LAOSD Asbestos Cases ( 2020 )

Filed 1/22/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
LAOSD ASBESTOS CASES.
ANN PATRICE GIBBONS et B288031
al.,
JCCP No. 4674
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No.
v. BC644854)
JOHNSON & JOHNSON
CONSUMER INC.,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Steven J. Kleifield, Judge. Affirmed.
Waters, Kraus & Paul, Michael B. Gurien, for
Plaintiffs and Appellants.
King and Spalding, Paul R. Johnson and Julie E.
Romano; Orrick, Herrington & Sutcliffe, E. Joshua
Rosenkranz, Naomi J. Scotten. Ethan P. Fallon and Robert
M. Loeb for Defendant and Respondent
_____________________________________
INTRODUCTION
Plaintiffs and appellants Ann Patrice Gibbons and
James Randall Gibbons (collectively, appellants) contend the
Shower to Shower cosmetic powder and Johnson’s Baby
Powder Mrs. Gibbons used for two decades were
contaminated with asbestos and a substantial factor in
causing her mesothelioma. The products’ manufacturer,
defendant and respondent Johnson & Johnson Consumer
Inc. (respondent or JJCI), moved for summary judgment on
the basis of its expert’s conclusion, “to a reasonable degree of
scientific certainty,” that JJCI’s talcum powder and the talc
from its source mines did not contain asbestos. Respondent
contended appellants did not, and would not be able to,
establish it was more likely than not the talc products Mrs.
Gibbons used were tainted with asbestos.
Appellants did not present expert testimony to counter
the opinion by respondent’s expert. They did not offer
verified admissions or interrogatory answers by respondent.
Instead, they relied on their attorney’s declaration that
attached JJCI documents and deposition testimony by Mrs.
2
Gibbons and a JJCI employee who maintained JJCI never
found asbestos in any of its talc products.
We have independently reviewed the record and hold
summary judgment was properly granted in respondent’s
favor.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Lawsuit1
Mrs. Gibbons, born in 1962, used Shower to Shower
daily and liberally for 20 years, from 1980 to 2000. She used
Johnson’s Baby Powder from 1983 to 1985 for her son’s
diaper changes. During the years Mrs. Gibbons used these
products, respondent sourced all its talc from two Vermont
mines -- Hammondsville and Argonaut.
Mrs. Gibbons’s current and former spouses were all
employed in the construction industry between 1981 and
2000. Their work allegedly exposed them and her to
products containing asbestos. (See, e.g., Kesner v. Superior
Court (2016) 1 Cal.5th 1132.)
Mrs. Gibbons was diagnosed with malignant
mesothelioma in July 2016. She and her current spouse
initiated this action in December 2016, alleging strict
liability, negligence, false representation, intentional failure
to warn/concealment, premises owner/contractor liability,
1 This is one of the LAOSD Asbestos Cases (Judicial Council
Coordination Proceeding (JCCP) No. 4674; Code Civ. Proc., § 404
et seq.) All undesignated statutory citations that follow refer to
the Code of Civil Procedure.
3
and loss of consortium based on asbestos exposure.
Appellants sought general and punitive damages against
two groups of defendants: those that allegedly exposed Mrs.
Gibbons and her family to asbestos through construction
work2 and the two entities involved in the manufacture and
distribution of Shower to Shower and Johnson’s Baby
Powder -- JJCI and Imerys Talc America, Inc. (Imerys), a
JJCI talc supplier. Against JJCI and Imerys, appellants
alleged Shower to Shower and Johnson’s Baby Powder were
adulterated with asbestos.
II
Summary Judgment Motion
A. Moving Papers
JJCI and Imerys each moved for summary
judgment/summary adjudication of issues.3 Respondent
argued appellants’ formal discovery answers were
“[f]actually [d]evoid” insofar as identifying “any specific facts
that Mrs. Gibbons was actually exposed to asbestos from her
2 The construction defendants, including the sole defendant
named in the cause of action for premises liability, are not parties
to this appeal.
3 Imerys’s motion for summary judgment was granted, and
judgment was entered in its favor. Appellate proceedings against
Imerys are currently stayed as a result of that party’s bankruptcy
status.
This opinion addresses issues raised as to JJCI only.
Because we conclude JJCI’s motion for summary judgment was
properly granted, we do not analyze separately the summary
adjudication issues.
4
alleged use of Johnson’s Baby Powder and/or Shower to
Shower.” Respondent supported the summary judgment
motion with a lengthy declaration from its designated
expert, Matthew Sanchez, Ph.D.4
Appellants filed written objections to 27 of the 110
paragraphs in Sanchez’s declaration. The trial court ruled
on all objections, sustaining 12 and overruling 15.
Appellants did not make any oral objections at the hearing.
Without objection, Sanchez offered the following
evidence: He holds a Ph.D. in geology and is a member of
several mineralogical and geological professional societies.
As of October 2017, he was specializing “in characterizing
asbestos in raw materials and in building products and the
development of asbestos analytical methods.” He also was
active “on various committees regarding the analysis of talc
and asbestos” and was a member of a professional group
4 Respondent’s attorney filed a separate declaration that
attached several publications; the trial court sustained
appellants’ objections to those documents.
The trial court also sustained appellants’ objections to
excerpts from the deposition of John Hopkins, Ph.D., a former
JJCI employee and respondent’s designated “person most
knowledgeable.” Hopkins has been deposed in several other
lawsuits in JCCP No. 4674. The trial court did not permit
respondent to support its motion with any of Hopkins’s
deposition testimony.
However, the trial court permitted appellants to oppose
JJCI’s motion with excerpts from Hopkins’s deposition testimony
in a different asbestos lawsuit.
