Strobel v. Johnson & Johnson ( 2021 )

Filed 9/21/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
JO ANN STROBEL,
Plaintiff and Appellant, A159609
v. (Solano County Super. Ct.
JOHNSON & JOHNSON et al., No. FCS052548)
Defendants and Respondents.
Douglas Strobel was diagnosed with malignant mesothelioma in
February 2019 and passed away at age 68 in April 2020, during the pendency
of this appeal. Before his death, Strobel sued Johnson & Johnson (J&J) for
damages under product liability, negligence and fraud theories, alleging that
continuous exposure to asbestos in J&J’s Baby Powder (JBP), a product he
used regularly for some sixty years, was a substantial contributing cause of
his mesothelioma. Strobel’s wife, Jo Ann, a coplaintiff who substituted in as
the sole appellant after his death, seeks recovery for loss of consortium.
The trial court granted summary judgment for J&J. Pointing to the
declaration of J&J’s expert, Dr. Matthew Sanchez, who swore that JBP was
at all relevant times asbestos-free, the court ruled that the Strobels failed to
present evidence creating a triable issue of legal causation. The Strobels filed
declarations from five experts, Drs. Sean Fitzgerald, Steven Compton,
Murray Finkelstein, and Richard Cohen, and Mr. Charles Ay, all
contradicting J&J’s experts on this point.
1
The court sustained J&J’s hearsay objections to much of the Strobels’
proffered expert testimony under People v. Sanchez (2016) 63 Cal.4th 665(Sanchez) and for lack of foundation. It then concluded that, after the
exclusion of this testimony, the Strobels could not bear their burden of proof
on legal causation because what was left—the opinions from Drs. Fitzgerald
and Compton—only confirmed the presence of asbestos in the talcum ore J&J
used to manufacture JBP, not in JBP offered for sale as a finished product
during the years Doug Strobel used it. Without relying on case-specific
hearsay about which these experts had no personal knowledge, the court
ruled, they could only speculate about the presence of asbestos in JBP during
the exposure period.
This appeal followed the entry of judgment for J&J. We now reverse.
I. BACKGROUND
A. Doug Strobel’s History of Using JBP
Starting shortly after his birth in 1951, Doug Strobel’s mother
regularly used JBP when diapering him as an infant. As a young boy, Doug
developed what would become a lifelong habit of applying JBP on himself,
coating his feet in it and dumping it in his shoes after little league baseball
practice to reduce odor. When he applied JBP to his feet in this way, a cloud
of it would arise around him. Doug continued this habit as he grew older,
applying JBP to his feet two to three times a week for nearly six decades,
until 2014. Every two months or so, his wife, Jo Ann, routinely bought
containers of JBP for Doug’s use, as his mother had done when he was a boy.
One of the Strobels’ experts testified that, over the course of his lifetime,
Doug Strobel used at least 338 containers of JBP. While none of this is
disputed, whether asbestos was present in JBP during the six-decade
exposure period is a matter of sharp dispute.
2
B. Whether JBP Was Contaminated with Asbestos: The State of the
Evidence on Summary Judgment
The Strobels were unable to produce any containers of the JBP that
Doug Strobel actually used or to arrange for testing of the contents of those
containers, since all of them were consumed years ago. But the Strobels did
make a showing that, over the course of Doug Strobel’s lifetime, he was not
exposed to asbestos from any source other than JBP.1 Generally speaking,
the proof bearing on whether JBP contained asbestos during the period 1951
through 2014 fell into two categories. First, there were opinions from
physicians specializing in asbestos-related diseases who considered Doug
Strobel’s lifetime habit of using JBP and addressed whether it was a likely
cause of his mesothelioma (Drs. Cohen and Finkelstein for the Strobels and
Dr. Moolgavkar for J&J2). Second, there was evidence from geologists and
1 The absence of some source of asbestos exposure other than JBP is the
thrust of the expert declaration from Charles Ay, a certified consultant with
expertise in workplace asbestos exposure. Ay identifies 12 types of commonly
used industrial products that are known to contain asbestos (joint compound,
fireproofing, gaskets and packing, brakes and clutches, dryer felts, asbestos-
cement pipe, gloves and cloth, electrical insulation, floor tile, thermal systems
insulation, gun plastic cement, and stucco). Having worked for many years
as a pipefitter in the marine insulation and construction industries, Ay
gained familiarity with the nature and properties of asbestos by actually
working with these asbestos-containing industrial products.
2 Dr. Cohen, a clinician with a private practice, and Dr. Finkelstein, a
retired government consultant on asbestos regulation, are both professors of
occupational health and environmental medicine. Dr. Moolgavkar is a cancer
epidemiologist and research scientist. Although Drs. Cohen, Finkelstein, and
Moolgavkar have widely varying professional profiles, each is a physician
with special expertise in one or both of the fields of epidemiology (the
incidence, patterns, and causes of disease in human populations) and
industrial toxicology (the investigation of the health effects of dust,
chemicals, metals, toxic materials, and physical agents on workers who may
be exposed in the workplace).
3
asbestos detection experts who conducted geological and mineralogical
analyses, using microscopic examinations and other techniques to test for the
presence of asbestos in JBP milled as a finished product and in the source
talc ore used to manufacture it (for the Strobels, Dr. Compton [source ore
only] and Dr. Fitzgerald [source ore and milled JBP], and for J&J,
Dr. Sanchez [source ore and milled JBP]3).
Among all the physicians who submitted declarations for and against
summary judgment, it was undisputed that mesothelioma is a signal tumor
almost always associated with exposure to asbestos. Dr. Cohen opined
without contradiction that inhaled asbestos fibers can become lodged in the
lungs or the pleural cavity around the lungs, and that when the body is
unable to expel these fibers through its natural immune response, they may
cause genetic damage at the cellular level, ultimately causing mesothelioma.
Dr. Cohen further opined, here too without contradiction, that there may be a
long latency period between exposure to asbestos and the development of
asbestos-related diseases (10–50 years is “normal”); that “mesothelioma is a
very low dose disease, with no known minimum threshold of exposure to
3 Dr. Compton, a physicist, works in the areas of “particle analysis,
asbestos analysis, industrial hygiene, and the physics of small particles.” He
specializes in “the identification, measurement and analysis of materials,
determining the constituent ingredients in materials, and characterizing
those materials and ingredients, including asbestos and talc.” Dr. Fitzgerald
is “a licensed Professional Geologist, mineralogist and asbestos expert, with
over 30 years of experience analyzing asbestos minerals and researching and
developing the science of asbestos.” He is familiar with regulatory standards
governing asbestos and has “substantial training and experience in the
analysis of asbestos and asbestos-containing materials, including
transmission electron microscopy, scanning electron microscopy, x-ray
diffraction and polarized light microscopy.” Dr. Sanchez, a geologist,
specializes in “characterizing asbestos in raw materials and in building
products and the development of asbestos analytical methods.”
4
asbestos below which there is no risk”; and that the chance of disease
developing from exposure to asbestos is “proportional to” cumulative dosage
over time.
From there, however, the physicians for each side sharply disagreed.
For the Strobels, Dr. Cohen opined that “to a reasonable degree of medical
certainty . . . [the JBP] Douglas Strobel used and was exposed to for decades,
starting 68 years ago” contained asbestos “above normal background levels”;
“that his use of and exposure to asbestos from [JBP] was a significant and
impactful contributing factor in the development of his mesothelioma”; and
that “Douglas Strobel’s exposure to asbestos was the cause of his
mesothelioma.” Dr. Finkelstein concurred. J&J, for its part, contended that
Doug Strobel’s mother sometimes used a brand of cosmetic talcum powder
manufactured by Colgate-Palmolive rather than JBP, but did not dispute the
absence of any unusual source of asbestos exposure in Doug Strobel’s life
other than talcum powder, nor did it claim he had any habits such as
smoking that put his lungs at particular risk. Rather, J&J disputed legal
causation based on Dr. Moolgavkar’s view that mesothelioma, like all
cancers, can develop spontaneously, that mesothelioma may be triggered by
any number of carcinogens commonly found in today’s environment, and that
the risk of contracting mesothelioma is strongly correlated with a person’s
age.
The principal difference between the physician experts was this. The
Strobels’ physicians gave weight to the opinions of Drs. Fitzgerald and
Compton, who each attested that consumer powders made from talc produced
from the mining regions where J&J obtained talc contained asbestos, while
Dr. Moolgavkar did not, giving weight instead to the likelihood of other
potential asbestos exposure sources and general risks that anyone may face
5
in developing mesothelioma. The Strobels’ physicians cited the extensive
literature relating to the geology and mineralogy of asbestos, discussed
testing methodologies for detecting asbestos, and used statistical analysis—
extrapolating from the frequency and incidence of positive asbestos findings
in the tests undertaken by others—to opine on the percentage likelihood that
asbestos would be present in any given container of JBP during the time
Doug Strobel used it. But because none of the physicians actually conducted
any tests for the presence of asbestos in JBP or in the talc ore used to
manufacture JBP, the testimony of the geologists and asbestos testing
experts had dispositive significance in the trial court’s analysis.
As further explained below, the trial court ruled that Dr. Compton’s
and Dr. Fitzgerald’s declarations, to the extent they infer the presence of
asbestos in milled, finished talcum powder from nothing more than positive
tests for asbestos in raw talc ore used to manufacture it, are legally
insufficient to create a triable issue of fact under applicable principles of
causation. And to the extent Dr. Fitzgerald’s declaration went beyond that,
opining that asbestos was present in JBP itself during the exposure period,
the court ruled that his opinion constituted inadmissible case-specific hearsay
under Sanchez, supra, 63 Cal.4th at pages 684–686, which in effect left the
opinions of Dr. Sanchez and Dr. Moolgavkar unrebutted.
