Brandt, C. v. Colgate Palmolive Company ( 2020 )

J-A24021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHARLES BRANDT, INDIVIDUALLY : IN THE SUPERIOR COURT OF
AND AS EXECUTOR OF THE ESTATE : PENNSYLVANIA
OF SALLY BRANDT :
:
Appellant :
:
:
v. :
: No. 940 EDA 2019
:
BON-TON STORES INC A/K/A- :
POMEROY'S DEPARTMENT STORE, :
AKA- POMEROY'S INC., CHARLES B. :
CHRYSTAL COMPANY, INC., :
COLGATE-PALMOLIVE COMPANY, :
WHITTAKER, CLARK & DANIELS, :
INC. C/O JOSEPH K. COBUZION, :
ESQ., IMERYS TALC AMERICA, INC. :
CORPORATION SERVICE COMPANY :
AKA- AMERICAN TALC CO.; AND :
RESO AKA- CHARLES MATHIERS, :
INC; METR AKA- LUZENAC AMER. :
INC; CYPRUS T :
Appeal from the Order Entered February 8, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): December Term, 2015, No. 02987
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 21, 2020
Appellant, Charles Brandt, individually and as executor of the Estate of
Sally Brandt, appeal from the Order entered February 8, 2019, which granted
Appellee Colgate-Palmolive Company summary judgment in this asbestos
litigation. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
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Sally Brandt (“Decedent”) used Appellee’s product, Cashmere Bouquet
talcum powder, daily from approximately 1956 until 1970.1 In November
2014, a physician diagnosed the Decedent with malignant pleural
mesothelioma. The Decedent died in February 2018.
Prior to her death, the Decedent and her husband commenced this
litigation, asserting that Cashmere Bouquet had been contaminated with
asbestos. Second Amended Complaint, 7/20/18, at 2. According to Appellant,
her exposure to asbestos-contaminated Cashmere Bouquet was the direct and
proximate cause of her disease. Id.
Appellee did not design or formulate Cashmere Bouquet to contain
asbestos. Rather, Appellant alleged that the talc in Cashmere Bouquet was
contaminated with asbestos. Thus, Appellant needed to establish that
Cashmere Bouquet exposed the Decedent to asbestos to such a degree that
such exposure caused her mesothelioma. In order to do so, Appellant
proffered testimony from several experts relevant to this appeal: (1) Dr.
Ronald Dodson, a biological microscopist; (2) Ms. Susan Raterman, an
industrial hygienist; and (3) Dr. John Maddox, a pathologist.
Appellant proffered Dr. Dodson’s expert opinion to establish the
existence of asbestos in the lung tissue of the Decedent. Dr. Dodson, however,
could not independently conclude that the sample from the Decedent’s lung
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1Prior to that time, Ms. Brandt lived with family members who also used
Cashmere Bouquet talcum powder.
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tissue contained asbestos because when he examined a sample of the
Decedent’s lung tissue for ferruginous bodies using a light microscope, he did
not observe ferruginous bodies in the sample. Id. at 55. Nevertheless, Dr.
Dodson forwarded this sample of lung tissue to Mr. Lee Poye for additional
evaluation using an electron microscope. Id. at 61-62. Mr. Poye was able to
conclude that there were asbestos fibers in the sample of the lung tissue. Id.
at 62. Dr. Dodson incorporated Mr. Poye’s evaluation into his report, thus
concluding that since there was asbestos in the sample of lung tissue, the
Decedent had been exposed to asbestos. Id. at 62, 72.
Also, Appellant presented the expert report of Ms. Raterman to establish
the extent to which Cashmere Bouquet caused the Decedent to be exposed to
asbestos. According to Ms. Raterman, air sample testing performed by Dr.
John Millette established the presence of asbestos fibers released into the air
during use of Cashmere Bouquet. See N.T. Raterman Deposition, 1/18/19,
at 129-33. Ms. Raterman opined that the Decedent’s exposure to asbestos
was “significant” because she had used Cashmere Bouquet, quantifying Ms.
Brandt’s exposure as potentially “10,000 times background [levels normally
present in the environment].” Id. at 181.
In turn, Dr. Maddox premised his causation testimony upon the
conclusions of Ms. Raterman that Cashmere Bouquet exposed Mrs. Brandt to
10,000 times background levels normally present in the environment. N.T.
