Judge: Laura A. Seigle, Case: 22STCV30385, Date: 2023-05-01 Tentative Ruling

Case Number: 22STCV30385    Hearing Date: May 1, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUGMENT

            Defendant Colgate-Palmolive Company filed a motion for summary judgment of Plaintiffs claims that Karen Hammel was developed mesothelioma after being exposed to asbestos in talcum powder products.  Defendant argues Plaintiffs’ claims fail because Defendant’s talcum powder product Cashmere Bouquet did not contain asbestos.

            The court notes that Plaintiffs’ opposition has too many lines per page making it difficult to read.  Documents on pleading paper should contain only 28 lines per page.  Long, difficult-to-read documents do not advantage the author. 

Defendant did not file a reply.

I.          Objections

            A.        Plaintiffs’ Objections

            Nos. 1-5:  Sustained.  Burke worked at Defendant form 1989 to 2017, yet he testified he is familiar with the historical documents concerning Cashmere Bouquet product showing that in the early 1970s, Colgate started testing for asbestos and talc and required suppliers to certify the talc was asbestos-free.  (Burke Decl., ¶ 10.)  His declaration does not identify or attach any documents supporting these conclusions.  In Ramirez v. Avon Products (2023) 87 Cal.App.5th 939, the court held that a declaration by a corporate witness about activities before she started working at the corporation “cannot be based on her personal knowledge and must be hearsay.”  (Id. at p. 951.)  In that case, the declarant had attached exhibits to her declaration, but the documents were “all hearsay with no identified exception.”  (Ibid.)  Therefore, the witness could not testify about the contents of those documents.  (Id. at pp. 952-953.)  That is the situation here.  Burke does not have personal knowledge of the 1970s activities and instead, Defendant uses Burke to channel information from unidentified documents that have not separately been shown to be admissible.

            Nos. 6-17, 21, 22:  Sustained.  

            Nos. 18-20:  Overruled.  Plaintiffs also rely on the McCrone testing.  See discussion below.

            Nos. 23-31:  The court did not rely on this evidence.

II.        Summary Judgment

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.        Talc Cases

The parties rely on four recent decisions reversing or affirming 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 that “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.) 

In Gibbons v. Johnson & Johnson Consumer Inc. (2020) 44 Cal.App.5th 745, the court addressed a different facet of the question whether the plaintiff was exposed to asbestos in talc and whether the exposure was a substantial factor in causing the injury – the need for expert testimony.  In that case, the plaintiff used talcum products daily for 20 years.  (Id. at pp. 477-478.)  The defendant moved for summary judgment with an expert declaration analyzing various governmental and academic studies and defense documents to conclude that the source mines were asbestos-free.  (Id. at p. 480.)  The plaintiffs did not submit an expert declaration in opposition.  (Id. at p. 483.)  The defendant’s expert declaration shifted the burden to the plaintiffs, and without their own expert testimony, the plaintiffs could not show disputed issues about the presence of asbestos in the talc because those issues are outside a lay person’s common experience.  (Id. at pp. 488, 492-493.)  The court therefore affirmed the grant of summary judgment.

B.        Defendant’s Evidence

Defendant takes the option of attempting to conclusively negate a necessary element of Plaintiffs’ case.  Defendant contends it has “affirmative evidence that the Cashmere Bouquet Ms. Hammel allegedly used did not contain asbestos.”  (Motion at p. 13.) 

Defendant relies on an expert declaration from Matthew Sanchez establishing “that Colgate’s talcum powder and talc from the source mines were free of asbestos.  (Motion at pp. 13-14)  Sanchez testified that Cashmere Bouquet did not contain asbestos because the source mines did not contain asbestos.  (Sanchez Decl., ¶ 13.)  He 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., ¶ 42.)  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., ¶ 53.) 

Defendant also relies on defense expert Jennifer Sahmel who testified that use of Cashmere Bouquet from the 1970s to 1995 would not have resulted in any measurable exposure to asbestos to Karen Hammel.  (Sahmel Decl., ¶ 33.)