C. The Geology and Mineralogy of Talcum and Asbestos
To frame the issues that divided the opposing experts in this case in a
more specific way, we pause for a brief tour through the science that
undergirds their opinions. Much of that science is undisputed. Talcum, or
“talc” as the parties refer to it in shorthand, is a hydrated magnesium silicate
mineral. One of the softest minerals on earth, at the far end of a spectrum
opposite to, say, diamond, talc is used in a wide variety of commercial
applications ranging from pharmaceuticals and cosmetics to ceramics, paints,
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paper, and asphalt roofing. Talcum powder, a talc-based cosmetic product, is
manufactured by a milling process in which large pieces of talc ore are
crushed and pulverized into fine-grained powder.
There are essentially two types of talc ores, industrial grade and
cosmetic/pharmaceutical grade, depending on the particular deposit from
which the ore comes. Talc deposits vary with regard to chemistry,
morphology and habit. Chemistry in this context refers to the elemental
composition of a mineral.4 Morphology refers to the size and shape of
particles in a mineral. And habit refers to the form, crystal structure and
texture in which a mineral is found in nature. Certain talc deposits, valued
for their purity, softness and fine particle size, tend to be the ones used for
cosmetic products.
“Asbestos” is a collective term describing a regulated group of six
naturally occurring, highly fibrous silicate minerals that grow in a unique
crystalline form as bundles. Geologists describe this growth habit as
“asbestiform.” In the process of being crushed in the talcum powder milling
process, asbestiform bundles are easily separated into long, thin, flexible
fibers. When crystallized in an asbestiform habit, the six minerals that are
regulated as asbestos fall into two mineral families: serpentine and
amphibole. Both mineral families grow in asbestiform and nonasbestiform
4 To geologists, a “mineral” is a regular and specific arrangement of a
given chemistry (chemical elements that are present in a certain ratio or
amount). Only ten elements in the periodic table of elements make up 98.8
percent of the earth’s crust, namely, in order of abundance: oxygen, silicon,
aluminum, iron, calcium, sodium, potassium, magnesium, titanium, and
hydrogen. “Silicates,” which are made up of four oxygen atoms bonded to a
single silicon atom and arranged in the pyramidal shape of a tetrahedron, are
a family of minerals.
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habits. Serpentine and amphibole minerals with a nonasbestiform
morphology are not regulated as asbestos.
Talc and asbestos minerals are distinct, but they are closely related in
their geological formation and thus often found together in nature. Because
magnesium, silica, and water are the essential ingredients in talc and
asbestos, both minerals form under the same conditions. They both grow
within formations of either continental rock or ocean crustal rock.
Continental rock, which includes layered sedimentary rock of many varieties,
is dominated by the elements silicon and aluminum, while ocean crustal rock,
known as basalt—and further classified by geologists as either mafic or
ultramafic in origin—is both silica poor and magnesium and iron rich.
As a result, asbestos is often found intergrown as an “accessory
mineral” within a talc deposit. Serpentine tends to appear in talc deposits in
mafic and ultramafic host rocks while amphiboles and serpentine tend to
appear in talc deposits in sedimentary host rock. The growth of talc and
asbestos within either of these two types of host rock occurs by complex
metamorphic processes. According to Dr. Fitzgerald, the asbestos minerals
most likely to be found as accessory minerals within talc are chrysotile, the
fibrous form of serpentine, and the asbestiform varieties of three amphibole
minerals: actinolite, tremolite, and anthophyllite.
Summing up the geology and mineralogy of asbestos in general terms,
Dr. Fitzgerald states that the three most common asbestos accessory
minerals found in talc (anthophyllite, tremolite and chrysotile) “form under
similar conditions in regional or contact metamorphism of ultramafic rocks
especially in the presence of carbonates and water, as all of these minerals
are hydroxylated magnesium silicates.” And according to Drs. Cohen and
Finkelstein, who add an epidemiology perspective, of those three, all have
8
documented histories as carcinogens when humans are exposed to them in
dust form.
D. Testing for Asbestos
Asbestos fibers are very small, so small, in fact, that millions of fibers
could fill the air in a room without anyone being able to perceive them with
the naked eye. Testing to detect them, as a result, requires specialized
technology that can identify particles at the level of microns, a unit of
measurement that is approximately 70 times smaller than the breadth of a
human hair.5 These tiny fibers are distinguished by having a large aspect
(length to diameter) ratio with highly parallel sides and are crystallized in an
asbestiform morphology that causes them to separate into very thin fibers or
fibrils. There are several analytical methods for detecting and identifying
asbestos fibers. Each method has advantages and disadvantages. Bulk
sampling identifies how much asbestos is in a product or material. Air
sampling identifies how many asbestos fibers are released into the air.
For identifying asbestos in bulk materials, X-Ray Diffraction (XRD)
determines the crystalline structure of minerals by measuring the response
angles and intensities of an X-ray beam reflected through the lattice
structure of a mineral. This method yields a mass percentage of different
minerals present, but it has a detection limit around 1 percent for the
regulated asbestos minerals and is incapable of detecting individual asbestos
5 Microns are denoted by the symbol µm. Nowhere in any of the
thousands of pages of often highly technical expert declarations in this case
does any expert explain the relative size of a micron as a unit of
measurement. Since the comparison of a micron to the breadth of a human
hair is helpful for explanatory purposes, under Evidence Code section 451,
subdivision (f ), we will take judicial notice of it. (Ley, Diameter of a Human
Hair (1999) in The Physics Factbook (Elert edit.) [as of Sept. 21, 2021].)
9
fibers. Polarized Light Microscopy (PLM), which can determine the different
asbestos types by optical properties and asbestiform morphology, also allows
positive asbestos identification at the level of individual fibers, but is limited
in its resolution and does not allow for positive identification of smaller fibers
(e.g., shorter than 5 µm long, or narrower than 0.25 µm, the types of fibers
that, according to Dr. Fitzgerald, are typically found as contaminants in talc).
Some experts in asbestos materials testing—Dr. Fitzgerald, for
example—believe that Transmission Electron Microscopy (TEM) is the most
reliable instrument for detection and identification of all asbestos types,
especially in air sampling because of its higher resolution and thus higher
sensitivity to the presence of individual asbestos fibers. The high-energy
electron beam used in TEM allows resolution of even the thinnest 0.02-µm
asbestos fiber, and Selected Area Electron Diffraction (SAED) can determine
if the crystalline structure is one of the asbestos mineral types. As a further
refinement, an Energy Dispersive X-ray detector (EDX) interfaced with a
TEM yields elemental composition, confirming particle chemistry. According
to Dr. Fitzgerald, TEM can therefore determine the morphology, structure,
and chemistry definitional to asbestos minerals, at a resolution capable of
defining asbestos fibers at the finest level.
Other experts in asbestos materials testing—Dr. Sanchez, for
example—believe that electron microscopy alone is a suboptimal method to
test for the presence of asbestos. According to Dr. Sanchez, the combination
of XRD and PLM has been approved by the United States Food and Drug
Administration (FDA) as a method of testing talcum powder for decades.
Dr. Sanchez holds the view that, because PLM analysis examines a greater
number of particles than TEM analysis, and because TEM images alone only
depict morphology—yielding accurate information only if used with SAED
10
according to a rigorous protocol called the Yamate Level III Method6—
examination of populations of particles is best performed by PLM.
E. The Opinions of Dr. Fitzgerald and Dr. Compton
In opposition to J&J’s summary judgment motion, Dr. Fitzgerald
opined for the Strobels that “geologists have known for well over a century of
the intimate relationship between talc and asbestos.” He further opined that,
to determine the presence of asbestos as accessory minerals in talc mining
ore, “we must closely and carefully examine” the talc formation from which
the talc is mined, both from the “macroscopic geology of formation to the
microscopic examination of materials and minerals as they change through
time.”
During the exposure period in question here—1951 through 2014—J&J
obtained talc that was later formulated into JBP from three mining sources:
(1) from 1951–1967, the Val Chisone and Val Germanasca region of
Piedmont, Italy, (2) from 1968–2003, the Windsor region in the state of
Vermont, and (3) from 2003–2014, from Guangxi Province, near Guilin City,
in China. Dr. Fitzgerald opined without contradiction that metamorphic
processes in all three of these areas are conducive to the formation of
asbestiform anthophyllite, tremolite, or chrysotile as accessory materials
within talc.
According to Dr. Sanchez, “[t]he Yamate Level III Method is a TEM
6
protocol that describes a quantitative type of SAED analysis. The Yamate
Method has three increasingly rigorous levels of analysis, and under the
Yamate Method Level III, in specified circumstances an analyst must obtain
diffraction patterns from two different zone axes to positively identify a
mineral as an amphibole. . . . This is particularly true in talc, where talc and
anthophyllite, for example, can yield similar diffraction patterns depending
on the orientation of the particle to the electron beam.”
11
Dr. Fitzgerald tested samples from the Italian source ore and reported
that, “I found both asbestiform anthophyllite and asbestiform tremolite, and
occasionally chrysotile asbestos, not only present in the talc, but easily made
airborne when product use was simulated by my own hand.” Dr. Compton, a
physicist with expertise in asbestos testing, tested talc ore samples from
Italian and Vermont mining regions used by J&J and reported results
consistent with those of Dr. Fitzgerald.7
According to Dr. Compton, “the asbestos content of . . . samples [for the
Italian talc ore] found to contain amphibole and chrysotile fibers range[s]
from approximately 1.7 to 660 million fibers per gram,” and for the Vermont
ore found to contain amphibole fibers, the range was 1.16 to 15.3 million
fibers per gram. “Fiber release studies of consumer talc products within this
range,” Dr. Compton opined, show “elevated concentrations of airborne
asbestos fibers during use of those products. It is expected that
aerosolization of these samples or any powder consumer product containing
these samples as a constituent ingredient would likewise result in elevated
concentrations of airborne asbestos fibers.”
