.) Rather, the expert’s testing occurred decades
after the plaintiff’s use and there was no evidence that the tested samples
were from 1959-1962. (Ibid.) The evidence fell “far short of establishing
that any containers of Mennen Shave Talc sold between 1959 and 1971 or 1962 contained
asbestos, much less that it is more likely than not that the containers [the
plaintiff] used contained asbestos.” (Id.
at pp. 636-637.)

In
Strobel v. Johnson & Johnson (2021) 70 Cal.App.5th 796, the court
reversed a grant of summary judgment in a case involving asbestos in Johnson
& Johnson’s baby powder. The
plaintiff used the baby powder his entire life from 1951 until 2014, totally at
least 338 containers. (Id. at p.
801.) He was not exposed to asbestos
from any other source. (Ibid.) The talc came from mines in Italy, Vermont,
and China. (Id. at p. 807.) The plaintiff’s experts tested talc from
Italy and Vermont and found asbestos. (Ibid.) The defense expert testified that Johnson
& Johnson’s process ensured asbestos-free talc. (Id. at p. 811.) The court concluded, “which of these
competing views to accept must be decided at trial” because this case was more
like Lyons than Berg. (Id.
at p. 811, 812.) There was long term use
of the baby powder by a plaintiff who was not exposed to any other source of
asbestos, with expert testimony reporting positive test results from the mines
used to source the talc. (Id. at
p. 815.) The plaintiff’s expert, like
the defense expert, relied on published materials from government agencies,
professional standard-setting groups, academic articles, and historical
testing. (Id. at pp.
822-823.) Those third-party documents
qualified “as source material that may be reasonably relied upon by those in
his field of expertise.” (Id. at
p. 825.) It was reasonable to infer that
asbestos was present throughout the entire exposure period. (Id. at p. 826.)

2. Defendant’s Evidence

Defendant cites evidence Plaintiff
used Cashmere Bouquet between the 1950s and 1980s. (Undisputed Material Fact “UMF” 2.) Between at least 1968 and 1975, she and her
family used Cashmere Bouquet daily. (UMF
5, 6.)

Defendant contends Plaintiff’s
discovery “responses are devoid of the most critical fact: that any of the [Cashmere Bouquet] product
actually used by Plaintiff actually contained asbestos.” (Motion at
p. 10, emphasis in original.) In support
of this assertion, Defendant relies on Plaintiff’s responses to
interrogatories. (UMF 15-18) These interrogatories asked Plaintiff to identify
all evidence supporting its various claims against Defendant and to produce
documents showing the products contained asbestos. (UMF 15-18.)
The responses state that Cashmere Bouquet was made with Italian talc,
and testing shows that Italian talc contained asbestos fibers. (Strunk Decl., Ex. A at pp. 3-4.) The
responses also refer to studies showing Cashmere Bouquet contained
asbestos. (Id. at p. 5.) These
responses are not factually devoid.

In addition, Defendant’s
expert Matthew Sanchez opines that Cashmere Bouquet did not contain asbestos
because the source mines did not contain asbestos. (Sanchez Decl. at p. 5.) The expert analyzed studies of the source mines,
reviewed epidemiological studies, and obtained and tested samples of Italian
talc. He concludes that “even assuming
that trace amounts of asbestos occur at times” in the source mines, no expert
could determine that any particular shipment of talc contained asbestos or that
any particular product made with the talc contained asbestos. (Id. at pp. 12-13.) He also reviewed product formulation and
product testing information, which he concludes shows only a single finding of possible
asbestos in a batch of talc intended for Cashmere Bouquet. (Id. at p. 15.) Also, Michael Burke who worked at Defendant
testifies that he is familiar with the historical documents concerning Cashmere
Bouquet product, which show that starting in the early 1970s, Colgate started
testing for asbestos and talc and required suppliers to certify the talc was
asbestos-free. (Burke Decl. at p. 3.)