5
“currently drafting testing methods specific to cosmetic and
pharmaceutical grade talcs” and had “published more than
thirty publications, including on the identification,
characterization, and quantification of asbestos.”
In order to render opinions in this litigation, Sanchez
drew on his “technical expertise and experience in analyzing
a variety of materials, including talc, for asbestos content to
review and interpret the available analytical testing data on
JJCI’s talcum powder and its source mines.” He reviewed
“various governmental and academic studies on talc” from
the three mines JJCI used post-World War II to source its
cosmetic/pharmaceutical grade talc. Sanchez also reviewed
historical testing data from JJCI and the Federal Drug
Administration (FDA).
Talc, a magnesium silicate, is identified as either
“industrial grade [or] cosmetic/pharmaceutical grade,
depending on the particular deposit from which it comes.”
Only about five percent of all commercially mined talc
contains the purity, softness, and fine particle makeup to
qualify as cosmetic/pharmaceutical grade. Industrial grade
talc is less pure and contains “more accessory minerals,
including up to 50 percent tremolite . . . .” Asbestos, when
present in natural talc deposits, is an accessory mineral.
Like talc, asbestos is naturally occurring. “Asbestos is
a collective term that describes . . . six . . . highly fibrous
silicate minerals that . . . [¶] . . . when crystallized in a rare
asbestiform habit, are regulated as asbestos . . . . There are
two asbestos families: serpentine and amphibole.
Ninety-nine percent “of the known world occurrences”
of serpentine and amphibole minerals crystallize in “common
6
non-asbestiform habits.” Non-asbestiform minerals “are not
regulated as asbestos.” For example, the asbestiform
serpentine mineral known as chrysotile is a regulated
asbestos; the unregulated, non-asbestiform versions are
antigorite or lizardite. Contributing some confusion on the
topic, non-asbestiform tremolite is not a regulated mineral,
but asbestiform tremolite, commonly referred to as tremolite
asbestos, is.
Various tests are available to detect asbestos in talc.
Typically, analysts employ a combination of tests to
determine whether asbestos is present in bulk talc samples.
The presence of “amphibole mineral in talc is not the same
thing as reliably detecting asbestos in talc.” Crushed non-
asbestiform amphibole may result in “‘cleavage fragments’”
that mimic the appearance of individual asbestiform fibers.
“In particular, anthophyllite [an amphibole mineral] is easily
misidentified in talc.”
Similar errors occur with the mineral in serpentine
form: “Historically, cosmetic talcum powder has
occasionally, but erroneously, been reported as a source of
chrysotile asbestos. First, talc plates can roll up and appear
tubular -- like chrysotile -- under an electron microscope.
Such talc ‘scrolls’ often yield complex diffraction patterns
that are atypical of talc, including ‘streaking’ like chrysotile.
Second, many of these reports find only a single fiber or two
of chrysotile, which is more indicative of laboratory
contamination as opposed to asbestos contamination in the
talcum powder itself.”
Still without objection, Sanchez concluded, based on
his “review and interpretation of [various governmental and
7
academic studies],” as well as his analysis of internal JJCI
documents, that talc sourced from Vermont’s
Hammondsville and Argonaut mines was asbestos-free.5
The expert explained that southern Vermont talc deposits
were the result of “a geological condition not favorable for
the formation of asbestos, but where non-asbestiform
serpentine occurs. Several published studies found no
asbestos in talc produced in this mining district [identifying
studies], while to [his] knowledge no published study found
asbestos. In fact, Vermont talc was chosen by [one study] to
determine the health effect to miners and millers exposure
to asbestos-free talc.”
Appellants’ objections to paragraphs 9, 55, 59, and 110
of the Sanchez declaration were among those the trial court
overruled. In paragraph 9, Sanchez stated that one
requirement for cosmetic/pharmaceutical talc is that it
contain no asbestos.
In paragraph 55 of his declaration, Sanchez noted he
“evaluated the scientific literature related to the geology of
the talc formations in southern Vermont” and concluded talc
from that area was not contaminated with asbestos. He
further opined in paragraph 59, “to a reasonable degree of
scientific certainty that it appears very unlikely that
5 For example, Sanchez stated, “by 1977, JJCI required that
its talc suppliers analyze their talc for asbestos content and
certify that any talc they supplied to JJCI was asbestos-free, as
determined [by recognized testing methods].” “JJCI’s Raw
Material Purchase Specifications . . . confirm that suppliers were
required to analyze each shipment of talc for asbestos content
and certify that each shipment of talc was asbestos free.”
8
asbestos occurred in [the Vermont] talc deposits, or in turn
in products produced from them. Also, . . . [he] found no
asbestos minerals in talc ore from samples [another
scientist] collected at [one of the Vermont mines]. It is also
worth pointing out that many of the past testing documents
need to be critically evaluated . . . and not taken at face
value. Most certainly serpentine group minerals do occur in
these deposits, but investigators mostly only reported
finding the antigorite variety, as geological conditions did
not favor the formation of chrysotile. The occurrence of
amphiboles appears rare in the deposit, and there is no
evidence that any amphiboles in the deposit, or the shist
enclosing it, are asbestiform.”
In paragraph 110, Sanchez concluded, “In my expert
opinion, [respondent’s] talcum powder and talc from the
source mines was and is free of asbestos. This opinion is
offered to a reasonable degree of scientific certainty. This
opinion is based on my expertise, training, and experience in
analyzing materials, including talc, for possible asbestos
content. This opinion is supported by my own site visit and
by my review, analysis, and interpretation of decades of
study conducted by scientists in academia, federal
government, and industry. This opinion is also supported by
my review, analysis, and interpretation of the available
analytical testing data on [respondent’s] talcum powder and
talc from its three source mines.”