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

C.        Plaintiffs’ Evidence

Plaintiffs submitted evidence that Karen Hammel used talcum powder daily from about 1969 when she was very young until just a few years ago.  (Gurien Decl., Ex. A at pp. 37-38.)  She used Baby Magic and Johnson & Johnson when she was younger, and then Cashmere Bouquet, Coty Airspun, and Gold Bond when she was older.  (Id. at pp. 42, 45.)  She started using Gold Bond every day in high school.  (Id. at pp. 255-256.)  In high school, she used Baby Magic, Johnson & Johnson, Cashmere Bouquet, and the Coty product.  (Id. at pp. 256, 419.)  She used Cashmere Bouquet in ninth grade up to the 1990s.  (Id. at pp. 271-273, 276.)  She used Cashmere Bouquet a lot.  (Id. at p. 291.)  She frequently used Coty Airspun and Bare Minerals as a face powder.  (Id. at p. 388.)  She used Coty Airspun on a daily basis until about 2005.  (Id. at pp. 419-422.)  She used Baby Magic and Johnson & Johnson daily when she was younger through her teens and on her children up to the early 2000s.  (Id. at pp. 430, 440, 500.)  She used Cashmere Bouquet commonly and frequently for many years.  (Id. at p. 501.)  She used “lots and lots” of containers of Coty Airspun.  (Id. at p. 588.)  She used “many, many, many” containers of Baby Magic and Gold Bond.  (Id. at pp. 589-590.) 

Plaintiffs also submit evidence that in the 1970s to 1990s Defendant obtained the talc for Cashmere Bouquet from mines in Italy and Montana.  (See evidence cited in Opposition at p. 10.) 

Plaintiffs’ expert, R. Mark Bailey, analyzed the geology of the Italian source mines, historic testing results, and tests of Cashmere Bouquet including tests during the time Karen Hammel was using the product.  (Bailey Decl., ¶¶ 10-13.)  Those tests show asbestos in the Italian talc and in Cashmere Bouquet.  (Ibid.)  He also studied tests performed by other experts that found asbestos in the Italian talc and in Cashmere Bouquet.  (Id. ¶¶ 16-17.)  He concluded, to a reasonable degree of scientific certainty, that talc from the Italian mines contained asbestos and Cashmere Bouquet contained asbestos during the period Plaintiff was using Cashmere Bouquet.  (Bailey Decl., ¶ 18.)  Bailey also analyzed the Montana talc by reviewing geologic and scientific literature and data from testing talc ore, processed talc, and finished products containing Montana talc.  (Bailey Decl., ¶ 21.)  He concluded that the Montana “mines are not asbestos free.”  (Id. ¶ 29.)

Plaintiffs’ expert Murray Finkelstein reviewed scientific literature and concluded that a person using asbestos-containing talcum powders is exposed to significant concentrations of asbestos fibers.  (Finkelstein Decl., ¶ 40.)  Based on his review of Plaintiff’s testimony about using Cashmere Bouquet and her medical records, he concluded she was exposed to significant concentrations of asbestos from using the product from the 1970s to the 1990s, which was a substantial factor in contributing to her risk of developing mesothelioma.  (Id. ¶ 51.) 

D.        Analysis

Plaintiffs’ expert presented evidence of disputed facts about whether the talc mines supplying the talc for Cashmere Bouquet contained asbestos, and about whether the use of asbestos-containing talcum powder could be a substantial factor in causing mesothelioma.

Defendant contends this case is like Berg.  (Motion at p. 14.)  As Defendant acknowledges, the plaintiff in Berg used four to six containers of the product over three to four years.  (Ibid.)  That is not the situation here.  Plaintiff regularly used Cashmere Bouquet from the 1970s to the 1990s.  Thus, this case is more like Strobel and Lyons than Berg. 

Plaintiffs’ expert found asbestos from the talc in the source mines and in the product itself during that period.  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 product 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 and substantial cause of her injury.