Defense expert Jennifer
Sahmel testified that use of Cashmere Bouquet from the 1950s to mid-1970s would
not have resulted in any measurable exposure to asbestos to Plaintiff. (Sahmel Decl. at p. 14.)

This affirmative evidence
is sufficient to shift the burden to Plaintiff.

3. Plaintiff’s
Evidence

Plaintiff used Cashmere
Bouquet daily from at least 1968 to 1975.
(Opposition at p. 7 and evidence cited therein.)

Plaintiff’s expert Mark Bailey
states he investigated Italian talc and found it to contain asbestos. (Bailiey Decl. at p. 4.) He reviewed testing of talc from Italian
mines and found they tested positive for asbestos. (Id. at p. 5.) He concludes that talc from Italy consistently
contained trace amounts of asbestos from the 1960s to mid-1970s. (Id. at p. 6.) Bailey also analyzed information about other
talc sources and concluded they too contained asbestos. (Id. at pp. 6, 10.) Plaintiff also submits evidence of testing of
samples of Cashmere Bouquet in the early 1970s that contained some
asbestos. (Opposition at pp. 11-12 and
evidence cited therein.)

Plaintiff’s expert Murray
Finkelstein opines that brief, short-term, and low-dose exposures to asbestos
can cause mesothelioma. (Finkelstein
Decl. at p. 7.) He explains that studies
show use of cosmetic talcum powder can result in the release of asbestos fibers,
and that people who use asbestos-containing talcum powder are exposed to
significant concentration of asbestos fibers.
(Id. at pp. 12-13.) He concludes that Plaintiff’s regular use of
Cashmere Bouquet was a substantial factor in exposing her to asbestos and
causing her injury.

4. Analysis

Defendant argues that its
experts negate causation by showing Plaintiffs could not have been exposed to
asbestos via Cashmere Bouquet. (Motion
at p. 17.) However, Plaintiff’s experts presented
evidence of disputed facts about whether the talc mines from which Defendant
made the product contained asbestos and whether the Cashmere Bouquet product
contained asbestos.

Defendant asserts Berg
controls here. (Motion at p. 18.) But this case is more like Strobel
than Berg. Plaintiff regularly
used Cashmere Bouquet daily for at least seven years. Plaintiffs’ experts found asbestos from the
talc in the source mines. The type and
quality of evidence here and in Strobel is similar, such as academic
articles and historical testing, which the court in Strobel determined
was the type of material experts properly rely upon. For the same reasons expressed in Strobel,
it is reasonable to infer from the tests of the talc and products containing
talc from those mines that asbestos was present in Cashmere Bouquet during the
time Plaintiff was using it.
Accordingly, Plaintiff has shown disputed issues of material fact
regarding the presence of asbestos in the talc and in Cashmere Bouquet.

Unlike the plaintiff in Strobel,
Plaintiff had other exposures to asbestos from other talcum products. But given her long and frequent use of Cashmere
Bouquet, those other exposures go to comparative fault and do not require a
determination as a matter of law that Cashmere Bouquet cannot be the source of
exposure.

For these reasons, the
motion for summary judgment is denied.

C. Summary Adjudication

1. Third
and Fourth Causes of Action

Defendant seeks summary
adjudication of the third and fourth causes of action. Plaintiff does not oppose. (Opposition at p. 6.) Therefore, summary adjudication is granted as
to the third and fourth causes of action.

2. Punitive
Damages

Defendant moves for
summary adjudication of the punitive damages claim, arguing that Plaintiff does
not have clear and convincing evidence of oppression, fraud or malice by an
officer, director, or managing agent of Defendant.