B. Appellants’ Opposition
In opposition, appellants argued the burden to produce
evidence never shifted to them because their discovery
9
answers were sufficient, while Sanchez’s declaration was
not. Even if the burden shifted, appellants maintained their
evidence demonstrated the Vermont mines were
contaminated with asbestos and “asbestos was routinely
found in testing of the finished [JJCI] products.”
Appellants’ opposition did not include verified
admissions or interrogatory answers by respondent or judicially
noticeable matters. (§ 437c, subd. (b)(2).) It was presented
solely through the declaration of their counsel, Michael B.
Gurien. Gurien identified and attached 91 exhibits,
including extensive excerpts from Mrs. Gibbons’s deposition
in this case and Hopkins’s deposition in another JCCP No.
4674 lawsuit (not the same deposition testimony JJCI
sought to use; see fn. 4). Most of the remaining 700-plus
pages of exhibits were documents JJCI produced in this and
other lawsuits in JCCP No. 4674. The parties stipulated all
bates-stamped exhibits submitted by appellants could be
considered by the trial court.
The bates-stamped exhibits fell into two broad
categories. The larger group included documents that were
technical in nature, e.g., intra-company communications,
tests, studies, and outside consultant reports. Many exhibits
predated respondent’s activities in the Hammondsville and
Argonaut mines; some involved different mines on different
continents. Many exhibits predated Mrs. Gibbons’s use of
respondent’s talc products.6
6 For example, in 1973 (seven years before Mrs. Gibbons
began using Shower to Shower), an outside consultant submitted
a technical report to respondent that advised in part: “We have
(Fn. is continued on the next page.)
10
Documents in the second set of exhibits were less
technical. Like Hopkins’s deposition testimony submitted by
appellants, these documents focused on what respondent
knew concerning the health hazards of asbestos exposure.7
This evidence was primarily intended to support appellants’
punitive damages claim.
examined a specimen of Vermont talc designated No. 32-71S by
transmission electron microscopy to determine whether any
asbestiform materials were present and have found none. [¶]
Specifically, we found no chrysotile or tremolite, but we did find
the serpentine mineral antigorite (ASTM Card 9-444), a hydrated
magnesium silicate, 6-layer ortho type. We identified antigorite
by its characteristic electron diffraction pattern which
corresponds exactly to patterns which we have obtained from
standard antigorite samples and from antigorite which was found
in the Windsor Mine [not Hammondsville or Argonaut]. [¶] We
have enclosed sample diffraction patterns from the antigorite
standard and from the antigorite which we found in this sample.
As mentioned previously in this report, we could find no
indications of chrysotile or tremolite. The talc was very blocky in
form and was not the normal, flaky talc which we associate with
the Vermont Ore. This may be due, in part or in total, to the pre-
processing of this particular talc specimen, e.g., to inadequate
grinding of the material to break it down into the finer flakes,
since all of the materials that we found, even the antigorite,
seemed to be blocky in form.”
7 Hopkins is not a geologist. As the person most qualified to
speak for respondent, he testified respondent never found
asbestos particles in any of its source mines. Hopkins agreed
with the questioner’s statements that “[t]here’s no place for
[asbestos in any cosmetic talc], correct?” and “that has always
been [respondent’s] policy as long as [he could] remember, as well
as from the documents [he] reviewed; correct?”
11
Appellants’ points and authorities in opposition to
respondent’s summary judgment motion made sweeping
statements concerning the presence of asbestos in the
Hammondsville and Argonaut mines (e.g., testing of talc
from those mines “has repeatedly shown the presence of
amphibole and chrysotile asbestos”) and in Shower to
Shower and Johnson’s Baby Powder (e.g., testing of these
products “has consistently shown the presence of asbestos”).
Appellants supported these statements with references to
132 “additional material facts.” (Capitalization omitted.)
The additional material facts identified exhibits to Gurien’s
declaration by number and typically included only the
attorney’s one-sentence characterization of the exhibit’s text
or data.8
Although appellants had designated experts in their
lawsuit, they did not submit an expert declaration in
opposition to the summary judgment motion. At the
hearing, appellants’ counsel argued JJCI’s documents,
coupled with Mrs. Gibbons’s undisputed use of JJCI talc
8 Some exhibits also referenced pages from Hopkins’s
deposition where he answered questions concerning certain
exhibits, referred to by number. References to these exhibits by
number are of little practical value to this court, however.
Although overlap certainly exists between appellants’ exhibits in
opposition to the summary judgment motion and the exhibits
Hopkins discussed in his deposition, the same documents have
different exhibit numbers. This is akin to incorporating by
reference trial court arguments into an appellate brief, a
violation of the rules of appellate practice.
12
products for 20 years, meant “as a matter of odds,” Mrs.
Gibbons must have been exposed to asbestos.
Appellants did not ask the trial court to continue the
hearing on respondent’s summary judgment motion so they
could submit an expert declaration. Appellants did not
depose Sanchez in order to challenge his qualifications,
opinions, or conclusions, nor did they seek a continuance of
the hearing in order to do so.9
III
Summary Judgment Hearing and
Trial Court Ruling
The hearing on respondent’s motion for summary
judgment focused on whether an expert declaration was
necessary to raise a triable issue of material fact.
Appellants’ counsel argued no expert testimony was
necessary because “[t]he documents themselves create a fact
issue as to whether the Vermont mines [were contaminated
with] . . . asbestos.” Appellants’ counsel suggested a jury
could “infer from all of those documents a common sense . . .