Maddox Deposition, 1/29/19, at 92-93. According to Dr. Maddox, the
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Decedent’s cumulative exposure to asbestos from Cashmere Bouquet talcum
powder was a substantial factor in causing her disease. Id. at 93, 96, 97.
In July 2018, Appellee filed a Motion in Limine seeking to preclude Dr.
Dodson from testifying at trial about Dr. Poye’s conclusion that Dr. Poye
discovered asbestos in the Decedent’s sample of lung tissue. In particular,
Appellee objected to Dr. Dodson relying on the contents of the expert report
of Mr. Poye. According to Appellee, such testimony was inadmissible as
hearsay because Mr. Poye was not a testifying expert in Appellant’s case.
Appellee’s Motion in Limine (“Dodson Motion”), 7/23/18, at 1. Appellee
further asserted that Dr. Dodson lacked the foundation necessary to opine
whether Mr. Poye’s results and opinions were scientifically reliable. Id. at 1-
2.
Similarly, in January 2019, Appellee filed a Motion in Limine seeking to
preclude evidence of talcum powder testing performed by Dr. Millette about
the extent to which Ms. Brandt was exposed to asbestos. According to
Appellee, the evidence was inadmissible hearsay because Dr. Millette was not
testifying in Appellant’s case. Appellee’s Motion in Limine (“Millette Order”),
1/25/19, at 2. Additionally, Appellees asserted that Dr. Millette’s test results
and opinions were inadmissible because his methodology was scientifically
unreliable. Id.
In February 2019, the trial court granted both of these motions. Trial
Ct. Order (“Dodson Order”), 2/5/19; Trial Ct. Order (“Millette Order”), 2/5/19.
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Based on the exclusion of Dr. Millette’s scientific evidence and opinions,
Appellee renewed its prior motion for summary judgment, asserting that
Appellants were unable to establish that the Decedent was exposed to
asbestos-contaminated Cashmere Bouquet and, therefore, unable to establish
causation. Appellee’s Renewed Motion for Summary Judgment, 2/7/19; N.T.
Summary Judgment Argument, 2/7/19, at 47-48; see also Appellee’s Motion
for Summary Judgment, 1/10/17. Following argument, the trial court granted
Appellee summary judgment. Trial Ct. Order (S.J. Order), 2/8/19; see also
Trial Ct. Op., 4/11/19, at 7 (specifically concluding that Appellant failed to
present evidence that “Ms. Brandt was exposed to sufficient levels of airborne
asbestos with sufficient frequency to cause her disease from the use of
Cashmere Bouquet”).
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
Statement. The trial court issued a responsive Opinion.
Appellant raises the following issues on appeal, restated for clarity and
reordered for ease of analysis:
1. Whether the trial court abused its discretion in precluding the
expert testing results and opinions of (a) Dr. James Millette and
(b) Mr. Lee Poye; and
2. Absent this evidence, whether there was nonetheless evidence
of Ms. Brandt’s exposure to asbestos fibers emitted from
Appellee’s Cashmere Bouquet talcum powder in sufficient
quantities such that her exposure was a substantial factor in
causing her disease and, therefore, whether this evidence was
sufficient to withstand summary judgment.
See Appellant’s Br. at 4.
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Appellant asserts that the trial court abused its discretion in precluding
Ms. Raterman from testifying about testing results and opinions of Dr. James
Millette regarding the extent to which the Decedent’s use of Cashmere
Bouquet resulted in her exposure to asbestos. Appellant’s Br. at 23.
According to Appellant, Pennsylvania Rule of Evidence 703 permits Ms.
Raterman’s reliance upon this evidence—otherwise inadmissible as hearsay—
in formulating her expert opinion. Id. at 24-33. We disagree.
The admissibility of evidence is within the sound discretion of the trial
court. Estate of Hicks v. Dana Cos., LLC, 984 A.2d 943, 961 (Pa. Super.
2009). We review a court’s evidentiary rulings for an abuse of discretion. Id.
An abuse of discretion requires “manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.” Nazarak v. Waite, 216 A.3d 1093, 1100 (Pa. Super. 2019)
(citation omitted).
Rule 703 provides that “[a]n expert may base an opinion on facts or
data in the case that the expert has been made aware of or personally
observed.” Pa.R.E. 703. “If experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on the subject, they
need not be admissible for the opinion to be admitted.” Id.
