Bader v. Johnson & Johnson

Filed 12/23/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
SUSAN JEAN BADER, as
Representative, etc.,
Plaintiff and Respondent, A158868
v. (Alameda County
JOHNSON & JOHNSON et al., Super. Ct. No.
RG18923615)
Defendants and
Appellants.
Patricia Schmitz asserted causes of action for strict
products liability, negligence, and fraud against defendants,
alleging that their cosmetic talc products were contaminated with
asbestos and that her exposure thereto caused her
mesothelioma.1 A jury returned a special verdict in plaintiff’s
favor.
In this appeal, defendants Johnson & Johnson and Johnson
& Johnson Consumer, Inc. (collectively, J&J) argue: (1) the trial
court abused its discretion by admitting certain expert testimony;
(2) the trial court gave an adverse inference instruction that was
unjustified and prejudicial; (3) the trial court erred when it failed
Ms. Schmitz passed away after trial, and her sister, Susan
1
Jean Bader, became the personal representative and named
plaintiff.
1
to grant a mistrial after certain references to talc causing ovarian
cancer; (4) the trial court failed to instruct the jury on a critical
element of fraudulent concealment; and (5) the trial court erred
in entering judgment nunc pro tunc.
Defendant Colgate-Palmolive Company (Colgate) argues:
(1) the trial court abused its discretion by admitting certain
expert testimony; (2) the jury instructions on causation were
erroneous; (3) the evidence was insufficient to support a verdict
against Colgate for fraudulent concealment; and (4) the trial
court erred in entering judgment nunc pro tunc.
We affirm.
BACKGROUND
The Lawsuit
When Schmitz was a child, she applied J&J’s Baby Powder
(JBP) to her siblings, and she herself used it from ages 11 to 13.
She later applied JBP to her aging father and mother when she
cared for them. Schmitz began using Colgate’s Cashmere
Bouquet on a daily basis from the age of 13 until her late forties.2
When she applied Cashmere Bouquet and JBP, they created
visible dust that she breathed in. Schmitz also used perfumed
talc sold by Avon.
Schmitz was diagnosed with mesothelioma in the summer
of 2018. She filed suit against ten defendants, including J&J,
Colgate, Avon, and many talc suppliers, alleging that defendants
2 Colgate stopped selling Cashmere Bouquet in the United
States in 1995.
2
knowingly concealed the presence of asbestos in their products
and the health risks the products posed.
The Trial
“Asbestos” generally refers to a group of six minerals—
chrysotile, and the five amphiboles of amosite, crocidolite,
tremolite, anthophyllite, and actinolite—that, when occurring in
an “asbestiform habit,” are subject to government regulation.3
Other minerals, such as talc, can form in asbestiform habit but
are not regulated as asbestos.
The trial involved a variety of disputed issues, including
whether the experts correctly identified various structures as
asbestos, whether the talc products Schmitz used contained
asbestos, and, if so, whether that use substantially contributed to
her risk of developing mesothelioma. As discussed post, there
was conflicting evidence regarding whether only the six asbestos
minerals formed in asbestiform habit are capable of causing
mesothelioma, and whether a threshold level of asbestos
exposure is required before the risk of mesothelioma increases.
William Longo, Ph.D., who was qualified as an expert in
material science, forensic engineering, and asbestos testing and
exposure, testified for plaintiff regarding his testing of Cashmere
Bouquet and JBP samples. Dr. Longo followed “counting rules”
from various analytical methods for microscopy in his testing,
and these rules govern what constitutes a regulated asbestos
3“[H]abit refers to the form, crystal structure and texture
in which a mineral is found in nature.” (Strobel v. Johnson &
Johnson (2021) 70 Cal.App.5th 796, 804 (Strobel).)
3
structure. Dr. Longo explained that his laboratory tested 57
container samples and 15 railroad car samples of JBP that were
obtained from J&J’s historical museum. He found asbestos in 68
percent of these museum samples. He also tested two sets of
Cashmere Bouquet samples—one set of 38 provided by various
plaintiffs’ attorneys, and one set of 20 provided by Colgate’s hired
defense laboratory. He found asbestos in 30 of 38 of the first set,
and in 20 of 20 of the second set. He characterized the amounts
of asbestos found in cosmetic talc as trace amounts.
Along with Dr. Longo, plaintiff’s microscopy expert Lee
Poye tested 16 J&J Shower to Shower samples from the 1970s,
1980s, and 1990s that were produced by J&J’s attorneys. He
detected asbestos in 11 of the 16 samples. Dr. Longo testified
that J&J sourced its talc from Vermont mines for the Shower to
Shower product for many years, including in the 1970s.
Pathologist Dr. Jerrold Abraham testified that there is a
dose-response concept for mesothelioma such that every asbestos
exposure increases a person’s risk of getting the disease. He
opined that all of Schmitz’s exposures contributed to increase the
risk, and that there is no known safe level of asbestos exposure.
According to Dr. Abraham, people who have had very low or brief
exposures are at increased risk of developing mesothelioma.
Dr. Allan Smith, an epidemiologist, testified that the
higher the level of asbestos inhalation, the greater the risk of
getting mesothelioma, and there is no minimum safe level of
exposure to asbestos. If a patient has mesothelioma caused by
asbestos, then all the asbestos dust that patient inhaled over the
4
years was a significant factor increasing the risk of getting
cancer. Asked to assume that Schmitz was exposed to JBP up
until she was 13, used Cashmere Bouquet for years, and that
these products contained asbestos, Dr. Smith opined that
Schmitz’s mesothelioma was caused by inhalation of asbestos
dust over many years. In his view, “Any part of the causal dose is
important and meaningful and could be described, then, as a
substantial factor.”
Dr. Barry Horn, a lung specialist and critical care doctor,
testified that mesothelioma is a dose-dependent disease, and the
more chemical carcinogen exposure, the greater one’s likelihood
of developing cancer. He was asked to assume that Schmitz used
JBP on herself and her sisters, her family used JBP, she was
around the dusty product, she used Cashmere Bouquet for about
30 years, she used some Avon product, and those products
contained trace amounts of asbestos. He testified that each of
her exposures contributed to the risk of getting mesothelioma.
Dr. Egilman, an occupational and preventive medicine
physician and epidemiologist, opined that Schmitz suffered from
malignant pleural mesothelioma caused by inhaling asbestos and
fibrous talc when she used a variety of cosmetic talc products
over her life. He testified that Cashmere Bouquet and JBP
historically contained asbestos. With little explanation, he
testified that he calculated that Schmitz inhaled between 42 and
61 billion asbestos fibers over her lifetime from the talc products,
which was over the allowable OSHA 7 billion fiber lifetime limit
for workers, and a significant factor in causing Schmitz’s
5
mesothelioma. He stated the amount of asbestos it takes to cause
cancer is “really, really low,” and there is no known safe level of
exposure. He testified that exposure below threshold limit values
does not mean you would not expect to see cancer, and the OSHA
threshold produces excess mesotheliomas for workers even
though they are taught to minimize dust exposure. He also
opined that both fibrous talc and cleavage fragments can cause
mesothelioma.
For the defense, Dr. Matthew Sanchez, an expert in
minerology, testified that one would not expect to find asbestos in
the Italian, North Carolina, or Montana mines that had been
used as a talc source for Cashmere Bouquet. He tested Italian
talc from the Val Germanasca mines used by both Colgate and
J&J as sources of cosmetic talc, and he found no asbestos. He
found no asbestos in the talc he tested from the Vermont and
Chinese talc mines used for JBP. He found no asbestos in the
Cashmere Bouquet samples that he tested. For JBP, he found
asbestos in one sample in the first set of 30 samples that he and
Dr. Longo tested, but he concluded this sample was contaminated
with other materials based on its unusual content. The
remaining set of JBP museum samples did not contain asbestos.
Based on his expertise and testing, he opined that JBP does not
contain asbestos.
Dr. Sanchez discussed asbestos testing techniques, and he
explained that x-ray diffraction (XRD) is used to identify the type
of mineral. Polarized light microscopy (PLM) allows
identification of the gross morphology—i.e., what the particle
6
shapes and sizes are, and transmission electron microscopy
(TEM) (Strobel, supra, 70 Cal.App.5th at p. 806), allows for
identification of smaller particles using a higher magnification.
Dr. Sanchez believed that, generally, single particles in a talc
powder sample are not sufficient to draw meaningful conclusions
about the growth habit in which the particle formed. He opined
that Dr. Longo had misidentified some of the minerals present
and continually reported asbestos in JBP and Cashmere Bouquet
where he was looking at common cleavage fragments.
Pulmonologist Dr. David Weill conceded that asbestos
causes pleural mesothelioma but testified that there must be a
sufficient dose of exposure, and there is no evidence that
exposure to background levels of asbestos elevates the risk of
disease. He testified that women are less likely to get pleural
mesothelioma than men, and Schmitz’s tumor was spontaneous
mesothelioma. He opined that cosmetic talc does not cause
mesothelioma.