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

II.        Summary Adjudication

A.        Third and Fourth Causes of Action

Defendant moves for summary adjudication of the third and fourth causes of action.  Plaintiffs do not oppose summary adjudication of these causes of action.  (Opposition at p. 6.)  Plaintiffs’ failed to allege any specific false statements or communications from Defendant to Karen Hammel in the FAC.  Plaintiffs’ responses to interrogatories asking for all facts supporting the fraud allegations were factually devoid in that they did not identify specific statements or misrepresentations to Plaintiff or specific information that was intentionally concealed from Plaintiff.  (Strunk Decl., Ex. P at pp. 8-17.)  Defendant shifted the burden, and because Plaintiffs did not oppose, Plaintiffs did not show a disputed issue of material fact.

Summary adjudication is granted as to the third and fourth causes of action.

B.        Punitive Damages

Defendant moves for summary adjudication of the punitive damages claim, arguing that Plaintiffs do 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 cites Plaintiffs’ interrogatory asking for all facts supporting the request for punitive damages.  (UMF 35.)  In response, Plaintiffs stated in conclusory fashion that Defendant acted with malice, fraud and oppression by not warning consumers about the hazards of asbestos in its products, identified generic documents, and identified unnamed expert witnesses.  (Strunk Decl., Ex. P at pp. 18-19.)  This response was factually-devoid and did not specify any evidence showing Defendant acted with malice, fraud or oppression.  Defendant shifted the burden.

In their opposition, Plaintiffs cite 2015 trial testimony from an employee of Defendant who supposedly testified that Defendant knew Cashmere Bouquet was dangerous to users, and testing found high asbestos content in that product, but Defendant decided not to inform customers about that finding.  (Opposition at p. 23.)  Defendant cites page 653:2-6 for the assertion that Cashmere Bouquet was dangerous to users.  (Opposition at p. 23.)  That testimony actually states that “if there is any asbestos in a product like Cashmere Bouquet, it can be dangerous” to someone using it.  (Gurien Decl., Ex. D at p. 653.)  It does not state that the product actually had asbestos in it, Defendant knew the product contained asbestos, or that Defendant knew the product was dangerous to consumers.  Defendant cites pages 694:15-20, 695:17-697:24, 698:12-701:5, 893:13-894:17, 910:12-28, and 1081:23-1083:16 for the assertion that testing showed the product contained asbestos.  The witness testified at those pages about McCrone and Mount Sinai testing Cashmere Bouquet in 1974 and 1976.  Plaintiffs also cite pages 102:15-103:25, 104:24-106:2, 106:13-107:15, 110:17- 24, 111:18-112:10, 122:1-124:22, 125:14-138:7, and 180:12-182:8 from the witness’ deposition.  (Opposition at p. 23.)  There the witness testified that in the 1970s Defendant tested talc samples and found asbestos, and McCrone found asbestos in Cashmere Bouquet.  But none of this is evidence of that Defendant knew consumers could be harmed by the amount of talc found Cashmere Bouquet by the McCrone and Mount Sinai testing.

This is the type of evidence the court in McNeal concluded was insufficient to support punitive damages, stating “We cannot see how defendant’s conduct surrounding its testing protocols and lack of warnings on the possible asbestos content of their talc in the 1970s – albeit negligent – can be characterized as ‘despicable conduct’ that was carried on with an awareness of its ‘ “probable dangerous consequences.” ’  [Citation.]”  (McNeal, supra, 80 Cal.App.5th at p. 880.)  Plaintiffs did not show evidence that during the time Karen Hammel was using Cashmere Bouquet, Defendant knew about the “scientific and medical link between talcum powder use and mesothelioma” or that “the contamination of talc with trace amounts of asbestos could cause mesothelioma.”  (Id. at pp. 880, 881.) 

The deposition and trial testimony is not clear and convincing evidence that Defendant knew Cashmere Bouquet contained levels of asbestos likely to pose a danger to users and yet failed to warn users.  Plaintiffs did not present evidence that the levels of asbestos detected in the product in the 1970s posed a meaningful risk to consumers or that 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 could cause mesothelioma in consumers.  In sum, Plaintiffs’ evidence is similar to the evidence McNeal concluded was not sufficient and required reversal of the award of punitive damages. 

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

The moving party is to give notice.