Addressing J&J’s Chinese talc, Dr. Fitzgerald relied primarily on the
geology of the region. According to Dr. Fitzgerald, talc deposits in the
Guangxi region are “[c]omprised chiefly of siliceous carbonate rock derived
from marine sediments subsequently metamorphosed to low-grade
greenschist assemblages.” He explained, further, “it is well recognized
7 The declaration of Dr. Fitzgerald references the ore samples he tested
as “AGI 1615,” a designation that he uses to describe ore as coming from a
specific mining location in the Val Chisone/Val Germanasca region known as
the Fontane Mine. Dr. Compton also tested ore from the Fontane Mine.
According to Dr. Compton, the Fontane Mine has been in operation since the
seventeenth century.
12
that the metamorphism of siliceous dolomites invariably forms tremolite,
often fibrous.” In addition to commenting on the regional geology of J&J’s
Chinese talc, Dr. Fitzgerald also observed that, in 2019, the FDA, through a
contract laboratory, conducted tests of “Chinese talc-based Johnson &
Johnson baby powder . . . , with repeated findings of asbestos in the
products.”
F. Summary Judgment for J&J
Upon examination of the evidence presented in support of, and in
opposition to, J&J’s motion for summary judgment, the trial court
determined that J&J carried its initial burden of production, thus shifting
the burden to the Strobels on the issue of legal causation. After scrutinizing
the Strobels’ evidence in opposition to the motion, the trial court assumed
arguendo that the Strobels had presented through Drs. Fitzgerald and
Compton “competent direct evidence that samples of source ore associated
with deposits at some source mines have been found to contain asbestos.”
But that was not enough to meet the test of legal causation. Looking
downstream from the mining sources of talcum ore, the court focused on
whether “the talc ore from a deposit that actually contained asbestos was
milled into talcum powder and then actually used in JBP sold during
Plaintiff’s exposure period.” The key witness on this issue was
Dr. Fitzgerald, who tested five JBP samples obtained from J&J’s historical
archives, reporting positive tests for asbestos in four of them, but none of
these asbestos-positive samples dated from within the exposure period.
The testing results in the record confirming the presence of asbestos in
JBP marketed by J&J during the six-decade-plus exposure period at issue—
presented with laboratory bench data specifying the number of asbestos
structures counted—came from asbestos testing expert Dr. William Longo.
Dr. Longo has presented these test results through testimony and expert
13
reports in other asbestos litigation against J&J, but he was not designated as
an expert in this case. Drs. Fitzgerald, Cohen and Finkelstein all cited and
relied on Dr. Longo’s reported test results.8 Drs. Finkelstein and Cohen had
no foundation to rely upon Dr. Longo’s test results, the trial court ruled, since
his work was outside their area of expertise. And “to the extent” any of the
Strobels’ experts, including Dr. Fitzgerald, relied on Dr. Longo, the court
ruled that their opinions were inadmissible case-specific hearsay under
Sanchez.
The court overruled most of J&J’s objections to Dr. Compton’s proffered
opinion, but since he tested only mined ore, it concluded that that still left a
gap in the Strobels’ evidence they could not overcome. Having ruled that, “to
the extent” Drs. Fitzgerald, Cohen, and Finkelstein rely on inadmissible
hearsay and that Mr. Ay was not competent to address the presence of
asbestos in JBP, the trial court turned to the Strobels’ remaining evidence of
exposure to milled and formulated retail containers of JBP. The court noted
the Strobels’ evidence included a number of studies that have been published
over the years reporting positive tests for asbestos in JBP samples, but
concluded the Strobels failed to “establish a hearsay exception that
permit[ted] [them] to use these documents to prove the truth of the matter,
rather than the limited non-hearsay purpose of notice to [J&J].” Ultimately,
the court found, the Strobels “fail[ed] to establish triable issues of fact to link
the harvesting of a known deposit of asbestos-contaminated talc ore from a
particular mine through the milling process and into a canister of JBP sold in
stores during the exposure period.”
8 Mr. Ay stated it was his understanding that “talc, an ingredient in
Johnson’s baby powder used by Mr. Strobel . . . , contained asbestos,” without
specifying the basis of that statement.
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II. DISCUSSION
A. Legal Standards
We begin with familiar legal standards.
A trial court must grant a motion for summary judgment “if all the
papers submitted show that there is no triable issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.”
(Code Civ. Proc., § 437c, subd. (c).) When, as here, defendants move for
summary judgment, they can “meet their burden by demonstrating that ‘a
cause of action has no merit,’ which they can do by showing that ‘[o]ne or
more elements of the cause of action cannot be separately established . . . .’ ”
(Id., subd. (o)(1); Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243,
253.) “The defendant has shown that the plaintiff cannot establish at least
one element of the cause of action by showing that the plaintiff does not
possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 854.)
If that initial burden is met, the burden shifts to the plaintiff “to show
that a triable issue of one or more material facts exists as to the cause of
action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “There is
a triable issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party
opposing the motion in accordance with the applicable standard of proof ”
(Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850), which here is
the preponderance of the evidence (Rutherford v. Owens-Illinois, Inc. (1997)
16 Cal.4th 953, 965 (Rutherford )).
“ ‘On appeal “[w]e review a grant of summary judgment de novo; we
must decide independently whether the facts not subject to triable dispute
warrant judgment for the moving party as a matter of law. [Citations.]”
[Citation.] Put another way, we exercise our independent judgment, and
15
decide whether undisputed facts have been established that negate plaintiff’s
claims.’ ” (Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 977.) We
“ ‘accept as true the facts . . . in the evidence of the party opposing summary
judgment and the reasonable inferences that can be drawn from them.’ ”
(Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 254.) And in
undertaking our analysis, “ ‘we must “ ‘view the evidence in the light most
favorable to [the plaintiffs] . . .’ and ‘liberally construe [the plaintiffs’]
evidentiary submissions and strictly scrutinize [the] defendant[’s] own
evidence, in order to resolve any evidentiary doubts or ambiguities in [the
plaintiffs’] favor.’ ” ’ ” (Turley, at p. 978.)
We must, however, disregard any evidence to which legally correct
objections have been made and sustained. (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 334; Code Civ. Proc., § 437c, subd. (c).) Since the trial
court’s evidentiary rulings excluding some of the Strobels’ proffered evidence
are central to its analysis, our standard of review of those rulings is crucial.
As we discuss in part II.B.2.a., post, there is some dispute in the case law
(and between the parties) as to whether the de novo standard or the abuse of
discretion standard should apply. “[T]he weight of authority holds that an
appellate court reviews a court’s final rulings on evidentiary objections by
applying an abuse of discretion standard.” (Carnes v. Superior Court (2005)
126 Cal.App.4th 688, 694; see Serri v. Santa Clara University (2014)
226 Cal.App.4th 830, 852.) But for reasons specific to this case cited in part
II.B.2.a., post, we elect to employ a de novo standard of review.
Turning from procedure to substance, the applicable substantive law
focus here is on legal causation. As is frequently the case in asbestos
litigation, that, in turn, requires us to consider the issue of exposure to
asbestos. To prevail on “a cause of action for asbestos-related latent injuries,
16
the plaintiff must first establish some threshold exposure to the defendant’s
defective asbestos-containing products.” (Rutherford, supra, 16 Cal.4th at
p. 982.) Here, the determinative issue is whether the Strobels presented
sufficient admissible evidence to create a triable issue of whether a
reasonable jury could conclude it was more likely than not that the JBP Doug
Strobel used contained asbestos. (LAOSD Asbestos Cases (2020)
44 Cal.App.5th 475, 489.)
B. Analysis
We conclude that the Strobels presented sufficient admissible evidence
on legal causation to create a triable issue. On summary judgment, the
parties offered the court two starkly different expert perspectives: There
was, on the one hand, the view presented by Drs. Compton and Fitzgerald
that J&J obtained talc ore from sources contaminated with asbestos during
the exposure period, a premise from which these experts draw the inference
that asbestos was present in JBP when Doug Strobel used it. On the other
hand, there was the view presented by Dr. Sanchez that J&J sorted and
screened its ore in the mining process to ensure only the most pristine talc
was used for cosmetic products, and that suppliers were subject to strict
testing requirements—established under an FDA-approved testing protocol—
to confirm that source ore used to make JBP was asbestos-free.
Which of these competing views to accept must be decided at trial.
Both camps of expert opinion extensively analyze historical records going
back many decades, including government reports, published articles, and
internal J&J memoranda, and arrive at opposite conclusions. One
fundamental difference between the Fitzgerald and Compton perspective, on
the one hand, and the Sanchez perspective, on the other, is in the respective
methodologies the experts’ laboratories chose to use in testing samples of talc
ore. Dr. Compton’s lab relied on a combination of XRD and TEM utilizing
17
microscopy equipment capable of both EDX and SAED, a testing approach
Dr. Compton describes as generally accepted. Dr. Fitzgerald’s laboratory
used a combination of XRD and TEM with SAED; according to him, the
approach used by his lab is in accord with Environmental Protection Agency
(EPA) guidelines and published authority in the field of microscopy. The
TEM-based microscopy testing protocols used by Drs. Fitzgerald and
Compton are sensitive enough to produce images at the level of individual
asbestos fibers.
Dr. Sanchez, by contrast, believes there is no generally acceptable
methodology for TEM analysis. He prefers a combination of XRD and PLM,
an approach approved by the FDA that his lab, RJ Lee Group, used.