Thus, for example, “[i]t is well understood that medical experts are
permitted to express opinions which are based, in part, upon reports which
are not in evidence, but which are customarily relied upon by experts in the
practice of the profession.” Primavera v. Celotex Corp., 608 A.2d 515, 518
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(Pa. Super. 2003) (permitting expert medical testimony that incorporated
extrajudicial diagnostic and surgical reports of plaintiff’s lung disease).2
However, “[a]n ‘expert’ should not be permitted simply to repeat
another’s opinion or data without bringing to bear on it [her] own expertise
and judgment.” Id. at 521; Pa.R.E. 703, Cmt. (“An expert witness cannot be
a mere conduit for the opinion of another.”); see, e.g., Foster v.
McKeesport Hosp., 394 A.2d 1031, 1033 (Pa. Super. 1978) (holding expert
opinion, quoting verbatim from another expert’s report, inadmissible because
it was based on nothing more than belief that the non-testifying expert was
competent).
The applicability of Rule 703 depends on the circumstances of the
particular case. Primavera, 608 A.2d at 521. Where the extrajudicial
evidence is scientific in nature, but novel or of questionable reliability, it is
necessary for the trial court to consider whether the “methodology that
underlies the evidence has “general acceptance in the relevant scientific
community.” Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1044 (Pa. 2003)
(citation omitted). It is well settled in Pennsylvania that “the proponent of
expert scientific evidence bears the burden of establishing all of the elements
for its admission under Pa.R.E. 702, which includes showing that the Frye rule
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2 In Primavera, we recognized that the most widely recognized application of
this exception to the hearsay rule involved medical testimony, but we did not
limit application to medical testimony. Id. at 518 n.4.
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[of general acceptance] is satisfied.” Id. at 1045; see also Daniel J. Anders,
Ohlbaum on the Pennsylvania Rules of Evidence § 703.10 (2020 ed.
LexisNexis Matthew Bender).3
Our review of Ms. Raterman’s testimony reveals that she served solely
as a conduit for Dr. Millette’s expert testing and opinions about the extent to
which Cashmere Bouquet exposed the Decedent to asbestos. Ms. Raterman
quoted verbatim and at considerable length from Dr. Millette’s reports. See
N.T. Raterman Deposition at 124-66. She did not rely on this extrajudicial
evidence to formulate her own, independent, expert opinion. Rather, as noted
by the trial court, Ms. Raterman was merely “parroting” Dr. Millette’s scientific
evidence. See Trial Ct. Op., 4/11/19, at 7.
Further, notwithstanding Ms. Raterman’s specific assertion that she has
“relied on Dr. Millette’s work in other circumstances” and that she commonly
relies on this type of evidence, other courts have found Dr. Millette’s scientific
evidence in this area to be scientifically unreliable. N.T. Raterman Deposition
at 138; Trial Ct. Op. at 9 (noting that another jurisdiction had excluded
testimony from Millette following a Frye hearing).
Under the circumstances of this particular case, Rule 703 does not apply
to permit Appellant to use Ms. Raterman as an expert to establish the extent
to which Cashmere Bouquet exposed the Decedent to asbestos because she
is merely parroting the expert opinion of Dr. Millette and does no independent
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3 Frye v. United States, 293 F. 1013 (D.C. Cir. 1913).
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analysis of her own. Primavera, 608 A.2d at 521. Moreover, in our view, to
hold otherwise would empower litigants to avoid strategically a Frye challenge
to novel or potentially unreliable scientific evidence by parroting such
evidence. We decline to do so. Therefore, we discern no abuse of discretion
in the trial court’s decision to preclude Ms. Raterman’s expert testimony.
Estate of Hicks, 984 A.2d at 961.
For similar reasons, we also reject Appellant’s assertion that the trial
court erred in precluding Dr. Dodson from presenting Mr. Poye’s analysis of
the Decedent’s lung tissue sample. See Appellant’s Br. at 33-35. According
to Dr. Dodson, Mr. Poye observed asbestos fibers in the sample tissue using
an electron microscope. N.T. Dodson Deposition at 61-62. However, as noted
by the trial court, “Dr. Dodson neither conducted the testing himself[,] nor
was he present while the testing was taking place.” Trial Ct. Op. at 9. Rule
703 does not permit an expert to serve as a mere conduit for the opinion of
another. Primavera, 608 A.2d at 521.