9 Appellants located a container of Shower to Shower
cosmetic powder actually used by Mrs. Gibbons. Appellants
produced it to respondent after the motion for summary
judgment was filed. Respondent tested the product; no asbestos
was detected. Sanchez then submitted a second declaration along
with respondent’s reply brief.
We have not considered that declaration or any other
evidence presented for the first time in respondent’s reply papers.
13
inference that [the Hammondsville and Argonaut mines
were contaminated].”
The trial court, after noting appellants did not seek a
continuance to conduct more discovery or to obtain an expert
declaration, granted respondent’s motion for summary
judgment: “[Sanchez’s declaration] is affirmative evidence
that the talc was not contaminated with asbestos, that
there’s no scientific way . . . anybody can link the . . .
asbestos . . . claimed to have been found [in] Mrs. Gibbons
[with respondent’s products]. And I think that that did put
the burden on [appellants], and I think that it is something
that requires expert testimony. [¶] I just don’t think that a
jury can possibly draw the inferences just from the
documents alone that [Mrs. Gibbons] would have been
exposed to asbestos . . . in the talc that she . . . [used].”
Appellants promptly sought reconsideration of the
order granting summary judgment. (§ 1008.) They cited
newly acquired evidence -- including United States
Geological Survey documents obtained via a Freedom of
Information Act request -- and supported the motion for
reconsideration with, inter alia, a declaration by a
professional geologist who reviewed geological survey
documents and concluded there is a “likelihood of chrysotile
and amphibole minerals occurring in close proximity to or at
the edges of the talc ore” in the Vermont county where the
Hammondsville and Argonaut talc mines were located.
Respondent opposed the motion. After a reported hearing,
the trial court denied the motion for reconsideration.
Appellants timely appealed.
14
DISCUSSION
I
Summary Judgment: Standard of Review
and General Governing Principles
Our review of the record in this appeal is de novo.
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028,
1037.) We begin our analysis with the moving party’s
separate statement to determine whether it makes “a prima
facie showing of the nonexistence of any triable issue of
material fact” (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal. 4th 826, 850 (Aguilar)). “A prima facie showing is one
that is sufficient to support the position of the party in
question. . . . No more is called for.” (Id. at p. 851, citation
omitted.)
A moving party that satisfies its burden “causes a shift,
and the opposing party is then subjected to a burden of
production of [its] own to make a prima facie showing of the
existence of a triable issue of material fact.” (Aguilar, supra,
25 Cal.4th at p. 850.) At this point, the opposing party
cannot simply stand on its pleadings, but must respond with
“specific facts showing that a triable issue of material fact
exists . . . .” (§ 437c, subd. (p)(2).) “Each material fact
contended by the opposing party to be disputed shall be
followed by a reference to the supporting evidence.” (Id. at
subd. (b)(3).)
15
II
The Sanchez Declaration Shifted the Burden
to Appellants to Produce Evidence of
Threshold Exposure to Asbestos
From JJCI’s Talc Products
Appellants attack the Sanchez declaration on two
fronts. First, they contend the trial court erroneously
overruled a number of objections to the declaration. Second,
appellants maintain “that, even without considering the
objections the trial court overruled,” what remained of the
Sanchez declaration after other objections were sustained
was insufficient to shift the burden to them to raise a triable
issue of material fact as to Mrs. Gibbons’s exposure to
asbestos through her use of respondent’s talc products.
Neither contention has merit.
A. Evidentiary Error
Appellants do not identify evidentiary error in a
heading or subheading in their opening brief. (Cal. Rules of
Court, rule 8.204(a)(1)(B).) Respondent argues appellants
have forfeited this claim of error. (Pizarro v. Reynoso (2017)
10 Cal.App.5th 172, 179 [“Failure to provide proper headings
forfeits issues that may be discussed in the brief but are not
clearly identified by a heading”].) In their reply brief,
appellants seek to avoid forfeiture by contending they “went
on to specifically identify and discuss the overruled
objections and explain[] why the objections should have been
sustained.” This contention overstates the cursory
treatment appellants gave the evidentiary error discussion
in the opening brief. Moreover, appellants fail to cite any
16
apt authority to support their position. However, with one
exception, we conclude their perfunctory arguments
minimally comply with rule 8.204(a) of the California Rules
of Court.10
The weight of authority in this state is that we apply
an abuse of discretion standard when we review trial court
evidentiary rulings. (Duarte v. Pacific Specialty Ins Co.
(2017) 13 Cal.App.5th 45, 52 & fn. 7.) The challenged
evidentiary rulings were well within the trial court’s
discretion.
Nine objections based on relevance were directed to
Sanchez’s statements concerning respondents’ post-World
War II talc sources other than Vermont’s Hammondsville
and Argonaut mines. Appellants identified the other mines
in their own statement of material facts and submitted
documents and excerpts from Hopkins’s deposition
testimony concerning them. Appellants did not object to a
number of paragraphs in Sanchez’s declaration that
discussed the other mines (e.g., ¶¶ 47-51, 53, 62). Although
a ruling on the motion for summary judgment does not
depend on this evidence, the trial court did not abuse its
discretion in overruling the objections.
10 Where appellants merely incorporate their trial court
arguments concerning specific objections (e.g., objection 4) into
their opening brief, we disregard them. (Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal. 4th 260, 294 & fn. 20; Parker v.
Wolters Kluwer United States, Inc. (2007) 149 Cal. App. 4th 285,
290.)
17
Appellants’ objection that paragraph 16 of Sanchez’s
declaration lacked foundation also was properly overruled.