Epidemiologist Suresh Moolgavkar, Ph.D. & M.B.B.S.,
opined that 80 to 90 percent of mesotheliomas in women are not
attributable to asbestos exposure. At exposure to amphibole
asbestos at 5 fibers per cc-year, there is an increased risk of
cancer. He opined that Schmitz’s cancer was caused by “ongoing
biological processes” and exposure to talc had nothing to do with
it. And he said there is no correlation between cosmetic talc and
mesothelioma. Nonetheless, when asked whether there was a
level of exposure to an asbestos that is considered safe for human
beings, he responded that it “is cautious to assume that no level
7
of exposure to a toxic substance is safe for human beings to
expose themselves to.” He also confirmed on cross-examination
that he had previously stated that, for amphibole asbestos, he
does not know of a bright line or threshold below which there
might not be some increased risk of pleural mesothelioma.
Jennifer Sahmel, an industrial hygienist, calculated
Schmitz’s worst case exposure from Cashmere Bouquet. She
explained that there are background levels of asbestos of .00003
fibers per cc to .006 fibers per cc in the air that we breathe.
There is no evidence of risk of mesothelioma at background or at
OSHA’s 1.1 fiber per cc-year limit. From Cashmere Bouquet,
Schmitz’s cumulative exposure to asbestos was .008 fibers per cc-
year, and she stated that no scientific publications or governing
agencies list exposure limits in total number of fibers rather than
in concentration (i.e., fibers per cc of air). On cross-examination,
she conceded that Schmitz’s calculated exposure had to be added
to background, resulting in a technical cumulative exposure
above background, and she was asked only to consider asbestos
exposure from Cashmere Bouquet. When asked whether, from
her professional standpoint, applying talcum powder with
asbestos to babies is acceptable, she conceded it was not.
Brooke Taylor Mossman, Ph.D., testified as an expert in
the area of cell biology with an emphasis on the development of
mesothelioma. She opined that asbestos causes mesothelioma,
and asbestos has many properties that are important in reacting
with cells to cause changes that are linked to cancer. According
to Dr. Mossman, nonasbestiform cleavage fragments and fibrous
8
talc do not cause mesothelioma because they do not have the
ability to generate the chemicals that interact with cells, change
DNA, and cause cancer.
The jury returned a verdict for plaintiff against Colgate
and J&J on negligence, strict products liability, and concealment.
It awarded $2,003,006 in economic damages, consisting of
$150,000 in past medical expenses, $75,000 in future medical
expenses, $1,287,552 in past and future lost income, and
$490,454 in past and future household services. It further
awarded $3.5 million in past non-economic damages and $6.5
million in future non-economic damages, for a total award of
$12,003,006. The jury allocated 40 percent responsibility to
Colgate, 40 percent to J&J, and 20 percent to Avon. As to
punitive damages, the jury found that plaintiff failed to prove
malice, oppression, or fraud as to Colgate, but deadlocked as to
J&J.
DISCUSSION
I. Expert Opinion Challenges
Defendants make three arguments with respect to
plaintiff’s experts’ opinions regarding causation. First, they
argue that Dr. Egilman did not have a reliable foundation to
opine that asbestiform or fibrous talc, uncontaminated by
asbestos, causes mesothelioma. Second, Colgate argues that the
trial court erred in admitting Dr. Longo’s unsound asbestos
contamination analysis due to concerns with the chain of custody
for the Cashmere Bouquet samples he tested. Finally, both
defendants argue that Dr. Longo’s exposure opinion should have
9
been excluded under Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 769 (Sargon), and
Colgate argues that certain aspects of Dr. Egilman’s opinion
should have similarly been excluded. We consider these
arguments in turn.
A. Applicable Legal Principles
Trial judges have a “substantial ‘gatekeeping’
responsibility” to ensure that an expert’s opinion is based on both
reliable material and sound reasoning. (Sargon, supra,
55 Cal.4th at p. 769.) Indeed, the trial court has the “duty to act
as a ‘gatekeeper’ to exclude speculative expert testimony.” (Id. at
p. 753.)
The source of this gatekeeping responsibility is Evidence
Code sections 801 and 802. Evidence Code section 801 limits
expert testimony to opinions that are related to a “subject that is
sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact,” and that are “[b]ased on
matter . . . that is 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, subds. (a) & (b).)
Evidence Code section 802 provides that a witness, including an
expert, may “state on direct examination the reasons for his
opinion and the matter . . . upon which it is based, unless he is
precluded by law from using such reasons or matter as a basis for
his opinion.” In other words, “Evidence Code section 801 governs
judicial review of the type of matter; Evidence Code section 802
governs judicial review of the reasons for the opinion.” (Sargon,
10
supra, 55 Cal.4th at p. 771.) Under these provisions, “the trial
court acts as a gatekeeper to exclude expert opinion testimony
that is (1) based on matter of a type on which an expert may not
reasonably rely, (2) based on reasons unsupported by the
material on which the expert relies, or (3) speculative.” (Id. at
pp. 771–772.) “[A] court may inquire into, not only the type of
material on which an expert relies, but also whether that
material actually supports the expert’s reasoning.” (Id. at p.
771.) “[T]he matter relied on must provide a reasonable basis for
the particular opinion offered, and . . . an expert opinion based on
speculation or conjecture is inadmissible.” (Id. at p. 770.)
“The trial court’s preliminary [or gatekeeping]
determination whether the expert opinion is founded on sound
logic is not a decision on its persuasiveness. The court must not
weigh an opinion’s probative value or substitute its own opinion
for the expert’s opinion. Rather, the court must simply determine
whether the matter relied on can provide a reasonable basis for
the opinion or whether that opinion is based on a leap of logic or
conjecture. The court does not resolve scientific controversies.
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. [Citation.] The goal
of trial court gatekeeping is simply to exclude ‘clearly invalid and
unreliable’ expert opinion. [Citation.] In short, the gatekeeper’s
role ‘is to make certain that an expert, whether basing testimony
upon professional studies or personal experience, employs in the
11
courtroom the same level of intellectual rigor that characterizes
the practice of an expert in the relevant field.’ ” (Sargon, supra,
55 Cal.4th at p. 772.) A judge has broad discretion to exclude or
admit expert testimony under Evidence Code sections 801 and
802, and we overturn an evidentiary ruling only if we conclude it
is arbitrary or irrational. (Id. at p. 773.)
B. Asbestiform or Fibrous Talc
Additional Background
After defendants filed preliminary “placeholder” motions,
Colgate filed motion in limine No. 4A to exclude Dr. Egilman’s
anticipated testimony on the ground that he had no scientific
foundation to opine that fibrous, or asbestiform, talc causes
mesothelioma. J&J joined. Plaintiff opposed, arguing that Dr.
Egilman had properly opined that fibrous talc causes
mesothelioma. Plaintiff's supporting papers included materials
from the World Health Organization’s International Agency for
Research on Cancer (IARC) which, according to plaintiff,
characterized talc containing asbestiform fibers as a “Group 1”
carcinogen4. At the hearing on the motion, Colgate argued there
was not a single peer-reviewed article stating that fibrous talc,
uncontaminated by asbestos, causes mesothelioma, and plaintiff
An IARC “Group 1” agent is an agent that is carcinogenic
4
to humans. “This category is used when there is sufficient
evidence of carcinogenicity in humans. Exceptionally, an agent
may be placed in this category when evidence of carcinogenicity
in humans is less than sufficient but there is sufficient evidence of
carcinogenicity in experimental animals and strong evidence in
exposed humans that the agent acts through a relevant
mechanism of carcinogenicity.”
12
disagreed, citing the IARC materials. The court denied Colgate’s
motion.
At trial, Dr. Egilman testified that it was his opinion that
Schmitz’s mesothelioma “was caused by inhaling asbestos and
fibrous talc when she used a variety of cosmetic talc products
over her life.” He testified that IARC had published that
asbestiform talc is a “Class 1 carcinogen,” and that was his
opinion as well. He explained that he held this opinion because
talc is chemically similar to anthophyllite asbestos; there are
transition fibers that are talc on one end and asbestos on the
other (either tremolite, actinolite, or anthophyllite); the surface
properties of asbestiform talc are the same as anthophyllite with
the same chemical structure; and the surface properties are what
cause change in DNA and make asbestos carcinogenic.
Dr. Egilman also testified that he was familiar with
cleavage fragments. He stated that he would not agree that
exposures to cleavage fragments that are “3 to 1 aspect ratio” are
not harmful, and he was not aware of scientific literature
supporting that proposition.5 He testified about case studies
where taconite miners were exposed to cleavage fragments that
caused a large number of mesotheliomas. When asked to identify
the difference between asbestos fibers and cleavage fragments,
Dr. Egilman pointed to a picture of a bundle of asbestos fibers
and explained that the van der Waals chemical force kept the
bundle together. He said that “chemically-the-same asbestos”
5“Aspect ratio” refers to the length to diameter ratio. (See
Strobel, supra, 70 Cal.App.5th at p. 805.)