Finally, we reject Appellant’s contention that even without Ms.
Raterman’s testimony about the extent to which the Decedent was exposed
to asbestos, they proffered sufficient evidence nonetheless to withstand
summary judgment. See Appellant’s Br. at 14-22.
Summary judgment is appropriate where “the record clearly
demonstrates that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.” Summers v.
Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citation omitted). The
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trial court must consider facts of record and all reasonable inferences derived
therefrom in the light most favorable to the non-moving party; it must resolve
any doubts as to the existence of a genuine issue of material fact against the
moving party; and it may grant summary judgment only where the right to
such judgment is “clear and free from all doubt.” Id. (citation omitted).
Whether there is a genuine issue of material fact presents a question of law,
which on appeal we review de novo. Id.
In the simplest terms, an asbestos plaintiff must establish that use of a
defendant’s product exposed the plaintiff to airborne asbestos fibers and that
this exposure occurred with sufficient frequency, regularity, and proximity
such that a fact-finder may infer that the plaintiff’s exposure was a substantial
factor in causing her harm. Rost v. Ford Motor Co., 151 A.3d 1032, 1052-
53 (Pa. 2016) (requiring (1) exposures to asbestos that satisfy the “frequency-
regularity, and proximity” test and (2) competent medical testimony
establishing substantial factor causation); Gregg v. V-J Auto Parts, Co., 943
A.2d 216, 225-26 (Pa. 2007); Krauss v. Trane U.S. Inc., 104 A.3d 556, 563
(Pa. Super. 2014) (“[A] plaintiff must present evidence to show that he inhaled
asbestos fibers shed by the specific manufacturer’s product.”) (quoting
Eckenrod v. GAF Corp., 544 A.2d 50, 52-53 (Pa. Super. 1988)).
According to Appellant, the record demonstrates that the Decedent used
Cashmere Bouquet talcum powder regularly, over a considerable period.
Appellant’s Br. at 16. In addition, Appellant references geological evidence
suggesting that the talc sources used in Appellee’s product were contaminated
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with asbestos. Id. Solely based on this evidence, Appellant asserts, there
was an adequate evidentiary foundation for Dr. Maddox to opine, with a
reasonable degree of medical certainty, that the Decedent’s use of Cashmere
Bouquet talcum powder was a substantial factor in the development of her
disease. Id. at 21-22.
The record does not support this assertion. Rather, as conceded
subsequently by Appellant, see id. at 22, Dr. Maddox premised his causation
testimony on the opinions of Ms. Raterman regarding the extent to which the
decedent was exposed to asbestos:
Q. Okay. Based upon your review of Mrs. Raterman’s report,
Mrs. Brandt’s medical records, the deposition testimony by Mrs.
Brandt and her sisters, do you have an opinion within a reasonable
degree of medical certainty as to what caused Mrs. Brandt’s
mesothelioma?
...
[Dr. Maddox:] Yes, sir. I believe that her malignant
mesothelioma was caused by her cumulative asbestos exposure,
including, most significantly, her exposure to asbestos from
[Cashmere Bouquet] talcum powder usage.
N.T. Maddox Deposition, 1/29/19, at 93.
Further, when asked to assume that the exposure testimony of Ms.
Raterman was accurate, specifically that Ms. Brandt’s daily use of Cashmere
Bouquet resulted in exposure to asbestos at levels “likely on the order of
10,000 times background or more”, Dr. Maddox opined, “I believe that the
exposures that you have just described were the cause of her lethal malignant
mesothelioma.” Id. at 96-97; see N.T. Raterman Deposition at 181
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(quantifying the Decedent’s exposure as potentially “10,000 times background
[levels normally present in the environment]”).
Because Ms. Raterman was merely parroting another expert’s opinion,
the trial court properly excluded her exposure testimony. See supra.
Therefore, Dr. Maddox’s causation testimony was without an adequate
evidentiary foundation. Absent competent medical testimony establishing
substantial factor causation, summary judgment was appropriate in this case.
See Rost, 151 A.3d at 1052-53; Krauss, 104 A.3d at 568 (“A plaintiff cannot
survive summary judgment when mere speculation would be required for the
jury to find in plaintiff's favor.”). Accordingly, we affirm the trial court’s
decision.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/20
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