According to Dr. Sanchez, only by using this method can it be determined
whether the sample ore being examined has a sufficient population of fiber
bundles to indicate the presence of asbestiform fibers. In effect, he believes,
the ultrasensitivity of TEM analysis is also its weakness. Without looking for
populations of fibers of a specified size9 that have asbestiform habit,
9 Dr. Sanchez uses a definition of asbestos that requires fibers to have
very specific dimensions. In his view, a population of fibers having
asbestiform morphology generally exhibits several characteristics, including
mean aspect ratios that are in the range of 20:1 to 100:1 for fibers greater
than 5 µm long; that are less than 0.5 µm wide; and that have at least two or
more of the following additional features: (1) parallel fibers occurring in
bundles, (2) fiber bundles displaying splayed ends, (3) matted masses of
individual fibers, and (4) fibers showing curvature. Dr. Fitzgerald believes
that Dr. Sanchez’s use of fiber populations and specified dimensions is an
artificial way of excluding fibers less than 5 µm long that should be counted
as asbestos structures. We note this point of definitional disagreement
appears to be consistent with what has been reported about areas where
consensus is lacking among causation experts in asbestos litigation. (See
3 Faigman et al., Modern Scientific Evidence (2020–2021 ed.) Areas of
scientific disagreement—Mesothelioma, § 26:28 [[“t]here is . . . disagreement
18
Dr. Sanchez believes, the “cleavage” in an individual fiber can easily be
mistaken for an asbestiform fiber, generating a false positive test.10
Whatever the merits of this line of critique, it goes to the weight and not the
admissibility of the opinions offered by Drs. Fitzgerald and Compton
confirming the presence of asbestos in Italian and Vermont source ore.
1. The Colgate-Palmolive Cases: Berg and Lyons
The trial court acknowledged that the Strobels presented competent,
admissible evidence that there was asbestos in the Italian, Vermont and
Chinese source ore used by J&J but concluded that was not enough to create
a triable issue of fact. Relying primarily on Berg v. Colgate-Palmolive Co.
(2019) 42 Cal.App.5th 630 (Berg), the court reasoned that without evidence
that there was asbestos in any retail JBP product, as milled and formulated
[among experts] regarding the role of short (<5 µm) asbestos fibers in the
causation of mesothelioma”].)
10 Dr. Fitzgerald strongly disagrees with Dr. Sanchez’s “cleavage
fragment” theory. “I have reviewed numerous reports from Dr. Sanchez’s
laboratory,” Dr. Fitzgerald states, “and, more often than not, structures are
deemed ‘cleavage fragments’ . . . . In the calculations of concentrations on
such reports, cleavage fragments are tabulated as non-asbestos, and
therefore not counted.” According to Dr. Fitzgerald, “[t]his practice is
completely contradictory from the intent and letter of regulation specifying
counting protocols for airborne asbestos.” Thus, while Dr. Sanchez suggests
that Dr. Fitzgerald’s approach generates false positives, Dr. Fitzgerald
suggests that Dr. Sanchez’s approach generates false negatives.
Here too we have a difference of views between the opposing experts
that is consistent with reported lack of consensus among causation experts in
asbestos litigation generally. (See 3 Faigman et al., Modern Scientific
Evidence, supra, Areas of scientific disagreement—Talc, mesothelioma and
ovarian cancer, § 26:32, fns. omitted [“Experts disagree as to whether
cosmetic talcum powder is contaminated with asbestiform minerals. Some
have analyzed these samples and reported finding asbestos fibers, whereas
others have not. The issue is clouded by the distinction between amphibole
asbestos and amphibole cleavage fragments.”].)
19
into JBP in the years 1951 to 2014, no reasonable jury could conclude that
Doug Strobel’s use of JBP during those years exposed him to asbestos. We
disagree. This case is more like Lyons v. Colgate-Palmolive Co. (2017)
16 Cal.App.5th 463 (Lyons), which reversed a summary judgment grant for
the defense in a case involving alleged exposure to asbestos in cosmetic
talcum powder.
In Berg, the plaintiff sued Colgate-Palmolive in 2017 claiming that his
exposure many years before to a talc shave product once sold by Colgate-
Palmolive’s corporate predecessor, the Mennen company, was a substantial
factor in causing him to develop mesothelioma. (Berg, supra, 42 Cal.App.5th
at p. 632.) The proof showed that, as a teenager, plaintiff Berg had been
exposed to Mennen’s talc shave product for a three- or four-year period
between 1959 and 1961 or 1962, and during that period, he had used four to
six containers of it. (Ibid.) The proof also showed that, during his life,
plaintiff Berg “was exposed to other products that contained asbestos as part
of their design, such as cigarettes with asbestos-containing filters.” (Id. at
p. 636.)
There, as in this case, the defendant built its case for lack of causation
upon an opinion from Dr. Sanchez, who defined asbestos as a “ ‘group of six
naturally occurring, highly fibrous silicate minerals’ ” that, “ ‘when
crystallized in a rare asbestiform habit’—‘likely account[ing] for less than 1%
of the known world occurrences of each mineral’—‘are regulated as
asbestos.’ ” (Berg, supra, 42 Cal.App.5th at p. 632.) “Relying on studies by
other researchers and his own testing, [Dr. Sanchez] opined that Mennen
Shave Talc was ‘free of asbestos’ and, even if some of the raw talc sourced to
make the product was contaminated with asbestos, there was no legitimate
scientific basis on which to conclude that any particular container of shave
20
talc was contaminated.” (Ibid.) And there, as here, the plaintiff relied on an
opinion from Dr. Fitzgerald, who testified that the raw talc from the mines
where Mennen sourced talc ore contained asbestos. (Id. at pp. 632–633.)
Dr. Fitzgerald also tested Mennen’s shaving talc product in 2016 and 2018—
nearly 60 years after plaintiff Berg’s last exposure to the product—in
containers that “looked like” the ones the plaintiff used decades before. (Id.
at pp. 633, 636.) The tested samples of Mennen shave talc revealed
“ ‘countable structures of amphibole’ minerals, the majority of which ‘were
clearly asbestiform in crystalline habit.’ ” (Id. at p. 633.)
On that record, the Court of Appeal affirmed a summary judgment
grant for Colgate-Palmolive, pointing out that plaintiff Berg had established
no more than a possibility he had been exposed to asbestos in the accused
Mennen product. “[E]ven assuming that some talc from the North Carolina
and Italy mines contained some level of asbestos,” the trial court said, “the
Fitzgerald declaration fails to support a conclusion that all or most of the
Mennen Shave Talc containers sold from 1959 to 1962 contained asbestos.”
(Berg, supra, 42 Cal.App.5th at p. 636.) Because “[t]he testing of the talc on
which Fitzgerald relies, both his own and others’, occurred decades after the
period of Berg’s use,” the court concluded, “Berg’s testimony that the
containers Fitzgerald tested looked like the ones he used . . . falls far short of
establishing that any containers of Mennen Shave Talc sold between 1959
and 1961 or 1962 contained asbestos, much less that it is more likely than not
that the containers Berg used contained asbestos.” (Ibid.)
In Lyons, on the other hand, the appellate court reversed a summary
judgment grant on a record where the “[p]laintiff alleged and at her
deposition testified that she used” defendant Colgate-Palmolive’s “Cashmere
Bouquet talcum powder from the early 1950’s to the early 1970’s.” (Lyons,
21
supra, 16 Cal.App.5th at p. 465.) After decades of applying Colgate-
Palmolive’s talcum powder regularly to herself upon bathing, plaintiff Lyons
was diagnosed with mesothelioma in 2015, the same diagnosis Doug Strobel
received in this case. (Ibid.) Although Lyons did not keep any of the
containers of talcum powder that she had used and she had no evidence
showing positive tests for asbestos in Cashmere Bouquet sold at retail, here
too like Doug Strobel, she presented a declaration from Dr. Fitzgerald
reporting positive test results for asbestos in raw talc taken from three mines
used by Colgate-Palmolive as sources of ore for the manufacture of Cashmere
Bouquet, including the Val Chisone mine in Italy. (Id. at pp. 465–466.)
Dr. Fitzgerald proffered testimony that his lab conducted bulk testing of
Cashmere Bouquet product and concluded that “[t]he results of such testing
are consistent with the makeup of the product, the ore, and the geology of the
talc sources used by its manufacturer, Colgate.” (Id. at p. 467.)
Colgate-Palmolive contended Dr. Fitzgerald’s declaration supported
nothing more than a possibility of some asbestos in some Cashmere Bouquet
sold at retail at some point in time, which left to conjecture whether the
talcum powder the plaintiff used exposed her to asbestos. (Lyons, supra,
16 Cal.App.5th at pp. 467–468.) In support of its position, Colgate-Palmolive
argued that Dr. Fitzgerald’s testing of retail product had not been done on
any tins of talcum powder that the plaintiff actually used and that his
generally stated opinion as to the presence of asbestos in all Cashmere
Bouquet lacked foundation. (Ibid.) The appellate court saw no basis for the
evidentiary attack. It pointed to Dr. Fitzgerald’s opinion that “the 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
22
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.” (Id. at p. 469.) “Rather,” the court
held, “there is a sufficient basis for the ‘inference[] reasonably deducible from
the evidence’ that all or most of the Cashmere Bouquet that plaintiff used
almost daily for 20 years contained harmful asbestos.” (Ibid.)