13
has “natural cleavage points” held together by the same van der
Waals force, and, if you manipulate the latter, it will split the
same as fiber bundles will split, with the resulting product being
“the exact size and shape as asbestos.” He continued, “And
studies comparing the surface properties of those cleavage
fragments to asbestos show that they’re the same, so that there’s
no reason to think in the body, they would be handled any
differently or cause any different disease, because it’s the same
size and shape, it’s the same chemical composition, and it’s the
same surface properties. [¶] So there’s no reason logically to
think that the body would react differently from—from one to
another.” Dr. Egilman added that a paper published the prior
year had looked at an amosite asbestos product and found that
most of that product consisted of cleavage fragments, and “there’s
no question that product causes mesothelioma.” Dr. Egilman
confirmed that Dr. Mossman had not published anywhere that
cleavage fragments of tremolite, actinolite, or anthophyllite do
not cause mesothelioma, and he told the jury that, from a public
health standpoint, if cleavage fragments are “the same size and
shape and chemical composition as asbestos,” it was not
appropriate to say they were not harmful or that they should not
be called asbestos.
At the end of his testimony, the court read the following
jury question: “Q. [I]s it your opinion that cleavage fragments of
certain size, shape, and structure, even if nonasbestos, are
carcinogenic and cause mesothelioma?” Dr. Egilman responded,
“No. It has to be chemically asbestos. Or similar. Fibrous talc is
14
essentially similar. So just a cleavage fragment of some random
rock, okay, that’s not—would not, in my opinion—there’s not data
to show that that would cause mesothelioma.” He also clarified
that OSHA does not require asbestos to be formed in a bundle to
be regulated as asbestos, OSHA’s “standard is size and shape[,]”
and “[a]nything that meets the size and shape and length is—is
regulated as asbestos.”
The Trial Court Did Not Abuse Its Discretion In
Admitting Dr. Egilman’s Testimony
Defendants argue that Dr. Egilman’s opinion lacks a
reliable foundation and should have been excluded as speculative
under Sargon because there is no scientific support for his
opinion that fibrous talc causes mesothelioma. In light of the
record before the trial court, we find that defendants have failed
to establish that the court abused its discretion in admitting Dr.
Egilman’s opinion.
The record contains a sufficient basis for the trial court’s
conclusion that Dr. Egilman’s testimony was not subject to
exclusion under Sargon—in particular, materials from the IARC
Monographs and other materials discussed post.6
6 Some of Dr. Egilman’s statements regarding his
supporting materials are vague, and certain of the materials he
cites do not appear to provide support for his opinion. For
example, Dr. Egilman purported to rely on an article from “V. L.
Roggli et al.,” but plaintiff submitted only three even-numbered
pages from this article. What appears in the submitted pages
suggests that the article concludes that, based on the presence of
tremolite fibers in the lungs of the mesothelioma patients studied
therein, tremolite fibers likely caused the mesothelioma and were
not removed from chrysotile during the milling process.
15
Through its Monographs, the IARC seeks to prepare and
publish, with the help of international working groups of experts,
critical reviews and evaluations of evidence on the carcinogenicity
of a wide range of human exposures. Separate “working groups”
develop each IARC Monograph after reviewing “all pertinent
epidemiological studies and cancer bioassays in experimental
animals,” as well as mechanistic and other relevant data. The
“agents,” or substances, reviewed in the IARC Monographs are
characterized based on level of carcinogenicity, and “Group 1”
agents are those known to cause cancer in humans.7
In her papers opposing defendants’ motions to exclude Dr.
Egilman’s opinion that fibrous talc causes mesothelioma, plaintiff
identified specific IARC literature upon which Dr. Egilman
relied. Plaintiff pointed to IARC Supplement 7, which listed “talc
containing asbestiform fibres” as a “Group 1” agent, mentioning
the occurrence of mesothelioma and lung cancers, and listed “talc
not containing asbestiform fibres” as a “Group 3” agent.8
Plaintiff also pointed out that Dr. Egilman relied on IARC
Monograph 93. That Monograph, published in 2010, included
Plaintiff’s attachment of a few pages of an incomplete article is
not, by itself, sufficient to establish a reliable, supportive source
for Dr. Egilman’s opinion.
7 “The term ‘agent’ refers to any entity or circumstance that
is subject to evaluation in a Monograph,” and includes chemicals,
groups of related chemicals, complex mixtures, occupational or
environmental exposures, cultural or behavioral practices,
biological organisms, and physical agents.
8The “Group 3” category “is used most commonly for agents
for which the evidence of carcinogenicity is inadequate in humans
and inadequate or limited in experimental animals.”
16
review of the agent denominated “talc not containing asbestos or
asbestiform fibres.” IARC Monograph 93 stated that “talc not
containing asbestiform fibres” had previously been reviewed in
IARC Supplement 7, and the review in IARC Monograph 93
superseded the prior review. IARC Monograph 93 explained,
“The review of talc in Supplement 7 led to evaluations for two
agents: talc containing asbestiform fibres and talc not containing
asbestiform fibres. The term ‘asbestiform fibre’ has been
mistaken as a synonym for ‘asbestos fibre’ when it should be
understood to mean any mineral, including talc, when it grows in
an asbestiform habit. To avoid confusion over the term
‘asbestiform fibre’, the present Working Group decided that it is
scientifically more precise to call the agent ‘talc not containing
asbestos or asbestiform fibres’, and this evaluation supersedes
the earlier review of talc not containing asbestiform fibres.”
(Italics added.) IARC Monograph 93 continued, “The present
Working Group also decided to expand the name of the Group-1
agent from ‘talc containing asbestiform fibres’ to ‘talc containing
asbestos or other asbestiform fibres’. The present Working Group
reviewed the earlier Monograph on talc containing asbestiform
fibres and determined that the expanded name is consistent with
what had been evaluated in Supplement 7. No update was
undertaken for this Group-1 agent.”9
9 Citing Dr. Egilman’s deposition testimony from another
case, defendants argue for the first time on appeal that Dr.
Egilman’s definition of “fibrous talc” differs from IARC’s
characterization because Dr. Egilman purportedly does not mean
talc formed in asbestiform habit. But the record contains
17
Disagreeing that the IARC classified asbestiform talc as a
Group 1 agent, defendants cite to IARC Monograph 100C,
published in 2012, which includes an update on asbestos.
Defendants point to the following statement in IARC Monograph
100C: “For talc that contains asbestiform fibres, previous
Working Groups assessed studies on talc described as containing
asbestiform tremolite and anthophyllite (IARC, 1987a, b). These
fibres fit the definition of asbestos, and therefore a separate
review of talc containing asbestiform fibres was not undertaken
by this Working Group.”10 Defendants assert that the IARC
additional deposition testimony from Dr. Egilman wherein he
clarified that he did not believe that platy talc caused
mesothelioma, but “fibrous talc,” meaning talc that forms as true
asbestiform fibers, caused cancer.
10 The IARC Monograph also points the reader to the
“General Remarks.” Therein, IARC Monograph 100C states,
“The previous IARC Monographs on Talc Containing Asbestiform
Fibres (Volume 42 and Supplement 7, IARC, 1987a, b) concerned
talc described as containing asbestiform tremolite and
anthophyllite. These fibres fit the definition of asbestos and
therefore a separate review of talc containing asbestiform fibres
was not undertaken. The studies on talc containing asbestiform
fibres were considered when developing the Monograph on
asbestos. Talc containing asbestos as well as other mixtures
containing asbestos should be regarded as carcinogenic to
humans. [¶] In evaluating the carcinogenicity of asbestos fibres,
the Working Group evaluated experimental data using the six
types of asbestos fibres (Chrysotile, Amosite, Crocidolite,
Tremolite, Actinolite and Anthophyllite) and erionite based on in
vitro cellular assays and/or cancer bioassays. It should be
understood that minerals containing asbestos in any form should
be regarded as carcinogenic to humans. The Working Group
agreed that the most important physicochemical properties of
asbestos fibres relevant for toxicity and carcinogenicity are
surface chemistry and reactivity, surface area, fibre dimensions,
18
never analyzed the effects of talc containing “asbestiform fibres,”
but not asbestos.
At least based on the information before it, the trial court
could reasonably conclude that Dr. Eligman’s opinion had some
support in materials from the IARC. The IARC Working Group
for Monograph 100C reviewed prior Monographs and concluded
the Group 1 agent deemed carcinogenic in IARC Supplement 7
was talc with asbestiform tremolite and anthophyllite. In
contrast, in its review of IARC Supplement 7, the Working Group
for IARC Monograph 93 opined that the studies and Supplement
7 supported the conclusion that the broader agent “talc
containing asbestos or asbestiform fibres” was a Group 1 agent,
expressly defining “asbestiform fibres” to include talc growing as
fibers in an asbestiform habit. Defendants did not address the
apparent conflict in how Monographs 93 and 100C construed
Supplement 7, nor did they attempt to resolve it. The trial
court’s gatekeeping role does not involve choosing between
competing expert opinions (Sargon, supra, 55 Cal.4th at p. 772),
and there was no request for an evidentiary hearing on Dr.