When the motion targets a
request for punitive damages, a higher standard of proof is at play. “Although the clear and convincing
evidentiary standard is a stringent one, ‘it does not impose on a plaintiff the
obligation to “prove” a case for punitive damages at summary judgment [or
summary adjudication.’ [Citations.] Even so, ‘where the plaintiff’s ultimate
burden of proof will be by clear and convincing evidence, the higher standard
of proof must be taken into account in ruling on a motion for summary judgment
or summary adjudication, since if a plaintiff is to prevail on a claim for
punitive damages, it will be necessary that the evidence presented meet the
higher evidentiary standard.’ [Citation.]” (Butte Fire Cases (2018) 24 Cal.App.5th
1150, 1158-1159.) “Summary judgment or
summary adjudication ‘ “ ‘on the issue of punitive damages is proper’ only
‘when no reasonable jury could find the plaintiff’s evidence to be clear and
convincing proof of malice, fraud or oppression.’ ” ’. [Citation.]”
(Id. at p. 1159.)

“ ‘[I]ntentionally marketing a defective product
knowing that it might cause injury and death is ‘highly reprehensible.’ [Citation.]”
(Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68,
85.) Punitive damages may be available
when a defendant knows the dangers of asbestos, took action to protect its own
employees from the hazard, knew that its products were likely to pose a danger
to users, and did not warn them. (Pfeifer
v. John Crane, Inc. (2013) 220 Cal.Ap.4th 1270, 1300.) Such evidence “was sufficient to show malice,
that is, despicable conduct coupled with conscious disregard for the safety of
others.” (Id. at pp.
1300-1301.) On the other hand, a defendant’s
knowledge of trace amounts of asbestos in talc does not necessarily mean that
the defendant knew the asbestos in talc “would cause of high probability of
injury.” (McNeal v. Whittaker, Clark
& Daniels, Inc. (2022) 80 Cal.App.5th 853, 873.) There must be evidence of knowledge that
exposure to talcum powder would cause mesothelioma. (Id. at p. 874.)

Defendant points to Plaintiff’s response to Interrogatory
No. 6. (UMF 92.) The interrogatory asked Plaintiff to state
all facts supporting its claim for punitive damages against Defendant. (Strunk Decl., Ex. A at p. 17.) Plaintiff responded that Defendant knew about
the health risks of the talc and failed to provide safety information and
warnings. (Id. at p. 18.) Plaintiff stated that testing in the 1950s
through 1980s showed the presence of asbestos in the talc. (Id. at pp. 19-21.) Defendant should have been aware that
asbestos-contaminated talc was dangerous and warned consumers. (Id. at p. 21.) These responses are conclusory and restate
the allegations of the complaint without specific evidence concerning
Defendant’s malice, fraud, or oppression.

Defendant’s evidence is sufficient to shift the
burden because the discovery responses are factually devoid. Plaintiff cites a trial transcript and
deposition transcript from another case.
The transcripts are in very small print, fuzzy, and difficult to read,
and made more difficult by Plaintiff’s failure to highlight the relevant
parts. Plaintiff cites dozens of pages
without identifying the person who is testifying. The cited testimony concerns testing by
McCrone in 1974, a report Colgate submitted to the FDA, a study published in
1976 about asbestos in Cashmere Bouquet, and a New York Times article that
asbestos had been found in Cashmere Bouquet.
(Strunk Decl., Ex. H, Ex. I.)

This testimony does not show by clear and
convincing evidence that Colgate knew its powder products contained levels of
asbestos likely to pose a danger to users and yet failed to warn users. Plaintiff does not present evidence about
whether the levels of detected asbestos were meaningful or whether Defendant
had reason to believe based on the scientific and medical knowledge of the time
that talcum powder with the levels of asbestos shown by the testing was
dangerous. Plaintiff does not show that Defendant
made any product with the batches of talc that tested positive for asbestos. In sum, the evidence in the trial and
deposition transcripts is similar to the evidence the court in McNeal
concluded was not sufficient to show fraud, oppression, or malice.

The motion for summary
judgment is DENIED. The motion for
summary adjudication of the third and fourth causes of action and the claim for
punitive damages is GRANTED.

The moving party is to
give notice.