There, the defense expert prefaced his opinion concerning
talc testing with, “It is well known to mineralogists . . . .” In
this court, appellants argue Sanchez’s declaration stated “he
is a geologist, . . . [not] . . . a mineralogist [and does not]
demonstrate any expertise that would qualify him as an
expert in mineralogy.” Sanchez holds a doctorate degree in
geology and is a member of the Mineralogical Society of
America and the Mineralogical Association of Canada. His
declaration describes years of experience analyzing talc and
asbestos, both minerals. The dictionary defines “mineralogy”
as the “science dealing with minerals, their crystallography,
properties, classification, and the ways of distinguishing
them.” (At [as of Jan. 15, 2020].) Sanchez presented an
adequate foundation for his mineralogy opinions. (Evid.
Code, § 720, subd. (a).)
Appellants’ entire argument in their opening brief
concerning objections to paragraphs 55, 59, and 110 of the
Sanchez declaration, where the expert opined that
respondent’s Vermont talc did not contain asbestos, is as
follows: “[Appellants] objected that those statements lacked
foundation, constituted improper expert opinion, and
contained inadmissible hearsay, because they were used to
introduce the hearsay content of ‘scientific literature,’ ‘past
geological investigations,’ and ‘past peer-reviewed/refereed
publications.’” Appellants “objected on the same grounds to
18
paragraphs 93 and 110[11] of Sanchez’s declaration, wherein
he stated that [respondent’s] talcum powder products did not
contain asbestos. . . . [T]hose statements were . . . used to
introduce the hearsay content of a purported ‘decades-long
testing record, including historical testing by JJCI and its
suppliers, independent third-party testing, and historical
government testing.’”
Not one of these paragraphs includes content from any
testing records. These paragraphs contrast with paragraphs
56 through 58, which do include information from historical
testing; and appellants’ objections to those paragraphs were
sustained.
In the challenged paragraphs, Sanchez did no more
than identify the sources for his opinion. Accordingly, the
evidence was properly received. (Fuller v. Department of
Transportation (2019) 38 Cal.App.5th 1034, 1044 [“Evidence
Code section 1200 bars an expert from reciting parts of a
hearsay document for the truth of the matter stated. There
is a distinction to be made between allowing an expert to
describe the type or source of the matter relied upon as
opposed to presenting, as fact, case-specific hearsay that
does not otherwise fall under a statutory exception”];
McCleery v. Allstate Ins. Co. (2019) 37 Cal.App.5th 434, 453
[expert may rely on and identify ‘““the matters on which he
11 Appellants mentioned paragraph 110 twice.
Paragraph 93 simply identified the types of records
Sanchez reviewed in reaching his opinion (“historical testing
by JJCI and its suppliers, independent, third-party testing,
and historical government testing”).
19
or she relied, [but] . . . may not testify as to the details of
those matters if they are otherwise inadmissible”’”].)
Appellants also fault the trial court for overruling their
objections to paragraphs 84 and 85, contending Sanchez
“stated that the ‘chances’ of asbestos contamination
occurring in a finished talc product ‘are so small as to
approach the impossible,’ and that ‘there is no scientific
methodology or test that could support an opinion’ regarding
universal contamination of a product over a period of time.
[Citation to record.] [Appellants] objected that those
statements lacked foundation and constituted improper
expert opinion.”
Appellants do not provide context for the challenged
statements. The selective quotations and the paraphrasing
of the rest of the expert’s statements are also somewhat
misleading. Paragraphs 84 and 85 were part of Sanchez’s
larger discussion concerning the “occurrence[] of non-talc
minerals in talc deposits” (capitalization and underlining
omitted) and what must happen during the mining, milling
and manufacturing processes before “asbestos contamination
[can] occur in a finished talc product.” The discussion
included 11 preceding and three following paragraphs to
which no objections were made. Those paragraphs provided
the foundation for the expert’s conclusions in paragraphs 84
and 85 that “there is no scientific methodology or test that
could support an opinion that particular containers of
[respondent’s] talc used by an individual over a period of
years were all contaminated with asbestos, absent testing of
the talc in each of the actual containers.”
20
Whether Shower to Shower and Johnson’s Baby
Powder were contaminated with asbestos was a proper
subject for expert opinion. (Evid. Code, § 805 [an expert
opinion is “not objectionable because it embraces the
ultimate issue to be decided by the trier of fact”]; see also
WRI Opportunity Loans II, LLC v. Cooper (2007) 154
Cal. App. 4th 525, 532, fn. 3 [Evid. Code, § 805 typically
“permits expert testimony on the ultimate issue to be
decided”].) The trial court did not abuse its discretion in
overruling the objections to paragraphs 84 and 85.
B. Sufficiency of the Sanchez Declaration to
Shift the Burden
The Sanchez declaration established “a prima facie
showing of the nonexistence of any triable issue of material
fact” (Aguilar, supra, 25 Cal.4th at p. 850). As mentioned,
appellants succeeded in excluding only 12 paragraphs from
the expert’s declaration. Evidence in the remaining 98
paragraphs, summarized ante, provided prima facie proof
the talc products Mrs. Gibbons used were not adulterated
with asbestos and did not expose her to asbestos. The
burden shifted to appellants to make a contrary prima facie
showing.
