Judge: Laura A. Seigle, Case: BC708543, Date: 2022-08-04 Tentative Ruling

Case Number: BC708543    Hearing Date: August 4, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMEN

            Plaintiffs allege that Edna Sanchez was exposed to asbestos by using Mennen Baby Magic talcum powder from the 1960s into the 1990s.  Defendant Colgate-Palmolive, which is the successor-in-interest to Mennen brought this summary judgment motion on the ground that the talc does not contain asbestos.

            A.        Objections

                        1.         Plaintiffs’ Objections

            Nos. 1, 3, 4, 47, 50:  Granted.

            No. 2:  Granted as to the first sentence.  Denied as to the rest.

            Nos. 5, 6, 7-46, 48, 51:  Denied.

                        2.         Defendant’s Objections to Moline

Nos. 1-13, 15, 17-27, 29-62:  Denied.

Nos. 14, 16, 28:  Granted.

                        3.         Defendant’s Objections to Longo

            Nos. 1-5, 7, 8, 9, 12, 13, 15, 16, 23, 25-28:  Denied.

            Nos. 6, 11, 14, 17, 18, 19, 20, 21, 22, 24:  Granted.

                        4.         Defendant’s Objections to Barley

            Nos. 1, 2, 3, 6, 7, 9, 10, 11, 13, 14, 16, 17, 24, 25, 26, 41, 43, 45, 46, 51-55: Granted.

            Nos. 4, 8, 12, 15, 18, 19, 10, 21, 22, 23, 27-40, 42, 44, 47-50:  Denied.

                        5.         Defendant’s Objections to Compton

            Nos. 1-10, 13, 14, 16-30, 32-36, 38-44:  Denied.

            Nos. 11, 12, 15, 31, 37:  Granted.

                        6.         Plaintiffs’ Reply Objections

            This was an improper brief rather than objections in the format required by California Rule of Court, rule 3.1354.  Denied.

            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 Edna Sanchez used Baby Magic starting in about 1978.  (Undisputed Material Fact “UMF” 8.)  She used both Johnson & Johnson and Baby Magic powder.  (UMF 9.)  In the 1980s, Edna Sanchez started a childcare service where she used Johnson & Johnson and Baby Magic powder.  (UMF 11, 12.)  According to Plaintiffs, Baby Magic has always contained Italian talc, and starting in 1973 it also contained Montana talc.  (Opposition at p. 4.)

Defendant contends “no evidence suggests that talc from Val Germanesca, Italy or Southwest Montana was contaminated with asbestos impurity.”  (Motion at p. 8.)  In support of this assertion, Defendant relies on the declaration of Matthew Sanchez.  Sanchez states the Montana and Italian talc is asbestos free, citing to various articles, studies, and government publications.  (Sanchez Decl., ¶¶ 40-46, 51-53.)  Epidemiological studies found no deaths among Italian miners and millers as a result of asbestos.  (Id. at ¶ 54.)  He tested talc he obtained from the Italian mine and found no asbestos.  (Id. at ¶ 56.)  FDA testing in 1973, 1976, and 1979 of other Mennen talc products found no asbestos.  (Id. at ¶¶ 75-77.)  Mennen’s testing from 1976 into the 1980s found mostly no asbestos and rejected any talc lot found to contain asbestos.  (Id. at ¶ 81.) 

In addition, Defendant’s expert Jennifer Sahmel opines that even if Baby Magic contained trace amounts of asbestos, the amount would have been within the cumulative lifetime background amount found in the air.  (Sahmel Decl., ¶¶ 41, 45, 46.)  Therefore, she concludes the exposure from Baby Magic was minimal and did not cause a statistically significant increased risk of mesothelioma.  (Id. at ¶ 53.)

This evidence is sufficient to shift the burden to Plaintiffs.

            3.         Plaintiffs’ Evidence

Plaintiffs calculate that over the 20-plus years Edna Sanchez operated her childcare business, she used two to four bottles of Baby Magic each month, for more than 550 bottle in total.  (Additional Undisputed Material Fact  “AUMF”) 17.) 

Plaintiffs’ expert Steven Compton states that Italian talc and Montana talc has been found to contain asbestos, citing to geological studies.  (Compton Decl., ¶¶ 7, 8, 9.)  He also cites to research indicating mine workers had mesothelioma caused by the asbestos in the geologic formation and increased risk of cancer among talc workers.  (Id. at ¶¶ 7, 13.)  He tested talc from Italy and Montana and concluded it contained asbestos.  (Id. at ¶¶ 15, 24.)  He tested a container of Mennen Baby Magic obtained by Plaintiffs’ counsel in another case and found it contained asbestos.  (Id. at ¶ 25.)  He tested other Colgate talcum products from the 1970s and earlier that used asbestos from the Montana and Italian mines, and found the presence of asbestos.  (Id. at ¶¶ 27, 28.)  He concludes that because talc from the Italian and Montana sources contained asbestos and testing of Mennen’s talc products contained asbestos, Baby Magic talcum powder contained asbestos.  (Id. at ¶ 46.)

Plaintiffs’ expert William Longo tested Mennen’s shave talc, which was made with the same talc as Baby Magic, and detected asbestos.  (Longo Decl., ¶ 31.) 