As in Lyons, the summary judgment record here shows long term use of
a talcum powder product alleged to contain asbestos by a mesothelioma
sufferer who was not exposed to any other known source of asbestos above
background asbestos levels that are ever-present in the environment,
together with expert testimony reporting positive test results for the presence
in the source ore used to manufacture the product. In the absence of evidence
explaining how asbestos in the source ore would have been eliminated in the
process of milling talc, that is enough to support more than a mere possibility
that the accused product here, JBP, was a substantial factor in causing Doug
Strobel to develop mesothelioma. Berg, by contrast, was a short-term use
case in which the evidence tying the actual product the plaintiff used to the
presence of asbestos in the product sold by the defendant during the exposure
period was dubious. “The only basis on which to conclude that the samples
tested were of the correct vintage was Berg’s testimony that the containers
Fitzgerald tested looked like the ones he used.” (Berg, supra, 42 Cal.App.5th
at p. 636.) Because of the evidence of long-term usage in this case, and
because, as we explain below, Dr. Fitzgerald fairly draws the inference on
this record that JBP of a vintage dating from within the exposure period
contained asbestos, there is no such evidentiary gap in this case.
2. The Trial Court’s Evidentiary Rulings
In Lyons and in this case, the plaintiff relied on more than simply an
inference from the use of asbestos-positive sources of raw talc. Dr. Fitzgerald
23
reported asbestos-positive tests of sample JBP that were “consistent with”
the use of asbestos-contaminated raw talc. (Lyons, supra, 16 Cal.App.5th at
p. 467.) J&J contends that, on this critical point, the Strobels offer nothing
more than hearsay from Dr. Longo about which Dr. Fitzgerald lacks personal
knowledge. This line of argument tracks the trial court’s reasoning. Without
Dr. Longo’s hearsay opinion, the trial court ruled, the only evidence of
asbestos in samples of JBP offered for retail sale comes from Dr. Fitzgerald’s
testing of five canisters of JBP taken from J&J’s historical archives. But four
of those five canisters date from periods in time before Doug Strobel was born
in 1951, and for the only canister dating from after 1951, Dr. Fitzgerald
reported no test results. As a result, the court ruled, a fair inference may be
drawn that the only samples of JBP tested by Dr. Fitzgerald dating from
within Doug Strobel’s lifetime tested negative for asbestos. In the absence of
proof that the JBP actually marketed during the exposure period contained
asbestos, according to the trial court, the Strobels were left with only
inadmissible case-specific hearsay under Sanchez to establish exposure to an
asbestos-containing product under Rutherford, supra, 16 Cal.4th 953.11 Here,
too, we disagree.
a. Standard of Review
Trial courts always enjoy wide discretion to rule upon evidentiary
objections. That is why most appellate courts apply an abuse of discretion
11 J&J objected to Dr. Fitzgerald’s declaration—along with proffered
testimony from all of the Strobels’ other experts—in part on lack of
foundation grounds. As we read the trial court’s rulings on J&J’s evidentiary
objections, the lack of foundation aspect of its exclusion of Dr. Fitzgerald’s
proffered opinion rests on its Sanchez ruling, and nothing more. Beyond
that, “it is not clear in what respect the trial court considered the foundation
for Fitzgerald’s opinion to be lacking and any deficiency in that respect is not
apparent.” (Lyons, supra, 16 Cal.App.5th at p. 468.)
24
standard of review to the trial court’s evidentiary rulings even in the context
of a summary judgment motion. (Carnes v. Superior Court, supra,
126 Cal.App.4th at p. 694.) But “[t]o determine if a court abused its
discretion, we must consider ‘the legal principles and policies that should
have guided the court’s actions.’ ” (Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 773 (Sargon).) “[T]he court’s
discretion” to exclude expert testimony in particular “is not unlimited” where
it implicates a party’s ability to present its case. (Ibid.) “Rather, it must be
exercised within the confines of the applicable legal principles.” (Ibid.)
Quoting from Reid v. Google, Inc. (2010) 50 Cal.4th 512, the Strobels
urge us to review the trial court’s evidentiary rulings de novo because we are
dealing with a paper record on summary judgment. (Id. at p. 535 [“ ‘Because
summary judgment is decided entirely on the papers, and presents only a
question of law, it affords very few occasions, if any, for truly discretionary
rulings on questions of evidence. Nor is the trial court often, if ever, in a
better position than a reviewing court to weigh the discretionary factors.’ ”].)
But the language they rely upon merely quotes from the Court of Appeal’s
superseded opinion in Reid. The Reid court expressly declined to reach the
issue of “whether a trial court’s rulings on evidentiary objections based on
papers alone in summary judgment proceedings are reviewed for abuse of
discretion or reviewed de novo.” (Ibid.)
We see no reason to take a step the Supreme Court has chosen not to
take. But while we decline the Strobels’ invitation to announce a generally
applicable de novo standard of review for evidentiary rulings on summary
judgment, we think the procedural setting we have here justifies de novo
review on this record. “ ‘The scope of [a trial court’s] discretion always
resides in the particular law being applied, i.e., in the “legal principles
25
governing the subject of [the] action . . . .” ’ ” (Sargon, supra, 55 Cal.4th at
p. 773.) Because the court’s rulings sustaining objections to the Strobels’
expert testimony rest, fundamentally, on the legal premises it adopted in
applying Sanchez, we will review these rulings independently.
b. People v. Sanchez and its Recent Progeny
“In Sanchez,” our Supreme Court “clarified the ‘proper application’ of
our evidentiary law as it relates to the intersection of hearsay and expert
testimony.” (People v. Veamatahau (2020) 9 Cal.5th 16, 25 (Veamatahau).)
The Sanchez court begins its analysis by explaining that “[t]he hearsay rule
has traditionally not barred an expert’s testimony regarding his general
knowledge in his field of expertise.” (Sanchez, supra, 63 Cal.4th at p. 676.)
That starting premise is crucial to a proper understanding of the Sanchez
rule governing case-specific hearsay. Sanchez accommodates the pragmatic
reality that, by dint of what experts do—they draw upon training in,
experience with, and study of knowledge produced by others—this special
category of witnesses must of necessity rely on hearsay sources.
“Because experts rely on hearsay knowledge and because a jury ‘must
independently evaluate the probative value of an expert’s testimony,’
including by assessing the basis of the expert’s opinion, the expert is entitled
to tell the jury the basis or ‘ “matter” upon which his opinion rests.’ ”
(Veamatahau, supra, 9 Cal.5th at p. 25.) But rather than let an expert freely
place before the fact finder any hearsay “matter” that may be characterized
as a basis of his or her opinion so long as it is not admitted for the truth, the
Sanchez court refined the rules governing admission of expert testimony to
make clear that such testimony may convey hearsay only if it is (1) general
knowledge among those in the expert’s field, or (2) independently provable by
admissible evidence. (Sanchez, supra, 63 Cal.4th at pp. 676–677.)
26
Under Evidence Code sections 801, subdivision (b), and 802, Sanchez
holds, not only can an expert “rely on hearsay in forming an opinion,” but he
“may tell the jury in general terms that he did so.” (Sanchez, supra,
63 Cal.4th at p. 685.) In so holding, Sanchez jettisons the need for the fact
finder to recognize and maintain the elusive distinction between information
coming from an expert that may be fully relied upon for the truth of contested
facts, versus information that has been admitted for the limited purpose of
evaluating the basis of the expert’s opinion. (People v. Nieves (2021)
11 Cal.5th 404, 440 [“In Sanchez, we disapproved of the conclusion in prior
decisions such as People v. Gardeley (1996) 14 Cal.4th 605, 618, that expert
testimony about case-specific hearsay is not admitted for its truth and thus
not subject to hearsay rules. (Sanchez, at p. 686, fn. 13.)”].)
In place of the old, limited admissibility regime under the Gardeley line
of cases, Sanchez restores the traditional common law distinction between
inadmissible case-specific hearsay and admissible background knowledge.
(Veamatahau, supra, 9 Cal.5th at p. 25.) After Sanchez, what was once
known as “basis” testimony coming from experts is now handled as a
threshold matter of admissibility, rather than by assigning different
probative purposes to already admitted evidence. An expert’s testimony to
background information is admissible—as it has always been, either as
nonhearsay to the extent it rests on the expert’s personal knowledge (ibid.),
or under a hearsay exception to the extent it rests on information provided by
others (id. at pp. 25–26 & fn. 1)—while testimony to case-specific facts is
subject to exclusion, unless independently proved by admissible evidence (id.
at p. 26).
“Case-specific facts are those relating to the particular events and
participants alleged to have been involved in the case being tried.” (Sanchez,
27
supra, 63 Cal.4th at p. 676.) Two recent California Supreme Court cases—
neither of which the trial court had the benefit of considering—elucidate the
proper application of this concept. At issue in the first of these cases,
Veamatahau, supra, 9 Cal.5th 16, was the admissibility of an expert opinion
from a prosecution criminalist identifying pills found in the possession of the
defendant as alprazolam. (Id. at p. 22.) The expert, a criminalist named
Scott Rienhardt, “held a degree in ‘chemistry, with an emphasis in analytical
chemistry[,]’ . . . had previously worked for the Drug Enforcement
Administration,” and over the course of his career had tested for controlled
substances thousands of times, and had identified alprazolam “ ‘hundreds’ of
times.” (Ibid.) But despite his credentials as an analytical chemist,
Rienhardt conducted no laboratory testing of the pills at issue. Instead, he
matched the shape and markings on the pills to the images of pills in a
database known as Ident-A-Drug. (Id. at pp. 23, 31.) On direct examination,
Rienhardt testified that “it is standard practice to identify pharmaceutical
pills by visual inspection, whereby one compares markings found on the pills
against a database of imprints that the [FDA] requires to be placed on tablets
containing controlled substances. He then testified that he performed this
visual inspection on the pills seized from defendant and formed the opinion
that they contained alprazolam.” (Id. at pp. 26–27.) Then, on cross-
examination, he went further, testifying more specifically that the
Ident-A-Drug database “ ‘tell[s] you’ ” that pills displaying a certain imprint
“ ‘contain[] alprazolam, 2 milligrams.’ ” (Id. at p. 27.)