Egilman’s opinion in motion in limine No. 4A.
In addition, Dr. Egilman relied on a statement made in a
published letter to the editor of an academic journal by two
doctors who maintained that talc should not be used for
and biopersistence. Extrapolation of toxicity to other crystalline
mineral fibres should not be done in the absence of
epidemiological or experimental data based on in vitro and in
vivo assays.” (Italics removed.)
19
pleurodesis in non-malignant patients because “[e]ven if the
product [i.e., the talc] is ‘asbestos-free,’ the mechanism of cancer
induction by asbestos (i.e., metal-catalyzed radical generation) is
similarly pertinent to talc and the occurrence of fibrous forms of
the sheet silicate itself (Figures EI and E2 in the online data
supplement to this letter) raises issues about clearance and long-
term safety.” The tone of the doctors’ letter is cautionary, but its
substance reflects two scientists expressing their opinion that the
mechanism of cancer induction by asbestos is similarly pertinent
to fibrous talc.
Dr. Egilman also cited animal studies that support his
opinion. He stated, “Animal studies show that talc, including
fibrous talc, is significantly correlated with lung lesions, and talc
fibers have repeatedly been found in cancer tissue,” and he
described one such study. He further stated that Dr. Boorman,
an employee of the National Institutes of Environmental Health
Sciences, reviewed a National Toxicology Program (NTP) study of
talc on rats and mice, and Dr. Boorman found “talc fibers” in “the
lungs of exposed rodents, some of whom developed cancer.” Dr.
Egilman reported that J&J subsequently pressured Dr. Boorman
to change the term “talc fiber” to “talc particle” in the published
report, and he went on to state, “The NTP study reported a
statistically significant association in female rats between all
types of lung cancers and the highest levels of talc exposure.” On
appeal, citing deposition testimony from one of its corporate
witnesses admitted at trial, J&J states that the NTP symposium
concluded the opposite—that “talc was not a causative effect in
20
the cancer of any rats that got cancer.” But neither defendant
offered that testimony or similar evidence at the in limine stage.
Finally, Dr. Egilman stated that “[h]uman case reports also
support the carcinogenicity of fibrous talc,” he named the three
supporting case reports, and defendants did not address this
material in the trial court.
In sum, the materials plaintiff presented to the trial court
in support of Dr. Egilman’s fibrous talc testimony, at least some
of which defendants failed to address, provided a reasonable
basis for the opinion at issue, and we cannot say the court abused
its discretion in admitting this testimony. While defendants
maintain that the broader consensus of experts do not believe
that fibrous talc causes cancer, they sought to exclude Dr.
Egilman’s testimony under Sargon, which does not speak to
whether a theory has achieved a consensus in the field sufficient
to render it “generally accept[ed].” (Cf. Sargon, supra, 55 Cal.4th
at p. 772, fn. 6, citing People v. Leahy (1994) 8 Cal.4th 587, 604
and People v. Kelly (1976) 17 Cal.3d 24 [admissibility of evidence
obtained by use of a new scientific technique depends upon
whether technique is generally accepted as reliable in relevant
scientific community].)11 On this record, the court did not abuse
11To the extent that defendants now contend that the trial
court should have excluded Dr. Egilman’s fibrous talc opinion
because it was a novel theory not generally accepted within the
relevant scientific community, we emphasize that their motion to
exclude did not challenge his testimony based on Kelly and its
progeny. We express no view on whether such an argument
would have been successful. (Compare People v. Davis (2022)
75 Cal.App.5th 694, 711 [“The Kelly test applies only to expert
21
its discretion in permitting Dr. Egilman to offer his opinion that
fibrous talc causes mesothelioma.
Any Evidentiary Error Was Harmless
Even if the court erred in allowing Dr. Egilman’s fibrous
talc theory, the error was not prejudicial. Defendants argue that
Dr. Egilman’s opinion that fibrous talc could cause mesothelioma
was prejudicial because it allowed the jury to sidestep deciding
whether the talc products Schmitz used were contaminated with
the asbestiform variety of the six relevant minerals. Defendants
analogize to a recent New Jersey opinion reversing a plaintiff’s
verdict in a case involving JBP and another J&J talcum powder
where the court found a deficient scientific foundation for expert
testimony that non-asbestiform cleavage fragments of the six
relevant asbestos minerals can cause mesothelioma. (Lanzo v.
Cyprus Amax Minerals (N.J. Sup. 2021) 254 A.3d 691 [467
N.J.Super. 476, 487, 517–518].) As set forth post, in light of our
review of the record and Dr. Egilman’s introduction of the opinion
that Lanzo rejected as unsound—to which defendants here did
testimony ‘ “ ‘ “based, in whole or in part, on a technique, process,
or theory which is new to science and, even more so, to the law” ’ ”
’ ”; italics added] with Roberti v. Andy’s Termite (2002) 113
Cal.App.4th 893, 901–902 [reversing trial court’s exclusion of
expert opinion testimony that pesticide caused plaintiff’s autism;
“[Plaintiff’s experts] did not rely upon any new scientific
technique, device or procedure that has not gained general
acceptance in the relevant scientific or medical community.
Rather it was the theory of causation, that [the pesticide] caused
plaintiff’s autism, that has not gained general acceptance in the
relevant medical community. The Kelly test is not applicable
even though the proffered evidence presents a new theory of
medical causation”], italics added.)
22
not object—we perceive no prejudice from the admission of his
opinion as to fibrous talc. (Cassim v. Allstate Ins. Co. (2004)
33 Cal.4th 780, 804 [error in evidence admission is reversible if
there is a reasonable probability, or a reasonable chance,
appellant would have obtained a more favorable result].)
In opening argument, plaintiff promised to challenge Dr.
Mossman’s “cleavage fragment hypothesis” that non-fibrous
asbestos cleavage fragments do not cause cancer or disease, and
plaintiff argued that fibrous talc causes cancer. Defense counsel
countered that Dr. Mossman would explain that talc and
cleavage fragments do not cause mesothelioma.
During the testimony phase, Dr. Mossman opined that,
based on her in vitro experiments, non-asbestos cleavage
fragments and fibrous talc do not have the capacity to generate
the chemical signals that cause mesothelioma, as asbestos does.
Dr. Weill testified the body can destroy cleavage fragments,
whereas it cannot do the same for asbestiform particles of the six
asbestos minerals, although he conceded the French government
released a paper disagreeing with his conclusion. As set forth
above, Dr. Egilman testified that cleavage fragments cause
mesothelioma, as does fibrous talc. To the cleavage fragment
issue, Dr. Abraham added that research suggesting that a
tremolite cleavage fragment cannot cause asbestos disease
“doesn’t make any sense,” although he recognized there were no
pure cleavage fragment studies showing that such fragments
cause mesothelioma. And Dr. Sanchez testified that the particles
Dr. Longo identified in the JBP and Cashmere Bouquet samples
23
he tested were amphibole cleavage fragments that Dr. Longo
misidentified as asbestiform fibers.
In closing argument, plaintiff argued she had proven all
she had promised in her opening statement, and she argued that
case reports were significant to show causation. Plaintiff
discredited Dr. Mossman’s “cleavage fragment doesn’t hurt
defense” by arguing that Mossman was biased to the talc
industry, and she never tested cosmetic talc. Plaintiff argued
that asbestiform talc causes mesothelioma. Defendants, in turn,
argued amphibole cleavage fragments are not asbestos; Dr.
Mossman’s studies show that amphibole cleavage fragments and
talc particles do not cause mesothelioma; and Dr. Longo
identified cleavage fragments in his testing.
On this record, defendants have not established prejudice.
They contend that prejudice was plain because, if the jury
believed Dr. Egilman’s opinion on fibrous talc, it may have
concluded that the asbestiform/non-asbestiform distinction did
not matter, and might therefore have reached a verdict without
finding defendants’ products were contaminated with the
asbestiform variety of the six asbestos minerals. But defendants
did not object to the introduction of testimony that cleavage
fragments cause mesothelioma, this theory was advanced
similarly to the fibrous talc theory, and defendants’ own expert
told the jury that Dr. Longo misidentified amphibole cleavage
fragments in defendants’ products as asbestiform fibers. Indeed,
Colgate concedes in its briefing that Dr. Egilman’s views “about
24
cleavage fragments are indistinguishable from his views about
fibrous talc.”12
Defendants fail to show prejudice from Dr. Egilman’s
testimony regarding fibrous talc for the additional reason that
they did not object to Dr. Abraham’s testimony suggesting that
fibrous talc causes mesothelioma. When asked whether it is
difficult to answer the question of whether, for example, fibrous
talc causes mesothelioma because it co-exists with asbestos fibers
in the same mines, Dr. Abraham confirmed that was the case.