Plaintiffs’ expert Jacqueline Moline concluded that Edna Sanchez’s exposure to asbestos from talc products, including Baby Magic, was above normal background levels and a substantial factor in causing her mesothelioma.  (Moline Decl., ¶¶ 6, 10, 58.)  Based on studies and articles, she explains that using powder in the way Edna Sanchez used it increased the exposure to asbestos particles significantly above the background level.  (Id. at ¶¶ 50, 56, 57.)  She concludes that Edna Sanchez’s use of talcum powder products including Baby Magic exposed her to asbestos 80 times above background levels and caused her mesothelioma.  (Id. at ¶¶ 58, 61.)

            4.         Analysis

Defendant argues the Compton and Longo opinions are inadmissible because they did not test the actual Baby Magic containers that Edna Sanchez used.  (Reply at p. 5.)  Neither did Defendant’s expert.  Defendant argues the test results of other talc products are irrelevant to Baby Magic.  (Reply at pp. 5-6.)  According to Compton and Longo, the talc sources are the same as those for Baby Magic, which makes the tests of the other talc products at least somewhat probative.  That the other talc products had different brands or were non-Mennen goes to the weight to be given that evidence.  Defendant argues that Compton did not use “generally accepted analysis” when he tested the Baby Magic product.  (Reply at p. 5.)  This appears to refer to the dispute about whether TEM is an appropriate method, which Sanchez claims it is not.  (See, e.g., Sanchez Decl., ¶ 34.)  As the court concluded in Strobel, Sanchez’s critique of TEM “goes to the weight and not the admissibility of the opinions offered by” Plaintiffs’ experts.  (Strobel, supra, 70 Cal.App.5th at pp. 811-812.)  Similarly, many of Defendant’s other criticisms about Plaintiffs’ experts’ analysis, testing, and source materials go to the weight to be given those experts’ conclusions by the jury.  (See, e.g., Reply at pp. 4-5.)

Defendant argues Moline’s opinions are inadmissible because she relies on Compton’s and Longo’s opinions.  (Reply at p. 7.)  As discussed above, Compton’s opinions are admissible, and Longo’s testimony that he tested Mennen’s shave talc, which was made with the same talc as Baby Magic, and detected asbestos, is admissible.  (Longo Decl., ¶ 31.) 

Defendant asserts Berg controls here.  (Motion at p. 12.)  But this case is more like Strobel than Berg.  Edna Sanchez regularly used Baby Magic for more than twenty years.  Plaintiffs’ experts tested talc from the Montana and Italian mines and found asbestos.  They tested products made with that talc and detected asbestos.  The type and quality of evidence here and in Strobel is similar – published materials from government agencies, professional standard-setting groups, 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 Montana and Italian mines and products containing talc from those mines that asbestos was present in Baby Magic during the time Edna Sanchez was using it.  Accordingly, Plaintiffs have shown disputed issues of material fact regarding the presence of asbestos in the Montana and Italian mines and in Baby Magic.

Unlike the plaintiff in Strobel, Edna Sanchez had other exposures to asbestos.  But given her long and frequent use of Baby Magic, those other exposures go to comparative fault and do not require a determination as a matter of law that Baby Magic cannot be the source of exposure.

In addition, the conflicting opinions of Sahmel and Moline show disputed issues of material fact about causation for the jury to decide.

For these reasons, the motion for summary judgment is denied

C.        Summary Adjudication

            1.         Design Defect

Defendant moves for summary adjudication of Plaintiff’s design defect theory of liability because Plaintiffs’ claim that asbestos was a contaminant in talc means Baby Magic could not have been defectively designed.  (Motion at p. 16.)  Defendant argues, “A design defect exists where the product at issue is built in accordance with its intended specifications but the design itself is inherently defective,” and talcum powder is not designed to contain asbestos.  (Reply 1t p. 16; LAOSD Asbestos Cases (2020) 44 Cal.App.5th 475, 489.)

“[A] manufacturing or production defect is readily identifiable because a defective product is one that differs from the manufacturer’s intended result or from other ostensibly identical units of the same product line.”  (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 429.)  “First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.  Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.”  (Id. at p. 432.)  Defendant did not show Plaintiffs cannot satisfy these tests.  For example, Plaintiffs argue the formula for Baby Magic could have specified the use of corn starch instead of talc. 

Therefore, summary adjudication is denied.

            2.         Punitive Damages

Defendant argues Plaintiffs have no evidence supporting punitive damages because Baby Magic was safe.  (Motion at p. 18.)  For the reasons stated above, this is a disputed issue.

Defendant also argues that Plaintiffs’ discovery responses on punitive damages are factually-devoid, citing UMF 1, 4, and 5.  (Motion at p. 19.)  UMF 1 refers to the complaint.  UMF 4 and 5 refer to Plaintiffs’ Responses to Special Interrogatories.  Special Interrogatory No. 6 asked for all facts supporting the contention that Defendant is liable for punitive damages.  (Cosgrove Decl., Ex. B at p. 10.)  Plaintiffs responded that Defendant’s records would show that Defendant knew that its talcum powder products contained asbestos that was dangerous.  (Id. at p. 11.)  Assuming this response was factually-devoid and shifted the burden, Plaintiffs’ evidence in opposition, as set out in the expert declarations, raises disputed issues about what Defendant knew concerning asbestos in the talc sources and it powders.

The motion for summary judgment and summary adjudication is DENIED.