Rienhardt’s visual match of the seized drugs to the markings for
alprazolam in the database, the court held, was not hearsay at all because he
personally did the matching, and to the extent he drew on the accumulated
knowledge of others reflected in the database to draw his ultimate conclusion
28
identifying the seized drugs as alprazolam, that came within the hearsay
exception for background knowledge. (Veamatahau, supra, 9 Cal.5th at
p. 27.) As the court saw it, Rienhardt did nothing more than employ his
expertise to gather pertinent information and selectively choose and apply a
methodology commonly used by experts in his field for analysis. (Id. at p. 29.)
The court rejected the argument that, by relying on the Ident-A-Drug
database, Rienhardt’s ultimate conclusion merely conveyed to the jury the
opinions of third parties. “Simply because the Ident-A-Drug Web site served
as the basis for the expert’s ultimate opinion does not make information from
the site case-specific,” the court observed. (Id. at p. 31.) “Information from
the Ident-A-Drug database—that pills matching a certain description contain
opioids—was hearsay but not case specific. It is no more case specific than if
an expert divulged the equation—into which she entered the length of the
skid marks she measured at the scene of the accident—to come to the
conclusion that a defendant was traveling at the speed of 100 miles per hour
before the crash.” (Ibid.)
Resisting this conclusion, the defendant in Veamatahau contended that
if an expert may simply consult a third-party source for his ultimate
conclusion and convey that third party’s conclusion to the fact finder as
background information, the trial court’s ability to vet the reliability of
sources of third-party information “would be ‘undercut’ because the expert
would be permitted to ‘essentially vouch for the reliability of a source.’ ”
(Veamatahau, supra, 9 Cal.5th at p. 32.) This paints a “false dichotomy,” the
court said. (Ibid.) Citing the backstop screening test for admissibility that
trial courts must always undertake under the Evidence Code, the court
explained that “[i]n fact, in law, and in practice, testimony admitted under
section 801 or 802 [of the Evidence Code] is subject to scrutiny on reliability
29
grounds by the court and opposing counsel. Section 801 specifies that the
‘matter’ on which an expert relies must be ‘of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject to which his
testimony relates.’ ([Evid. Code,] § 801, subd. (b).) Thus, an expert must
establish that the basis for his or her opinion is sufficiently reliable such that
it ‘reasonably may be relied upon’ by experts testifying on the same subject.”
(Veamatahau, at p. 32.)
While Veamatahau illustrates the latitude experts are still given post-
Sanchez to testify to background information relied upon in the formation of
their opinions, a second Sanchez follow-on case, People v. Valencia (2021)
11 Cal.5th 818 (Valencia), shows how the rule barring case-specific hearsay
places limits on that practice. Valencia affirms the exclusion of case-specific
hearsay in a gang prosecution case. There, the defendant faced charges
under the California Street Terrorism Enforcement and Prevention Act
(STEP Act; Pen. Code, § 186.20 et seq.), a statute requiring the prosecution to
prove, among other things, “a pattern of criminal gang activity” by the
defendant or his gang associates. (Valencia, at pp. 828–829.) The defendant
in Valencia was alleged to be a member of a gang known as Arvina 13. (Id. at
p. 827.) To prove the requisite “pattern of criminal gang activity” by
Arvina 13, Officer Ryan Calderon, an expert in gang activity, testified that
members of Arvina 13 had committed certain predicate crimes on specified
dates. (Ibid.)
Appealing his conviction and sentencing enhancements imposed under
the STEP Act, the defendant argued that Officer Calderon’s testimony was
inadmissible case-specific hearsay under Sanchez. The California Supreme
Court agreed and affirmed the reversal of the challenged conviction and
sentence. (Valencia, supra, 11 Cal.5th at pp. 837–839, 841.) Picking up
30
where Veamatahau left off, the Valencia court further expounded upon the
concept of background facts, as follows: “Hallmarks of background facts are
that they are generally accepted by experts in their field of expertise, and
that they will usually be applicable to all similar cases. Permitting experts to
relate background hearsay information is analytically based on the safeguard
of reliability. A level of reliability is provided when an expert lays foundation
as to facts grounded in his or her expertise and generally accepted in that
field.” (Id. at p. 836.) On the other hand, the court held, “if experts give
testimony that goes beyond their own experience or beyond principles
generally accepted in their field, the justifications for allowing greater
evidentiary latitude cease to apply.” (Ibid.)
The predicate crimes testimony from Officer Calderon did not pass this
test. Sanchez itself acknowledges, by the use of a specific example involving
gang prosecution, that “general testimony about a gang’s behavior, history,
territory, and general operations is usually admissible. (See Sanchez, supra,
63 Cal.4th at p. 698.) The same is true of the gang’s name, symbols, and
colors. All this background information can be admitted through an expert’s
testimony, even if hearsay, if there is evidence that it is considered reliable
and accurate by experts on the gang.” (Valencia, supra, 11 Cal.5th at p. 838.)
Officer Calderon’s testimony about predicate crimes committed by Arvina 13
members—which was based on nothing more than “conversations with other
officers and a review of police reports” (id. at p. 827)—had no such foundation
in specialized knowledge generally accepted in his field or otherwise
grounded in his expertise. “The proper role of expert testimony,” the court
held, “is to help the jury understand the significance of case-specific facts
31
proven by competent evidence, not to place before the jury otherwise
unsubstantiated assertions of fact.” (Id. at p. 837.)12
c. Dr. Fitzgerald’s Opinion
J&J’s summary judgment motion took a rifle-shot approach to the
evidence of causation in this case, primarily targeting the reliance the
Strobels’ experts placed on Dr. Longo’s positive tests for asbestos in JBP.
J&J objected on various grounds to the opinions offered by all of the Strobels’
experts, but the principal focus of these objections—and most of the parties’
attention in their appellate briefs—is on Dr. Fitzgerald’s opinion.13 “[O]nly
with the particular facts of Longo’s testing in evidence,” J&J argues, could
Dr. Fitzgerald “add general background knowledge to opine on their
significance” in a way that is permissible under Sanchez. “Fitzgerald did not
merely mention Longo without explanation on a list of reference materials,”
J&J argues. He “spelled out Longo’s finding of asbestos contamination in 18
particular containers of JBP” and other J&J talcum powder.
12 The parties discuss two STEP Act cases applying Sanchez (People v.
Bermudez (2020) 45 Cal.App.5th 358, disapproved in Valencia, supra,
11 Cal.5th at p. 839, fn. 17; and our decision in People v. Thompkins (2020)
50 Cal.App.5th 365), with the Strobels relying on Bermudez and
distinguishing Thompkins, and J&J relying on Thompkins and
distinguishing Bermudez. Bermudez and Thompkins represent two sides in a
split of appellate authority that was resolved in Valencia. (Valencia, at
p. 839, fn. 17.) In light of Valencia, we need not address either case.
13J&J claims the Strobels do not contest the trial court’s evidentiary
rulings with respect to Drs. Cohen and Finkelstein and Mr. Ay. That is not
how we read the record. The title of the principal section in the Strobels’
opening brief addressing the court’s evidentiary rulings focuses on the
exclusion of “[e]xpert [t]estimony,” and is not directed solely to Dr. Fitzgerald.
And neither is the substance of the argument presented in this section of the
opening brief limited to Dr. Fitzgerald. We therefore address the trial court’s
evidentiary rulings pertaining to Drs. Cohen and Finkelstein and Mr. Ay
below in part II.B.2.d.
32
With J&J, we agree the trial court was correct to rule that
Dr. Fitzgerald’s opinion is inadmissible case-specific hearsay “to the extent
that” he relates the specifics of Dr. Longo’s testing data and results.
Dr. Fitzgerald’s reliance on Dr. Longo cannot be analogized to the
criminalist’s use of a database built from an FDA-approved drug
classification system and generally used by forensic experts. It has long been
settled that an expert may not simply repeat a third party’s opinion and offer
it up as confirmatory of his own. (Whitfield v. Roth (1974) 10 Cal.3d 874, 895
[“doctors can testify as to the basis of their opinion [citation], but this is not
intended to be a channel by which testifying doctors can place the opinion of
innumerable out-of-court doctors before the jury”]; People v. Campos (1995)
32 Cal.App.4th 304, 308 [“An expert witness may not, on direct examination,
reveal the content of reports prepared or opinions expressed by nontestifying
experts.”].) The Strobels argue that even if Dr. Fitzgerald’s reliance on the
conclusion Dr. Longo drew from his testing JBP samples is inadmissible, his
reliance on the underlying testing data and photographs used by Dr. Longo is
properly admissible. We do not see this as a meaningful distinction. The
specifics Dr. Fitzgerald presents from Dr. Longo’s lab work—the numbers of
samples that were positive for asbestos, and the numbers of asbestiform
structures in those samples—simply report his results and thus
impermissibly put before the finder of fact Dr. Longo’s conclusion by proxy
(see Sanchez, supra, 63 Cal.4th at p. 685 [expert may rely on case-specific
hearsay in forming his opinion and “tell the jury in general terms that he did
so”]), and Dr. Fitzgerald offers no independent interpretation of this
information.
While the cases announcing this prohibition on rote repetition of the
opinions of others predate Sanchez, we think the rule they enunciate remains
33
vital post-Sanchez. An absent witness’s opinion may not be smuggled into
evidence through an expert by dressing it up as background information.