III
Summary Judgment:
Asbestos Exposure
More than 20 years ago, our Supreme Court announced
a two-step test for holding manufacturers of asbestos-
containing products liable for asbestos-related latent
21
injuries: “[T]he plaintiff must first establish some threshold
exposure to the defendant’s defective asbestos-containing
products, and must further establish in reasonable medical
probability that a particular exposure or series of exposures
was a ‘legal cause’ of his injury, i.e., a substantial factor in
bringing about the injury. . . . [T]he plaintiff may meet the
burden of proving that exposure to defendant’s product was
a substantial factor causing the illness by showing that in
reasonable medical probability it was a substantial factor
contributing to the plaintiff’s or decedent’s risk of developing
cancer.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th
953, 982-983, fn. omitted.) If an asbestos plaintiff fails to
prove exposure, there is no causation and no liability as a
matter of law. (McGonnell v. Kaiser Gypsyum Co. (2002) 98
Cal. App. 4th 1098, 1103 (McGonnell).)
Numerous appellate decisions address summary
judgment motions by manufacturers of products that include
asbestos in their formulae. If the defendant manufacturer
meets “its initial burden of production by making a prima
facie showing that [the] plaintiff does not have, and cannot
obtain, evidence necessary to show exposure to an asbestos-
containing [product],” the opposing asbestos plaintiff must
present evidence of sufficient quality to raise a triable issue
of material fact as to exposure. (Collin v. CalPortland Co.
(2014) 228 Cal. App. 4th 582, 594; McGonnell, supra, 98
Cal.App.4th at p. 1105.) The material issue is exposure to
the product itself; and it is not uncommon for asbestos
plaintiffs to rely on their own testimony or testimony by
family members or coworkers, i.e., from individuals other
than experts, or on business records detailing the purchase
22
and placement of asbestos products at jobsites or in work
environments. Even “‘circumstantial evidence . . . sufficient
to support a reasonable inference’” of exposure may defeat
summary judgment. (Casey v. Perini Corp. (2012) 206
Cal. App. 4th 1222, 1237.)
Asbestos plaintiffs in lawsuits where the product,
although not containing asbestos, was designed to inevitably
expose them to asbestos similarly may defeat summary
judgment with nonexpert testimony that they used the
product. (E.g., Hetzel v. Hennessy Industries, Inc. (2016) 247
Cal. App. 4th 521, 526 [summary judgment for the defendant
reversed where plaintiff established her husband worked
with its brakeshoe-grinding machines, which ‘‘‘“had no other
function than to grind asbestos-containing brake linings”’”].)
Plaintiffs who allege they developed mesothelioma as a
result of exposure to asbestos-contaminated talcum powder
products face a different challenge. Cosmetic talc products
such as Shower to Shower and Johnson’s Baby Powder are
not formulated to contain asbestos or to necessarily be used
in the presence of asbestos. The material issue in a talc
asbestos case is not the plaintiff’s exposure to the product,
but the plaintiff’s exposure to asbestos through use of a talc
product not designed to contain that mineral. In other
words, the question is whether it is more likely than not that
the talc product was contaminated with asbestos during the
time the plaintiff used it.
To date, no reviewing court has held a talc asbestos
plaintiff has raised a triable issue of material fact on the
exposure and contamination issue without expert
23
testimony.12 Lyons v. Colgate-Palmolive Co. (2017) 16
Cal.App.5th 463, 471 (Lyons) is instructive on this point.
In Lyons, the plaintiff used Cashmere Bouquet talcum
powder for 20 years. She developed mesothelioma and sued.
The defendant moved for summary judgment and supported
the motion with “expert testimony that Cashmere Bouquet
‘was free of asbestos.’” (Lyons, supra, 16 Cal.App.5th at
p. 467.)
Lyons opposed the motion with volumes of evidence,
including a declaration by an expert geologist, Sean
Fitzgerald. (Lyons, supra, 16 Cal.App.5th at p. 466.)
12 Similarly, to date, no reviewing court has been presented
with verified admissions or discovery answers by a talc
manufacturer that might obviate the need for an opposing expert
declaration.
Nor is this a case where the manufacturer’s counsel has
conceded contamination of its products. Efforts by appellants’
counsel to demonstrate otherwise during oral argument in this
court are not supported by the record.
At the hearing on its summary judgment motion,
respondent’s counsel commented, “at best, we can speculate that
somehow these documents from 1970, you know, obviously we
dispute what [appellants] say they say. But for purposes of the
motion, because we viewed . . . the evidence in the light most
favorable to [appellants], let’s assume that these handful of
documents demonstrate that some talc was contaminated with
asbestos.” Respondent’s counsel added, “a little bit of asbestos in
one sample out of . . . multiple, multiple samples that were being
tested, without an expert saying, yes, that makes it more likely
than not that the products that Mrs. Gibbons were using is
contaminated, without that . . . bridge, they just haven’t gotten
there.” These statements fall far short of concessions that could
take the place of an opposing expert declaration.
24
Fitzgerald “‘personally confirmed the presence of asbestos in
all three mine sources and the Cashmere Bouquet products
. . . [through] years of repeated testing by industry-standard
asbestos analytical techniques.’” (Ibid.) Fitzgerald
expressed his opinion “‘to a reasonable degree of scientific
certainty, that [the plaintiff] was repeatedly exposed to
significant airborne asbestos . . . by her use of Cashmere
Bouquet talcum powder products.’” (Id. at p. 467.)
Fitzgerald’s “declaration include[d] 39 exhibits totaling close
to 800 pages, consisting of scientific papers, geological
surveys and other documents supporting these conclusions.”
(Ibid.)
The trial court granted summary judgment in the
defendant’s favor, but the Court of Appeal reversed. The
appellate panel acknowledged the volumes of evidence
presented by the plaintiff, but considered only Fitzgerald’s
expert testimony. (Lyon, supra, 16 Cal.App.5th at p. 471.)