He did concede that he had not seen any evidence that
“nonasbestos fibers” cause mesothelioma, and he had only
“attributed mesothelioma to asbestos exposure.” Nonetheless, in
response to a question about whether he had studied the ability
of fibrous talc to cause inflammation and irritation in human cell
tissue, Dr. Abraham testified: “Yes. I mean, in the people that
have a lot of the fibrous talc exposure, especially with the
noncosmetic talc, the industrial talcs, they develop lung fibrosis
that looks like asbestosis because there’s so much fibrous talc in
the—in those mines in some of those industrial talc products.
And some of them have developed mesotheliomas as well.”
Furthermore, without objection, Dr. Abraham confirmed that in a
1997 report in a mesothelioma case allegedly caused by JBP, he
wrote that he had “previously reviewed several cases of
mesothelioma apparently related to asbestiform talc fibers.”
12At oral argument, plaintiff’s counsel stated that no
expert testified that cleavage fragments cause mesothelioma, but
the record does not support that assertion.
25
In sum, defendants fail to show reversible prejudice from
the admission of Dr. Egilman’s testimony that fibrous talc can
cause mesothelioma.
C. Chain of Custody for Cashmere Bouquet Samples
Additional Background
Colgate’s motion in limine No. 1 attacked the “purported
testing of talc by [p]laintiff’s testing experts.” Colgate asserted
that Dr. Longo could not authenticate the 38 samples of
Cashmere Bouquet that came from various plaintiffs’ attorneys,
who in turn obtained them from: the internet or antique shops;
Colgate-provided vintage containers collected by employees that
were displayed as memorabilia at Colgate facilities; and an
asbestos laboratory at the Mount Sinai School of Medicine.
Colgate’s main argument for excluding the test results for the 38
samples was that an expert cannot reasonably rely on test results
of samples that are not adequately shown to reflect or represent
the items in question. In a single sentence in its motion, Colgate
mentioned that Dr. Longo had recently reported on 20 additional
Cashmere Bouquet samples, but Colgate stated that, at that
time, it had no information about how those samples were
obtained. Plaintiff opposed the motion, arguing there was no
physical evidence of tampering on the containers; many of the
containers were unopened; and the asbestos types found in the
samples were not used commercially, thus refuting a claim of
ambient air contamination. The court denied the motion,
determining that Colgate’s objections went to weight, not
admissibility.
26
On the same day the court heard motion in limine No. 1,
Colgate filed motion in limine No. 3A targeting various aspects of
Dr. Longo’s opinion and including a request for exclusion of his
testing of “unauthenticated containers of Cashmere Bouquet.”
Therein, Colgate repeated its lack of reliability and
authentication objections to the 38 Cashmere Bouquet samples
discussed in motion in limine No. 1. Colgate also mentioned that
Dr. Longo had produced a report on testing of 20 additional
Cashmere Bouquet samples the day Colgate filed motion in
limine No. 1, and, in a footnote, stated, “Given the timing of
[p]laintiff’s disclosure of this testing, Colgate hereby incorporates
the same challenges to the authenticity of these [20] samples as
incorporated in Colgate’s Motion in Limine No. 1.” (Italics
removed.)
At the subsequent hearing on motion in limine No. 3A,
Colgate told the court that motion in limine No. 3A was “a really
focused motion,” and Colgate’s concern was with Dr. Longo’s
extrapolation opinion, not the results of the specific samples that
he tested. Colgate’s counsel explained: “I don’t have a concern
with Dr. Longo speaking about the testing that he personally did,
but where it becomes problematic is when he attempts to
extrapolate from his own handful—subset of testing that he’s
done to try to say whether or not what the plaintiff used was
contaminated and at what levels specifically. . . . [¶] And so,
again, I’ve got no problem with him coming in here and talking
about the samples he’s tested. It’s well within—well within his
realm.”
27
Analysis
Expert testimony regarding the features of an examined or
tested item may be excluded on the basis of a so-called “ ‘chain of
custody’ ” claim. (People v. Catlin (2001) 26 Cal.4th 81, 134.) The
crux of such a claim is that the expert testimony relies on tests of
a sample not adequately shown to reflect or represent the item in
question. “In a chain of custody claim, ‘ “[t]he burden on the
party offering the evidence is to show to the satisfaction of the
trial court that, taking all the circumstances into account
including the ease or difficulty with which the particular evidence
could have been altered, it is reasonably certain that there was
no alteration. [¶] The requirement of reasonable certainty is not
met when some vital link in the chain of possession is not
accounted for, because then it is as likely as not that the evidence
analyzed was not the evidence originally received. Left to such
speculation the court must exclude the evidence. [Citations.]
Conversely, when it is the barest speculation that there was
tampering, it is proper to admit the evidence and let what doubt
remains go to its weight.” [Citations.]’ ” (Id., at p. 134.)
Colgate maintains the trial court abused its discretion by
denying motion in limine No. 1 and allowing Dr. Longo to testify
that he found asbestos in 38 vintage bottles of Cashmere Bouquet
obtained from third-party sources. Assuming, without deciding,
that Colgate is correct and that the trial court abused its
discretion in denying motion in limine No. 1, for the reasons set
forth post, Colgate fails to establish reversible prejudice.
28
In addition to the 38 vintage talc samples, Dr. Longo tested
the set of 20 Cashmere Bouquet samples his laboratory obtained
from Colgate’s defense laboratory, to which defendants have not
preserved any evidentiary challenge. (See People v. Morris (1991)
53 Cal.3d 152, 190 [a motion in limine is sufficient to preserve
objection if it is directed to a particular, identifiable body of
evidence; states a specific legal ground for exclusion; and is made
at a time before or during trial when the trial court can
determine the evidentiary issue in its appropriate context],
disapproved on other grounds by People v. Stansbury (1995)
9 Cal.4th 824, 830, fn.1; Evid. Code, § 353.) Colgate’s first
motion, including the rationale for exclusion therein, was
directed to the 38 samples. Colgate relegated to a footnote its
objections to the second set of 20 samples, which was insufficient
to preserve the evidentiary objection. (See Evid. Code, § 353,
subd. (a).) And in any event, Colgate waived any such objection
to these 20 samples at the hearing on motion in limine No. 3A by
stating that it had no concern regarding Dr. Longo telling the
jury about the results for the testing that he actually performed.
Contesting waiver, Colgate points to a generic “foundation”
objection that it made at trial after Dr. Longo was asked whether
Cashmere Bouquet historically included asbestos, considering his
historical review of company documents, his review of the
scientific literature, and his testing of Cashmere Bouquet. But
this too was insufficient to preserve an objection specific to the 20
samples. “[W]here the objection is lack of proper foundation,
counsel must point out specifically in what respect the foundation
29
is deficient.” (People v. Moore (1970) 13 Cal.App.3d 424, 434,
fn. 8.) Colgate’s objection did not specifically inform the trial
court that it was raising an authenticity objection to the most
recent 20 samples Dr. Longo tested, and, up to that point, it had
not indicated that it was objecting to Dr. Longo’s reliance on
those 20 samples.
Dr. Longo detected asbestos in all twenty samples from
Colgate’s laboratory, and he relied on these results.
Furthermore, evidence of asbestos contamination in Cashmere
Bouquet was corroborated by certain historical documents upon
which Dr. Longo also relied. Accordingly, we cannot conclude,
without more, that it is reasonably probable the jury would have
reached a different result had Dr. Longo’s testimony regarding
the set of 38 samples been excluded. (See Soule v. General
Motors Corp. (1994) 8 Cal.4th 548, 574 (Soule).)
D. The Exposure Opinions
Defendants argue that Dr. Longo’s exposure opinion should
have been excluded, and Colgate makes a similar argument as to
Dr. Egilman’s exposure calculation. We address these arguments
in turn.
Dr. Longo
a. Additional Background
As noted above, Colgate filed motion in limine No. 3A to
prevent Dr. Longo from opining that Schmitz had substantial
exposure to asbestos from Cashmere Bouquet. The thrust of its
argument was that Dr. Longo could not opine that Schmitz had
substantial exposure to asbestos because he did not perform any
30
scientific, mathematical, or statistical analysis to support his
conclusion that she used contaminated product. Colgate asserted
that Dr. Longo did not test the talc Schmitz used, he allegedly
conceded there was no generally accepted basis for extrapolating
an asbestos concentration in a bulk sample to an airborne
concentration, and he did not perform any “actual statistical
analysis” to permit him to draw a conclusion about the
probability of the products Schmitz used containing asbestos
(hence, he was merely guessing).
At the hearing on the motion, which was postponed at
Colgate’s request and held right before Dr. Longo was set to
testify, Colgate represented that its motion was “targeted,” and
reiterated its claim that Dr. Longo had not done anything
“scientifically, whether it’s some sort of analysis or calculation,
whether it be mathematical or statistical or anything at all, that
allows him to make the jump from the small subset of samples
that he has tested to the—to the entire product line or even to the
products that Ms. Schmitz used. There’s simply nothing there . .