Veamatahau explains, as does Valencia, that background evidence must be
generally relied upon by experts in the witnesses’ field of expertise. While
there may be situations where a much-published but absent expert whose
views are well accepted in a particular field are repeated by a testifying
expert to establish the premises of a proffered expert opinion, this is not one
of them. The Strobels make no showing that Dr. Longo has published
anything or that his work is generally relied upon by others. For
Dr. Fitzgerald to testify that Dr. Longo detected specific quantities of
asbestiform fibers in JBP samples dating from within the exposure period is
no different, we think, than Officer Calderon testifying to the content of
police reports to establish the historical fact that gang crimes were
committed by members of Arvina 13 on specific dates in Valencia.
That does not end the inquiry, however. In its zeal to attack what it
characterizes repeatedly as Dr. Longo’s “made-for-litigation” testing results,
J&J fails to account for the full breadth of the evidence the Strobels put
forward in opposition to summary judgment. Both Dr. Sanchez and
Dr. Fitzgerald selected and drew upon various published materials from
government agencies and professional standard-setting groups,14 published
Dr. Fitzgerald—EPA; FDA; International Mineralogical Association;
14
United States Geological Survey; Vermont Geological Survey. Dr. Sanchez—
American Society for Testing and Materials; Chinese Pharmacopoeia;
Cosmetic, Toiletry, and Fragrance Association; EPA; FDA; International
Agency for Research on Cancer; International Organization for
Standardization; U.S. Pharmacopeial Convention Talc Expert Panel.
34
academic articles,15 published reports of “historical” testing,16 as well as
testing data from their own labs. Dr. Fitzgerald and Dr. Sanchez disagree on
the best tools to use for the detection of asbestos (TEM plus SAED and either
or both of XRD and EDX [Dr. Fitzgerald], or XRD and PLM [Dr. Sanchez]),
but both agree on what to look for: Asbestiform materials of a specific type—
anthophyllite, tremolite or chrysotile. They draw different conclusions about
whether the offending asbestiform minerals may be found in JBP, owing
largely to their different views of the proper methods for counting asbestiform
structures in tested samples of talc source ore and milled product. But this
dispute cannot be resolved on summary judgment by focusing exclusively on
whether there was direct evidence of asbestos in milled JBP during the
exposure period.
Even without Dr. Longo’s testing data and results, we are satisfied that
Dr. Fitzgerald formulated his opinion based upon principles generally
accepted in his area of expertise and that he applied those principles upon a
proper evidentiary foundation. Ultimately, the exposure issue in this case
will turn on principles of geology, mineralogy and asbestos testing.
Dr. Fitzgerald, a geologist with special expertise in asbestos detection, traced
asbestiform minerals from the sources of raw talc J&J used to manufacture
15 Dr. Fitzgerald—e.g., Deer, Howie, and Zussman (1962); Groppo and
Compagnoni (2007); Hawthorne (2012); Lollino (2004); McCarthy (2006);
Newman (1995); Peretti (1966); Rohl and Langer (1974); Sandrone and
Zucchetti (1988); Shultz and Williams (1942); Van Gosen (2004); Webber
(1998). Dr. Sanchez—e.g., Blount (1991); Boundy (1979); Chidester (1951,
1964); Coggiola (2003); Li (1999); McCrone (1977); Pooley (1972); Rubino
(1976); Sandrone and Zucchetti (1988); Wang (2003, 2006); Yan (2003).
16Dr. Fitzgerald—Colorado School of Mines (1971); Gail (1979); Johns
Manville (1973); Lewin (1972); McCrone (1971); Pooley (1972); Shultz and
Williams (1942). Dr. Sanchez—Buzon (2016); Eiermann (1976); Lewin
(1973).
35
JBP to the JBP Doug Strobel used. In doing so, he drew inferences from a
wide variety of data sources. For example, Dr. Fitzgerald cites and relies on
a 1972 FDA-sponsored study by Professor Seymour Lewin of New York
University (the NYU Study) examining “195 standard, commercial cosmetic
talc products,” many of which he found to “contain[] detectable amounts of
asbestiform minerals,” as well as a 1976 article published by A.N. Rohl and
A.M. Langer (Rohl & Langer) reporting on the testing of 20 consumer
products labeled as talc or talcum powder, including body powders and baby
powders.17 Of the 20 product tests reported in Rohl & Langer, according to
Dr. Fitzgerald, 10 found detectable amounts of tremolite and anthophyllite,
principally asbestiform.18 In addition to the NYU Study and Rohl & Langer,
17 It seems clear that Dr. Fitzgerald drew upon his knowledge as an
asbestos testing expert in selecting these third-party source documents for
their pertinence to his opinion. Consider, for example, his discussion of why
the electron microscopy testing methodology that generated the results
reported in Rohl & Langer was, in his view, superior to older light microscopy
techniques. “The authors noted that while some asbestos was resolvable by
light microscopy, most samples were too fine-grained, with particle
dimensions [too] small for light microscopy, and that ‘naturally occurring
asbestiform minerals often lie below the working resolution capabilities of
light microscope’. They further noted that by comparing the results of optical
microscopy and quantitative XRD with those from TEM analysis they
observed that large numbers of fibers could go undetected by the less
sensitive techniques. Both asbestiform anthophyllite and asbestiform
tremolite were found in that testing of cosmetic talcum powder, with the
anthophyllite described as having greater length to width (aspect) ratios than
the tremolite asbestos. Furthermore, the anthophyllite asbestos
concentration was reported as 4 to 5 times that of the asbestiform tremolite
in that product, as tested and reported over 40 years ago.”
18Dr. Sanchez claims that the FDA later disclaimed these positive
findings for asbestos based on follow-up “light microscopy and differential
thermal analysis” testing. But Dr. Fitzgerald disagrees that the FDA’s
follow-up testing undercut Professor Lewin’s original findings. Among
36
Dr. Fitzgerald also relies on the FDA’s reported findings in 2019 of JBP
manufactured from Chinese talc (the 2019 FDA Report).
The trial court seems to have been aware that Dr. Longo’s testing was
not the sole source of third-party information relied upon by Dr. Fitzgerald,
because, after concluding Dr. Fitzgerald’s reliance on Dr. Longo was
inadmissible under Sanchez, the court went on to emphasize in vague terms
that its ruling on this point embraced other third-party documents as well.
Without discussing, identifying or analyzing any of these documents, the trial
court ruled that they were all inadmissible case-specific hearsay. Some of the
third-party source material relied upon by both Dr. Fitzgerald and
Dr. Sanchez may well be excludable on hearsay grounds when offered at
trial.19 But even assuming the court’s broad-brush treatment of the “various
several reasons Dr. Fitzgerald gives for disagreeing with Dr. Sanchez on this
point is that the FDA did not use electron microscopy. As evidence offered by
the nonmoving party in opposition to summary judgment, Dr. Fitzgerald’s
take on the NYU Study must be credited over that of Dr. Sanchez, at least at
this stage of the proceedings.
19 For example, in a discussion of talc ore from a mine in Vermont
known as the Johnson Mine, Dr. Fitzgerald cites deposition testimony in
other litigation from Dr. Glen Hemstock as well as a series of documents
“pertaining to testing of Emtal ore, talc and plant facilities in the mid-to-late
1970s that detected the presence of asbestos . . . .” Dr. Hemstock’s deposition
testimony appears to be objectionable for the same reasons Dr. Longo’s
testimony in other litigation is objectionable. There is also no indication that
any of the Johnson Mine testing reports cited by Dr. Fitzgerald were
published or subjected to any other form of peer review.
Dr. Sanchez, for his part, cites testing of Vermont talc ore by “McCrone
Laboratories, RJ Lee Group, and other third-party testers comprising test
results covering J&J’s talcum powder for the past 40+ years.” Dr. Sanchez’s
testimony regarding testing by RJ Lee Group may be proper if he has
personal knowledge of it, but like Dr. Fitzgerald’s reference to testing of ore
from the Emtal mine, there is no indication that any of the third-party
37
documents from third parties” cited by Dr. Fitzgerald qualifies as a clear
enough exclusionary ruling to warrant treatment as a basis for the summary
judgment ruling before us, we think the court erred in ruling that all of the
third-party documents relied upon by Dr. Fitzgerald are inadmissible case-
specific hearsay and therefore excludable along with the proxy opinion from
Dr. Longo. Granted, some of the third-party documents Dr. Fitzgerald relies
upon are specific to the defendant (J&J) and to the accused product (JBP) in
this case, but that alone does not make them case-specific hearsay, since, as
the Veamatahau court pointed out, experts may always testify to ultimate
facts. (Evid. Code, § 805; Veamatahau, supra, 9 Cal.5th at p. 27.)
Rather, what is important is that the third-party documents chosen by
Dr. Fitzgerald qualify as source material that may be reasonably relied upon
by those in his field of expertise. (Veamatahau, supra, 9 Cal.5th at p. 27.)
Particularly when Dr. Fitzgerald’s declaration is read as a whole, we see
nothing in his proffered testimony to suggest that he is relying on “ ‘matter’ ”
that cannot be deemed “sufficiently reliable such that it ‘reasonably may be
relied upon’ by experts testifying on the same subject.” (Evid. Code, § 801,
subd. (b); Veamatahau, at p. 32.) J&J’s own expert, Dr. Sanchez, proffers an
opinion based on a “review of various governmental and academic studies on
talc sourced from Val Chisone/Val Germanasca, Italy, southern Vermont, and
Guangxi, China.” He even cites and discusses some of the same source
materials Dr. Fitzgerald cites. Because—apart from Dr. Longo’s test
results—most of the background material relied upon by Dr. Sanchez is
testing to which Dr. Sanchez makes general reference was personally known
to him, published or otherwise subjected to some form of peer review.