Noting the defendant had waived any objections to
Fitzgerald’s declaration (id. at p. 468), Lyons held: “The only
question here is whether the Cashmere Bouquet [the
plaintiff used for 20 years] contained asbestos. As to that
critical issue, while [the defendant] has produced evidence
tending to show that it did not, the testimony of Fitzgerald
unquestionably creates a triable issue that it did, without
considering any of [Lyons’s] other evidence.” (Id. at p. 471.)
Berg v. Colgate-Palmolive Co. (2019) 42 Cal.App.5th
630 (Berg) is also a talc asbestos case, and it represents the
other side of the coin. Berg developed mesothelioma decades
after he used the defendant’s Mennen Shave Talc. The
defendant moved for summary judgment on the ground Berg
25
could not demonstrate the talc product contained asbestos.
(Id. at p. 632.) The defendant supported the motion with a
declaration by Sanchez, the same expert retained by
respondent in this case.
Berg opposed the summary judgment motion with a
declaration by Fitzgerald, the same expert retained by the
plaintiff in Lyons. Fitzgerald explained the defendant’s talc
was sourced from mines that “‘historically’” were
contaminated with asbestos, and testing in the 1970’s by the
FDA showed the presence of asbestos in Mennen Shave Talc.
(Berg, supra, 42 Cal.App.5th at p. 632.) Fitzgerald
personally tested samples of Mennen Shave Talc and “all
showed ‘countable structures of amphibole’ minerals, the
majority of which ‘were clearly asbestiform in crystalline
habit.’” (Id. at p. 633.) Fitzgerald concluded “‘to a
reasonable degree of scientific certainty’” the Mennen Shave
Talc that Berg used contained asbestos. (Ibid.)
The trial court granted the defendant’s motion for
summary judgment, and the Court of Appeal affirmed. The
appellate panel rejected Berg’s contention that he “presented
evidence from which a jury could conclude ‘that all or
virtually all of the Mennen Shave Talc products during the
relevant period’ contained asbestos. . . . At best, [Berg]
presented evidence that it was possible the shave talc [he]
used exposed him to asbestos, but [he] failed to present
evidence upon which a reasonable jury could conclude that
any such exposure was more likely than not.” (Berg, supra,
42 Cal.App.5th at p. 635; see also Andrews v. Foster Wheeler
LLC (2006) 138 Cal. App. 4th 96, 108 [“‘The mere “possibility”
of exposure does not create a triable issue of fact’”].)
26
IV
Appellants Did Not Demonstrate the Existence
of a Triable Issue of Fact as to the Presence of
Asbestos in the JJCI Talc Products Mrs. Gibbons
Used
A. No Specific Facts
In their formal discovery answers and opposition to
respondent’s summary judgment motion, appellants relied
almost exclusively on JJCI documents and excerpts from
Hopkins’s deposition testimony.13 As voluminous as those
documents are, they do not contain the “specific facts”
necessary to raise a triable issue of material fact. (§ 437c,
subd. (p)(2).) Many are highly technical and lack
explanations in layperson’s terms. Many include only
snippets of test results of raw talc based on miniscule sample
sizes. Many were not created, and do not reflect information
available, during the years Mrs. Gibbons used Shower to
Shower and Johnson’s Baby Powder (see, e.g., appellants’
additional material facts nos. 16 through 39, 43 through 50,
53 through 56, 68 through 73, 87 through 102); and there is
no explanation as to why they are relevant to demonstrate it
is more likely than not that any of the talc products Mrs.
Gibbons used between 1980 and 2000, when JJCI’s talc was
13 A reasonable inference from the record is that these JJCI,
bates-stamped documents are among the documents Sanchez
reviewed in forming the opinion that JJCI’s talc products are not
contaminated with asbestos.
27
sourced from Hammondsville and Argonaut, contained
asbestos.14
14 Appellants’ additional material facts nos. 123 and 124
provide examples of the lack of specificity and descriptive
hyperbole. They include the following unequivocal statements:
“123. In 1976, [JJCI] prepared, in advance, ‘Appropriate
responses’ and ‘refutations’ to Dr. Langer’s study demonstrating
asbestos in consumer talc products. [¶] 124. In 1972, [JJCI] tried
to discredit Dr. Lewin when he reported asbestos in its talc
products.” As supporting evidence for both statements,
appellants cite exhibits 82, 83, and 84, and two excerpts from
Hopkins’ deposition.
Exhibit 82 is a three-page memo dated October 1, 1976.
Item 5 in the memo is listed as “Langer Paper ‘Consumer Talcum
Powders.’” The entire comment in exhibit 82 concerning the
“Langer Paper” is: “This paper will appear in the November ‘76
issue of the Journal of Toxicology and Environmental Health.
Appropriate responses are being organized.” Nothing in the
memorandum summarizes the Langer paper or suggests Dr.
Langer demonstrated that asbestos had been found in any talc
products, much less JJCI’s products. The word “refutations” does
not appear in exhibit 82.
Exhibit 83 is a one-page, November 15, 1976 letter from
JJCI to Dr. J. Krause of the Colorado School of Mines Research
Institute. It references Krause’s letter to the editor of the
Journal of Toxicology & Environmental Health “wherein [Krause]
refute[s] Langer’s recent work.” This exhibit provides no
information as to the substance of Langer’s work or Krause’s
criticism. Additionally, the memo advises that two one-pound
bottles of Italian talc are included with the memo, and the “lot is
truly representative of Italian high grade cosmetic talc presently
being distributed on the world markets.”
Exhibit 84 is a three-page memo dated September 25, 1972.
This exhibit detailed a meeting concerning talc from Italy, not
Hammondsville or Argonaut. One expert reported the Italian
(Fn. is continued on the next page.)