. . [¶] And so if we’re going to keep him to—if we are going to keep
him in his lane and have him talk about his samples that he has
looked at personally, no problem. But as soon as he makes that
jump to what Ms. Schmitz used and whether that’s appropriate, I
think it’s not, and I don’t think it’s supported.” J&J joined
Colgate’s argument.
Plaintiff responded that she assumed Colgate had provided
Dr. Longo’s exposure report to the court. She argued that Dr.
Longo relied on his own testing and the historical documents,
31
and, under Lyons v. Colgate-Palmolive Co. (2017) 16 Cal.App.5th
463 (Lyons), he could render an opinion without testing the
bottles Schmitz used. Colgate responded that nothing in Dr.
Longo’s background allowed him to make the statistical leap
about what Schmitz may have used, and “[h]e, himself, testified
at his deposition that the reason he gets from his subset of 58
samples to what Ms. Schmitz used was because he took the
number of positives, divided it by the total number of samples he
tested, and says, ‘Well, that’s the percentage. I’m going to be a
little bit conservative, because there’s some nondetects’—and he
tested some samples where he found nothing, by the way—and
then he says, ‘I’m going to take that percentage and apply it to
the universe of products.’ [¶] That’s—that’s not expertise, Your
Honor. I could do that for anything.” The court denied the
motion.
At trial, Dr. Longo opined that, based upon his review of
historical company documents, scientific literature, and his
laboratory’s testing, Cashmere Bouquet and JBP historically
included asbestos. The court overruled Colgate’s “foundation”
objection as Dr. Longo gave this opinion about Cashmere
Bouquet. Dr. Longo stated he had evaluated Schmitz’s exposure
to Cashmere Bouquet and JBP, and it was his opinion that she
was exposed to asbestos from the use of both. Later in his
testimony, Dr. Longo opined that Schmitz had significant
exposure to cosmetic talcum powder from J&J and Colgate, and,
using an IARC figure for ambient asbestos, “based on [his]
testing, based on historical documents, based on the percentages
32
that we find positive, it’s my opinion that more likely than not,
when she used any of these products . . . that she would have had
a significant exposure to airborne asbestos—and it’s interesting—
significantly over background, even though there is no
background of tremolite/anthophyllite in the natural
environment, unless there is a source.” The court overruled
J&J’s objection that Dr. Longo was not an expert in statistics as
he gave this last opinion. Shortly thereafter, over Colgate’s
“foundation” objection, Dr. Longo testified that Schmitz had
significant exposures above background to asbestos from
Cashmere Bouquet.
b. Analysis
Colgate argues that the judgment must be reversed for two
reasons. First, it contends that Dr. Longo had no basis to
extrapolate from his bulk testing of Cashmere Bouquet samples
to “any airborne asbestos exposure by Schmitz.” Second, citing
Sargon, Colgate argues there was too large an analytical gap
between Dr. Longo’s data sources and his conclusion that
Schmitz had significant exposure to asbestos from Cashmere
Bouquet. J&J argues that Dr. Longo failed to test the talc
Schmitz used and that his opinion regarding Schmitz’s exposure
to JBP suffers from an insurmountable analytical gap similar to
that of his opinion as to Cashmere Bouquet. As set forth post,
defendants fail to establish reversible error.
Colgate’s first argument lacks merit because Colgate failed
to establish that Dr. Longo had no basis to opine on airborne
exposure. Colgate mentioned airborne exposure in its motion in
33
limine in one sentence, citing to Dr. Longo’s deposition testimony
from another case wherein he conceded that no generally
accepted basis for extrapolation from bulk testing to an airborne
exposure level exists because it depends on what one does with
the material. In the submitted material, Dr. Longo also testified
that a study could be performed, and he cited one for Cashmere
Bouquet done by MVA/Dr. Gordon. Colgate did not submit Dr.
Longo’s exposure summary for Schmitz with its motion or discuss
Dr. Longo’s airborne exposure opinion in this case, which, looking
to his summary judgment declaration, appeared to include the
opinion that background air does not generally contain
measurable amounts of anthophyllite or tremolite fibers, so any
exposure to these fibers in Cashmere Bouquet would be
substantially above background. And Dr. Longo’s bulk testing
reports from this case cited the Gordon study and MVA
materials. Thus, based on the materials before it, the trial court
did not abuse its discretion in failing to exclude Dr. Longo’s
exposure opinion. Furthermore, when Dr. Longo first testified at
trial that Schmitz would have had significant, above-background
airborne exposure to asbestos from “any of these products,”
including Cashmere Bouquet, Colgate did not object.
Next, the trial court did not abuse its discretion in rejecting
Colgate’s argument that Dr. Longo failed to use accepted
scientific principles to reach his conclusion that the Cashmere
Bouquet products used by Schmitz contained asbestos. In
response to Colgate’s motion to exclude Dr. Longo’s opinion,
plaintiff pointed to Lyons, supra, 16 Cal.App.5th 463, and argued
34
that Dr. Longo had relied on his own testing and historical
documents, and he could render an opinion without testing the
bottles Schmitz used.
In Lyons, the appellate court reversed the trial court’s
grant of summary judgment in a case where plaintiff Lyons
developed mesothelioma after using Cashmere Bouquet from the
early 1950s to the early 1970s. (Lyons, supra, 16 Cal.App.5th at
p. 465.) Lyons presented a declaration from an expert
minerologist, Mr. Fitzgerald, reporting positive test results for
asbestos in raw talc taken from three talc mines used for
Cashmere Bouquet and in bulk testing of Cashmere Bouquet.
(Id. at pp. 465–467.) Colgate argued that Fitzgerald’s declaration
supported nothing more than a possibility of some asbestos in
some retail Cashmere Bouquet at some time, which left to
conjecture whether the talcum product Lyons used exposed her to
asbestos. (Id. at pp. 467–468.) Colgate further argued that
Fitzgerald had not tested the product Lyons used, and 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
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 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
35
unsupported possibility.” (Id. at p. 469.) “Rather, 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.)
In Strobel, supra, 70 Cal.App.5th 796, a different panel of
this Division similarly found there to be a triable issue of fact
regarding causation where the plaintiff alleged that his JBP use
from 1951 to 2014 caused mesothelioma. (Id. at pp. 800–801,
811.) Expert declarations reported asbestos in the Italian and
Vermont talc ore used for JBP, and Mr. Fitzgerald opined that
the geology of the Chinese talc mine also used for JBP was such
that it would contain asbestos. (Id. at pp. 807–808.) In support
of his conclusion that JBP contained asbestos, Fitzgerald relied
upon accepted source material in the field—published materials
from government agencies, academic articles, and published
reports of historical testing, including a 1972 study by Lewin and
a 1976 study by Rohl and Langer finding asbestos in JBP, and an
FDA report finding asbestos in JBP manufactured from Chinese
talc; Fitzgerald also relied on four of five of his own tests showing
that JBP before 1951 contained asbestos. (Id. at pp. 822–826.)
Strobel rejected J&J’s argument that there was too great an
evidentiary gap between the data and Fitzgerald’s opinion.
(Ibid.) The court found that Fitzgerald “formulated his opinion
based upon principles generally accepted in his area of expertise
and . . . applied those principles upon a proper evidentiary
foundation,” and “fairly dr[ew] the inference . . . that JBP of a
36
vintage dating from within the exposure period contained
asbestos.” (Id. at pp. 823, 815.)
Considering Lyons, Strobel, and the record before the trial
court, Colgate has not established that the court abused its
discretion in failing to exclude Dr. Longo’s opinion under Sargon.
Colgate argued that Dr. Longo could not go beyond his testing
because he did not utilize scientific principles to conclude that
Schmitz used contaminated product, but plaintiff pointed out
that Dr. Longo relied on his testing and historical documents
similar to the expert in Lyons. And, in the month prior to the
hearing on the motion in limine, Dr. Longo had listed some of the
materials on which he relied with his summary judgment
declaration, including the 1972 Lewin and 1976 Rohl and Langer
studies referenced in Strobel.13 Colgate argued that Dr. Longo’s
opinion encompassed the entire “universe” of Cashmere Bouquet
products, but the deposition testimony Colgate submitted
suggested that Dr. Longo had concluded that it was more likely
than not the Cashmere Bouquet products for the years he tested
contained asbestos. On this record, the court acted within its
discretion in rejecting Colgate’s request for wholesale exclusion
on the basis that Dr. Longo had not used any reliable principles
to formulate his opinion that Cashmere Bouquet used by Schmitz
contained asbestos.
13 Colgate used talc from Italy, North Carolina, and
Montana for Cashmere Bouquet. Dr. Longo had positive results
from Cashmere Bouquet samples from before 1968 made with
Italian talc, and from samples in the 1970s when Colgate was
using mixes of North Carolina and Montana talc.
37
Colgate now argues on appeal that data underlying Dr.
Longo’s opinion suffered from “serious problems,” causing too
great an analytical gap between the data and the opinion
proffered, but Colgate does not show that it raised any of these
specific arguments to the court below.14 (Evid. Code, § 353,
subd. (a) [requiring timely and specific objection].)