We take no view of whether, on appropriate objection at trial, any of
the third-party sources relied upon by Drs. Fitzgerald or Sanchez may be
excludable on hearsay or other grounds, in whole or in part.
38
generically comparable to the background information Dr. Fitzgerald relies
upon, we think J&J has implicitly confirmed the reliability of Dr. Fitzgerald’s
sources by endorsing Dr. Sanchez’s reliance on sources of the same general
type.
J&J attempts to argue that, without Dr. Longo’s testing results,
Dr. Fitzgerald’s opinion rests on “ ‘ “assumptions of fact without evidentiary
support” ’ ” (Sargon, supra, 55 Cal.4th at p. 770) and is therefore inadmissible
as speculative under Sargon. We cannot agree. Dr. Fitzgerald traces
asbestos contamination from mined talc ore to milled JBP, drawing
inferences from a variety of data sources, including published papers,
government reports, internal J&J documents, testing of source ore by
Dr. Compton, as well as Dr. Fitzgerald’s own testing of archival J&J samples
of JBP. J&J has many points of disagreement with Dr. Fitzgerald, but none
exposes an “ ‘analytical gap between the data and the opinion proffered’ ” that
is “ ‘simply too great’ ” to be countenanced. (Sargon, at p. 771.) Under
Sargon, the trial court “does not resolve scientific controversies.” (Id. at
p. 772.) “Rather, it conducts a ‘circumscribed inquiry’ to ‘determine whether,
as a matter of logic, the studies and other information cited by experts
adequately support the conclusion that the expert’s general theory or
technique is valid.’ ” (Ibid.)
J&J argues there is a fatal gap in Dr. Fitzgerald’s logic—and hence in
the Strobels’ proof—because he reported positive tests for asbestos in archival
samples of JBP though the 1940’s, yet produced no such report for any
sample during Doug Strobel’s lifetime. We are not convinced this feature of
Dr. Fitzgerald’s opinion can bear the weight J&J places on it. Dr. Fitzgerald
confirmed through his own testing that there is asbestos contamination in
archival samples of JBP dating from the late 1940’s, which is consistent with
39
testing on samples of source ore from the Val Chisone and Val Germanasca
region conducted by him and by Dr. Compton.20 It is reasonable to infer from
these tests of Italian source ore that this contamination was still present in
JBP at least through 1968, when J&J shifted its sourcing of talc ore from
Italy to Vermont. And in light of the 2019 FDA Report, the NYU Study, and
Rohl & Langer, it seems fair to draw the further inference that asbestos was
present in JBP throughout the entire exposure period. Drawing the opposite
inference in favor of J&J, as the trial court did—based on a negative
inference that there is no proof of asbestos in JBP after 1951 based on the
absence of any positive asbestos test in archival samples from J&J post-
dating Doug Strobel’s birth—violates the fundamental rule that we must
construe the evidence liberally for the nonmoving party.
20 J&J argues that Dr. Compton’s testing approach, if scrutinized
properly, cannot be accepted as reliable for admissibility purposes because it
is not based upon “a methodology generally accepted in the scientific
community for identifying asbestos in cosmetic talc.” Dr. Compton’s “TEM
methodology . . . used to count ‘structures,’ ” J&J points out, “could not
distinguish an asbestos fiber from nonasbestiform particles.” In support of
this contention—a line of attack which, notably, J&J does not pursue with
respect to Dr. Fitzgerald (except to the extent Dr. Fitzgerald relies on
Dr. Longo)—J&J cites the Kelly test, an evidentiary screening tool designed
to test the reliability of novel methods of scientific proof for general
acceptance within the relevant scientific community. (People v. Kelly (1976)
17 Cal.3d 24, 30–31; see People v. Azcona (2020) 58 Cal.App.5th 504, 510
[“General acceptance means ‘a consensus drawn from a typical cross-section
of the relevant, qualified scientific community.’ ”].) This was not the basis for
the trial court’s exclusion of any of the Strobels’ expert testimony. We
therefore have no occasion to address the potential applicability of the Kelly
test or how that test may relate to reliability testing for purposes of Sanchez,
except to point out that both sides’ proffered expert testimony may be subject
to further screening at trial, including through an Evidence Code section 802
hearing should the trial court deem it appropriate to hold such a hearing.
40
J&J insists it is sheer conjecture to infer the presence of asbestiform
minerals in JBP from nothing more than the presence of these minerals in
talc ore used to manufacture JBP. Pointing to its own evidence, J&J claims
it “maintains the industry’s highest standards for the talc it uses to
manufacture its talcum powder products, including JBP”; its “[c]osmetic talc
is selectively mined, and talc ore is carefully sorted at different stages”; and
that “only about 5% of mined talc is selected for use as cosmetic talc.” J&J
also extols the “purity” of its “talc ore”, emphasizes that finding talc ore
accessory minerals in asbestiform habit is “rare”—occurring in less than
1 percent of the known occurrence of each mineral—and claims it “has long
conducted a regular monitoring program to test its talc supply using methods
that exceed industry and regulatory standards to confirm the talc is not
contaminated with asbestos.” Dr. Sanchez, whose opinion J&J principally
relied upon and the trial court accepted on summary judgment, pointed to no
evidence demonstrating that J&J’s sorting, screening and selectivity
processes are capable of weeding out from raw talc submicron-size
asbestiform particles or that it is even possible to achieve such “purity.” But
we acknowledge that these arguments could ultimately prevail at trial.
Although we would not describe the Strobels’ summary judgment showing on
legal causation as overwhelming, we see ample circumstantial evidentiary
support for the inference Dr. Fitzgerald draws that asbestos contamination
was persistently present in JBP throughout the exposure period.
d. The Opinions of Drs. Cohen and Finkelstein and Mr. Ay
Turning, finally, to the trial court’s rulings that the opinions from
Dr. Cohen, Dr. Finkelstein and Mr. Ay were inadmissible “to the extent” they
rely on Dr. Longo and other third-party sources of information concerning
whether JBP contained asbestos during the time Doug Strobel used it, we
conclude that those rulings were correct. Dr. Cohen and Dr. Finkelstein
41
show considerable familiarity with geology, mineralogy and asbestos testing,
but neither of them purports to be an expert in these areas. And while
Mr. Ay has some familiarity with asbestos testing, he has none in geology
and mineralogy or asbestos exposure from nonoccupational sources. Thus,
the trial court was within its discretion to rule that none of these witnesses is
competent to give testimony about the presence of asbestos in JBP. For any
of them to pass along third-party geological and mineralogical opinions
outside the ambit of their areas of expertise—without the qualifications
necessary to gauge the reliability of the information, and without any
independent ability to build upon it in formulating their own opinions—
amounts to allowing them to channel someone else’s views to the fact finder.
That has never been allowed (Whitfield v. Roth, supra, 10 Cal.3d at p. 895),
and is still not allowed, as Valencia illustrates. (See Valencia, supra,
11 Cal.5th at pp. 826, 836–840.)
Our holding with respect to Dr. Cohen, Dr. Finkelstein and Mr. Ay
should not be read to mean that, at trial, they may be barred from
mentioning the presence of asbestos in JBP, or the geology, mineralogy or
asbestos testing issues pertinent to that issue. Within their own ambits of
expertise, Dr. Cohen, Dr. Finkelstein and Mr. Ay each proffers an opinion
that is relevant to the ultimate question under Rutherford whether, taking
into account “the length, frequency, proximity and intensity of exposure, the
peculiar properties of [JBP], any other potential causes to which the disease
could be attributed,” along with other factors bearing on comparative fault,
Doug Strobel’s “inhalation of fibers from [JBP] [may] be deemed a
‘substantial factor’ in causing [his] cancer.” (Rutherford, supra, 16 Cal.4th at
p. 975.) Because there is likely to be some subject matter overlap in the
opinions offered by all of the Strobels’ causation experts, it should be kept in
42
mind that, for any expert relying on another expert outside his area of
expertise, the “distinction between generally accepted background
information and the supplying of case-specific facts is honored by the use of
hypothetical questions. ‘Using this technique,’ . . . [a]n examiner may ask an
expert to assume a certain set of case-specific facts for which there is
independent competent evidence, then ask the expert what conclusions the
expert would draw from those assumed facts.” (Sanchez, supra, 63 Cal.4th at
pp. 676–677.) Upon properly structured hypothetical questions, therefore,
Dr. Cohen, Dr. Finkelstein and Mr. Ay may be asked to assume the truth of
Dr. Fitzgerald’s view that JBP contained asbestos during the years Doug
Strobel used it, or any of the bases for his opinion, and on that foundation, to
offer their own opinions upon the closely related epidemiological, toxicological
or occupational health questions the finder of fact may be called upon to
address in resolving the broader issue of legal causation.
III. DISPOSITION
The order granting summary judgment and the judgment entered upon
it are reversed and the cause is remanded for further proceedings consistent
with this opinion. Jo Ann Strobel, prevailing appellant, shall recover the
Strobels’ costs on appeal.
STREETER, Acting P. J.
WE CONCUR:
TUCHER, J.*
BROWN, J.
*Presiding Justice of the Court of Appeal, First Appellate District,
Division Three, sitting by assignment pursuant to article VI, section 6 of the
California Constitution.
43
Trial Court: Solano County Superior Court
Trial Judge: Hon. Wendy G. Getty
Counsel: Brayton Purcell, Gilbert L. Purcell, Richard M. Grant,
Steven J. Patti, Christine A. Renken,
for Plaintiff and Appellant.
King & Spalding, Paul R. Johnson, Alexander G. Calfo,
Susan V. Vargas, Stacy L. Foster; Orrick Herrington &
Sutcliffe, Robert M. Loeb, pro hac vice, Nathan Dullum,
for Defendants and Respondents.
A159609