28
Moreover, statements by appellants’ counsel in the
“additional material facts” portion of the summary judgment
opposition that purport to describe exhibits identified only
by date and/or number have no evidentiary value. Attorney
characterizations do not themselves constitute specific
evidentiary facts.
B. No Rebuttal of Respondent’s Expert
Testimony
Appellants maintain mesothelioma plaintiffs do not
need expert testimony to make a prima facie case of asbestos
exposure and defeat summary judgment in talc asbestos
cases. They cite no authority to support the contention; and
it is contrary to Lyons and Berg.
mine “contains no deposits of chrysotile asbestos and very minor
amounts of tremolite.” The author of the memo noted JJCI’s
“data are now conclusive and contain new information on the
composition of Italian talc which may explain the errors of
Dr. Lewin . . . .” Lewin attended the meeting and presented his
test results from two lots of Shower to Shower, both sourced from
Italy. Lewin’s findings were based on X-ray diffraction patterns.
According to the memo, Lewin agreed to work with two critics of
his study (Drs. McCrone and Schaffner) to develop a microscopy
protocol as “[i]t was obvious that the X-ray scan did not show
definite chrysotile [and] microscopy was indicated . . . .”
Hopkins’s deposition testimony is also not specific.
Hopkins was only asked if he was “aware” of a 1976 peer-
reviewed article published by Langer and two colleagues that
“look[ed] at the asbestos in 20 different consumer talcum powder
products; correct?” He was, but in the cited testimony, he was
not asked whether any JJCI talc products sourced from
Hammondsville or Argonaut mines were included in the article.
29
Appellants’ argument that “[i]t does not require an
expert to explain to a jury that there was asbestos in the
Vermont talc” is conclusory as to the type of evidence that is
within a layperson’s ken. It sidesteps the need for expert
testimony to rebut Sanchez’s expert opinion “to a reasonable
degree of scientific certainty” that respondent’s talcum
powder products are free of asbestos. (Bozzi v. Nordstrom,
Inc. (2010) 186 Cal. App. 4th 755, 761.) At the summary
judgment stage, allegations alone that Vermont talc mines
contained asbestos and JJCI’s talcum powder products were
contaminated with the mineral are insufficient to raise a
triable issue of material fact. So are an attorney’s
conclusions concerning scientific and technical evidence.
Appellants nonetheless urge reversal based on Lyons,
supra, 16 Cal.App.5th 463, arguing “nowhere in [the Lyons’]
opinion . . . did the [appellate] court state or suggest that an
expert declaration is required to raise a triable issue of fact
as to asbestos content in a case alleging injury from exposure
to a talcum powder that contained or was contaminated with
asbestos.” There was no need in Lyons to discuss the
necessity of an opposing expert’s declaration: The plaintiffs
opposed the defense summary judgment motion with an
expert’s comprehensive declaration, to which no objections
were either made or sustained. The issue in Lyons was
whether the opposing expert’s declaration raised a triable
issue of material fact; volumes of other evidence were not
even considered. (Id. at p. 471.)
The same issue was presented in Berg. There,
however, the appellate panel held an opposing expert
declaration based only on a possibility, rather than a
30
probability, that the plaintiff’s shave talc was contaminated
with asbestos was insufficient to raise a triable issue of
material facts. (Berg, supra, 42 Cal.App.5th at p. 635; see
also McGonnell, supra, 98 Cal.App.4th at p. 1106 [“An
expert’s speculations do not rise to the status of
contradictory evidence, and a court is not bound by expert
opinion that is speculative or conjectural. [Citations.] [The]
[p]laintiffs cannot manufacture a triable issue of fact
through use of an expert opinion with self-serving
conclusions devoid of any basis, explanation, or reasoning”].)
Appellants did not demonstrate it was more likely than
not that Mrs. Gibbons was exposed to asbestos through
adulterated talc products manufactured by respondent from
Hammondsville or Argonaut talc. Unlike Lyons, appellants
did not present the trial court with an opposing -- and
unchallenged -- expert declaration. Unlike Berg and
McGonnell, appellants did not even present the trial court
with “speculative or conjectural” expert opinion.
Instead, appellants relied on hundreds of pages of
mostly technical and scientific documents that predated or
postdated Mrs. Gibbons’s use of Shower to Shower and
Johnson’s Baby Powder and dealt with mines other than
Hammondsville and Argonaut. Appellants did not reiterate
specific evidentiary facts retrieved from the documents that
were admitted into evidence. Rather, they depended on
their attorney’s declaration, which simply identified and
attached 91 exhibits (“Attached hereto as Exhibit [insert
number] is a true and correct copy of . . . .”).
An opinion by a plaintiff’s expert to a “‘reasonable
degree of scientific certainty’” that mined talc or
31
manufactured talcum products were contaminated with
asbestos is insufficient to prevent summary judgment in a
defendant’s favor if the expert’s declaration includes “readily
apparent [deficiencies in the supporting factual foundation].”
(Berg, supra, 42 Cal.App.5th at p. 636.) The rule is not more
lenient when the declarant is not an expert, but the
plaintiff’s attorney. Viewing appellants’ evidence “in its best
light,” we are presented only with a possibility of
contamination and “speculation that . . . ‘narrow[s] into
conjecture.’” (McGonnell, supra, 98 Cal.App.4th at p. 1105.)
Summary judgment in respondent’s favor was properly
granted.
32
DISPOSITION
The judgment is affirmed. Respondent is awarded
costs on appeal.
CERTIFIED FOR PUBLICATION
DUNNING, J.*
We concur:
MANELLA, P. J.
WILLHITE, J.
*Retired Judge of the Orange Superior Court assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
33