Furthermore, to the extent that Dr. Longo’s opinion at trial
stretched beyond the years represented by the samples he tested,
Colgate cannot show prejudice. Toward the end of his direct
testimony, the court allowed Dr. Longo to opine over Colgate’s
“foundation” objection that Schmitz had significant exposures
above background to asbestos from Cashmere Bouquet. But this
was only after Dr. Longo had testified without objection from
Colgate that “based on [his] testing, based on historical
documents, based on the percentages that we find positive, it’s
my opinion that more likely than not, when she used any of these
products [Cashmere Bouquet, JBP, and Avon’s products] . . . that
she would have had a significant exposure to airborne asbestos—
and it’s interesting—significantly over background, even though
there is no background of tremolite/anthophyllite in the natural
14Colgate stated in conclusory fashion in motion in limine
No. 3A that Dr. Longo “merely guess[ed]” that Schmitz was
exposed to asbestos, referencing purported deposition testimony
of Dr. Longo where he allegedly admitted that he assumed his
samples were representative, but even that reference was
unsupported, as the materials submitted with the motion do not
contain the alleged testimony.
38
environment, unless there is a source.”15 Putting aside the
generic nature of Colgate’s “foundation” objection (People v.
Moore, supra, 13 Cal.App.3d at p. 434, fn. 8), any failure to
exclude the testimony Colgate objected to was harmless in light
of the fact that Dr. Longo had already testified that Schmitz
would have had significant exposure to airborne asbestos over
background when she used any of the Cashmere Bouquet, Avon,
or JBP cosmetic talc products.
J&J suggests on appeal, as was argued in motion in limine
No. 3A, that Dr. Longo’s opinion on plaintiff’s exposure to
asbestos was inadmissible because he did not test the cosmetic
talc from bottles Schmitz actually used. But we are not aware of
any such burden. (See Lyons, supra, 16 Cal.App.5th at p. 468
[“[t]he absence of the packaging and testing of the very container
that plaintiff used is hardly sufficient reason to reject the
testimony identifying the product that she used, combined with
the expert testimony that all of that product contained
‘significant concentrations of airborne asbestos’ ”]; Strobel, supra,
70 Cal.App.5th at pp. 801, 827 [finding triable issue of fact on
causation without evidence of testing of talc containers plaintiff
actually used].)
Like Colgate, J&J also attempts on appeal to attack the
data set Dr. Longo relied on to render his opinion that Schmitz
used JBP contaminated by asbestos. But, as plaintiff points out,
15 J&J objected to Dr. Longo’s qualifications here, stating,
“He’s not an expert in statistics.” It does not pursue a
qualification objection on appeal.
39
J&J’s sole objection to Dr. Longo’s trial testimony was that he
was not an expert in statistics. J&J does not dispute this,
instead claiming that its joinder in motion in limine No. 3A was
sufficient to preserve its claims for appeal. But Colgate never
argued below that there was too large an analytical gap between
the JBP samples Dr. Longo tested and his resulting opinion with
respect to JBP. J&J has thus not preserved the claim on appeal.
(Evid. Code, § 353, subd. (a).)
Dr. Egilman
Colgate next argues that the court should have excluded
Dr. Egilman’s exposure opinion regarding how many asbestos
fibers Schmitz inhaled in her lifetime because he simply took the
percentage positive from Dr. Longo’s testing and assumed the
same percentage applied to all the cosmetic talc containers
Schmitz used. Even assuming Dr. Egilman should not have been
able to testify that Schmitz inhaled 42 to 61 billion asbestos
fibers in her lifetime, Colgate does not establish prejudice.
As presented, the thrust of Colgate’s prejudice argument is
that Egilman’s opinion was prejudicial because it provided
testimony about Schmitz’s substantial exposure to asbestos. But
Colgate makes the same argument for Dr. Longo’s exposure
testimony, and we have found no reversible error in the
admission of his testimony, including his testimony that it was
more likely than not that, each time Schmitz used defendants’
products, she was exposed to asbestos. Furthermore, plaintiff’s
medical experts opined that there is no known safe level of
exposure to asbestos. Drs. Abraham and Egilman testified about
40
cases where people developed mesothelioma after only one day of
asbestos exposure. Dr. Egilman testified that “the amount of
asbestos it takes to cause cancer is really, really low,” and he
rejected defense counsel’s suggestion that, if you kept exposure
levels below threshold limit values, you would not expect to see
cancer. Drs. Horn and Abraham further stated that
mesothelioma is dose-dependent, with every inhalation
increasing the risk of disease. Plaintiff argued the “no safe
exposure” theory, referring to all the doctors’ testimony, and the
jury’s verdict shows that it rejected the defense experts’ opinions
that there was no increased risk of mesothelioma at the low
threshold asbestos exposure levels they expressed in fibers per
cc/year.16 Given this evidence, Colgate does not show that it is
reasonably probable the jury would have returned a more
favorable result for Colgate in the absence of Dr. Egilman’s
opinion.
II. Causation Instructions
Colgate next contends that the trial court erred by
instructing the jury with negligence, product liability, and
concealment instructions that incorporated the asbestos-specific
16 Dr. Moolgavkar opined that exposure to amphibole
asbestos of 5 fibers per cc-year would increase the risk. Dr. Weill
opined there is no scientific evidence that exposure to background
levels of asbestos elevates the risk of disease, and stated that it
would take “several hundred fiber-years” of exposure to chrysotile
asbestos contaminated with tremolite or 35 to 75 fiber-years of
exposure to tremolite asbestos to increase the risk. Sahmel
stated there was no scientific evidence of increased risk of
mesothelioma at OSHA’s allowable lifetime asbestos exposure
limit of 1.1 fiber per cc-year.
41
standard of proof for causation set forth in Rutherford v. Owens-
Illinois, Inc. (1997) 16 Cal.4th 953 (Rutherford). As framed by
Colgate, the alleged error was allowing the use of Rutherford’s
“substantial factor in contributing to the risk” language17 to
describe the burden of proof for causation when Rutherford
applies only where the theory is that asbestos caused a plaintiff’s
cancer, not where the theory is that fibrous talc caused
mesothelioma.
A. Additional Background
After the parties submitted proposed jury instructions,
plaintiff proposed modifications to CACI Nos. 400, 406, 431, 1203,
1205, 1220, 1900 and 1901. J&J filed written objections to these
modifications, arguing that plaintiff had incorrectly changed the
CACI text requiring that the wrongful conduct be “a substantial
factor in causing [plaintiff]’s harm” to a “substantial factor in
contributing to Patricia Schmitz’s risk of developing
mesothelioma.”
At the hearing on the objections, J&J highlighted plaintiff’s
changes and defense counsel pointed out that the parties had
agreed on the normal CACI language. Colgate remarked that
CACI No. 435 sets forth this standard and provides, “A
17
substantial factor in causing harm is a factor that a reasonable
person would consider to have contributed to the harm. It does
not have to be the only cause of the harm. [¶] [Plaintiff] may
prove that exposure to asbestos from [name of defendant]’s
[product] . . . was a substantial factor causing [plaintiff’s] illness
by showing, through expert testimony, that there is a reasonable
medical probability that the exposure was a substantial factor
contributing to [plaintiff’s] risk of developing cancer.”
42
plaintiff had introduced a theory that fibrous talc, and not
asbestos, caused her harm, so Colgate suggested that the parties
give both CACI 430 and 435 and leave the remaining instructions
as they normally appear. J&J suggested the same.
Plaintiff responded that the modified versions provided the
proper causation standard for two reasons. First, she argued
that talc that is formed in an asbestiform habit is asbestos.
Second, she argued that the California Supreme Court held in
Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71(Bockrath), that “in complicated causation standard—complicated
causation cases involving cancers where, as in Rutherford, you
cannot isolate the ‘but for’ [cause] of the harm, that the
Rutherford causation standard is the appropriate standard.” The
court elected to give plaintiff’s modified jury instructions, stating,
“[The] CACI 435 causation standard is what we are looking at in
this case, irrespective of [defendants’] argument about whether or
not fibrous talc is asbestos or is not asbestos.”
B. Rutherford
In Rutherford, the court addressed a local court rule that
allowed plaintiffs in asbestos cases tried on a products liability
theory to request a jury instruction shifting the burden of proof to
defendants to prove their products were not a legal cause of a
plaintiff’s injuries, provided the plaintiff first established that the
defendant manufactured or sold defective asbestos-containing
products to which plaintiff was exposed, and that plaintiff’s
exposure to asbestos fibers generally was a legal cause of
plaintiff’s injury. (Rutherford, supra, 16 Cal.4th at pp. 957–958.)
43
In rejecting the need for a burden-shifting instruction that ran
counter to normal causation principles, Rutherford addressed and
refined both the plaintiff’s burden of proof on causation in
“asbestos-related cancer” cases, and the corresponding jury
instructions to be given in such cases. (Id. at pp. 974–983.)
The court first discussed the limits on the plaintiff’s burden
of proof, explaining “the medical problems and uncertainties
accompanying factual proof of causation” in an asbestos-cancer
case. (Rutherford, supra, 16 Cal.4th at p. 974.) “At the most
fundamental level, there is scientific uncertainty regarding the
biological mechanisms by which inhalation of certain microscopic
fibers of asbestos leads to lung cancer and mesothelioma,”
including whether a single fiber or multiple fibers cause the
cancer. (Id. at pp. 974–975.) And there exists an “irreducible
uncertainty” regarding “which particular fiber or fibers actually
caused the cancer to begin forming.” (Id. at p. 975.) The court
also observed that, given the long latency period of asbestos-
related cancers, uncertainty exists as to whether the plaintiff was
even exposed to the fibers from a particular defendant’s product.
(Ibid.) Further, “at a level of abstraction somewhere between the
historical question of exposure and the unknown biology of
carcinogenesis,” sits the question of whether the risk of cancer
created by a plaintiff’s exposure to a particular asbestos-
containing product was significant enough to be considered a
legal cause of the disease. (Ibid.)
Rutherford ultimately concluded that the conceded
impossibility of proving the scientifically unknown details of
44
carcinogenesis, or of tracing the unknowable path of a given
asbestos fiber, did not justify shifting the burden to defendants to
prove a lack of legal cause. (Rutherford, supra, 16 Cal.4th at
p. 976.) “Instead, we can bridge this gap in the humanly
knowable by holding that plaintiffs may prove causation in
asbestos-related cancer cases by demonstrating that the
plaintiff’s exposure to defendant’s asbestos-containing product in
reasonable medical probability was a substantial factor in
contributing to the aggregate dose of asbestos the plaintiff or
decedent inhaled or ingested, and hence to the risk of developing
asbestos-related cancer, without the need to demonstrate that
fibers from the defendant’s particular product were the ones, or
among the ones, that actually produced the malignant growth.”
(Id. at pp. 976–977, fn. omitted.)
The court then addressed jury instructions, observing that
jurors given the standard concurrent causation jury instruction
“might well conclude that the plaintiff needed to prove that fibers
from the defendant’s product were a substantial factor actually
contributing to the development of the plaintiff’s or decedent’s
cancer,” and, “[i]n many cases, such a burden will be medically
impossible to sustain, even with the greatest possible effort by
the plaintiff, because of the irreducible uncertainty regarding the
cellular formation of an asbestos-related cancer.” (Rutherford,
supra, 16 Cal.4th at p. 977.) “We therefore hold that, in the trial
of an asbestos-related cancer case, although no instruction
‘shifting the burden of proof as to causation’ to defendant is
warranted, the jury should be told that the plaintiff’s or
45
decedent’s exposure to a particular product was a substantial
factor in causing or bringing about the disease if in reasonable
medical probability it was a substantial factor contributing to
plaintiff’s or decedent’s risk of developing cancer.” (Ibid.)
“In conclusion, our general holding is as follows. In the
context of a cause of action for asbestos-related latent injuries,
the 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.
In an asbestos-related cancer case, the plaintiff need not prove
that fibers from the defendant’s product were the ones, or among
the ones, that actually began the process of malignant cellular
growth. Instead, the 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. The jury
should be so instructed. The standard instructions on substantial
factor and concurrent causation (BAJI Nos. 3.76 and 3.77) remain
correct in this context and should also be given.” (Rutherford,
supra, 16 Cal.4th at pp. 982–983, fns. omitted.)
C. Analysis
We start with two observations about our high court’s
precedent. First, Rutherford adopted its refined standard of proof
for legal causation only for cases involving asbestos-related
46
cancer. (Rutherford, supra, 16 Cal.4th at p. 983, & fn. 13
[expressly declining to determine whether the “substantial factor
contributing to the . . . risk” standard applied to asbestosis cases,
as opposed to asbestos-related cancer cases].) Next, while
plaintiff contends that Bockrath, supra, 21 Cal.4th 71, which
addressed causation pleading requirements in a non-asbestos
toxic tort case, held that Rutherford’s “substantial factor
contributing to the risk” standard is the governing standard of
proof for causation in all toxic tort cases, we do not read Bockrath
so expansively. Rather, Bockrath adopted the rule that, “[i]n
cases like the one before us, presenting complicated and possibly
esoteric medical causation issues, the standard of proof ordinarily
required is ‘ “a reasonable medical probability based upon
competent expert testimony that the defendant’s conduct
contributed to [the] plaintiff's injury.” ’ ” (Id. at p. 79 [citing to
different pages of Rutherford for the applicable “ordinary”
standard of proof and the standard of proof for asbestos-related
cancer claims].)18
Despite the above observations, Colgate’s claim of
instructional error fails. Rutherford endorsed the refined
standard of proof for causation announced therein because of the
18 Some courts have commented, without deciding, that
Rutherford’s refined standard for proving causation “would
appear appropriate for toxic torts beyond asbestos.” (Whiteley v.
Philip Morris Inc. (2004) 117 Cal.App.4th 635, 700; see also
Major v. R.J. Reynolds Tobacco Co. (2017) 14 Cal.App.5th 1179,
1197 [citing Bockrath and noting that “subsequent authority has
extended Rutherford to cancer caused by long-term exposure to
multiple different toxins.”].)
47
state of the science and the impossibility of proving whether a
particular fiber or fibers from defendant’s product caused the
cancer. (Rutherford, supra, 16 Cal.4th at p. 976 [reviewing the
impossibility of proving “the scientifically unknown details of
carcinogenesis, or [of tracing] the unknowable path of a given
asbestos fiber”].) The endorsed standard “bridge[d] this gap in
the humanly knowable,” (ibid.), and on the record before us, we
see no reason why Rutherford’s rationale for applying a refined
standard of proof for causation should not apply to a theory based
on fibrous talc.
Dr. Egilman testified that fibrous talc is carcinogenic
because its chemical structure is identical or very close to
anthophyllite asbestos, and he noted that asbestos fibers can
become talc fibers over the course of millions of years. He
testified that, when you have fibers of asbestiform talc with the
same shape and substantially the same chemical structure as
anthophyllite asbestos, the surface properties of the fibers at
issue are identical, and the human body cannot tell the difference
between the fibers of the asbestos minerals and the talc. Both
minerals are indestructible such that the human body’s
macrophages cannot clear them from the lung. Dr. Egilman
explained that the surface properties are what interact with DNA
to make the mineral particles carcinogenic, and he testified that
both asbestos fibers and fibrous talc cause cancer in the same
way. At least in this case, it appears from the testimony that the
same challenges inherent in proving causation in asbestos-
related cancer cases apply similarly to plaintiff’s theory of fibrous
48
talc-related mesothelioma—i.e., the “irreducible uncertainty”
regarding “which particular fiber or fibers actually caused the
cancer to begin forming” and of tracing the unknowable path of a
given fiber. (Rutherford, supra, 16 Cal.4th at p. 975.) As such,
we conclude that Rutherford’s rationale applies and was properly
extended in this case as a refined standard of proof for legal
causation.19
III. Motion for a Mistrial
J&J contends the trial court erred in refusing to grant its
motion for a mistrial after plaintiff played for the jury deposition
excerpts containing references to talc being linked to ovarian
cancer. We conclude that the trial court did not abuse its
discretion in denying the motion. (See People v. Williams (1997)
16 Cal.4th 153, 210 [denial of mistrial motion reviewed for abuse
of discretion].)
A. Additional Background
J&J moved in limine to exclude any reference to talc and
ovarian cancer. Plaintiff opposed, arguing that she was entitled
to establish J&J’s notice of the hazards of talc use, and she
referenced a J&J document that discussed finding asbestos and
particles consistent with talc in ovarian tissue. The trial court
denied the motion, with a caveat: “I think that the right thing to
Colgate’s argument is that the trial court’s modification
19
of the causation language in CACI Nos. 400, 406, 1202, 1203,
1205, 1900, and 1901 was erroneous solely because a Rutherford
standard of proof does not apply to fibrous talc. It does not
contend that, even if Rutherford’s “substantial factor in
contributing to the risk” standard of proof applies to fibrous talc,
the modified instructions were prejudicially erroneous.
49
do on this motion is to deny it with an exception to the denial,
so—because the demonstration is on the part of the plaintiff to
have notice attributed to the defendant as of the date with regard
to health consequences and, presumably, subsequent testimony
that there was no change in the product following that notice.
Nobody said that, but it doesn’t make any sense otherwise. [¶]
But the reference to the specific disease of ovarian cancer is
unnecessary. It’s prejudicial. So it’s denied, except that ovarian
cancer is not something that’s going to be brought up as being a
consequence. You can just call it a health issue or a health
problem. But it’s going to be granted only to that extent, and the
rest denied.”
When the video of the deposition of J&J corporate
representative Dr. John Hopkins was played, Dr. Hopkins was
questioned about a 1997 letter criticizing the Cosmetic Toiletry
and Fragrance Association (CTFA). The letter’s author critiqued
three CTFA response statements, and, in doing so, the author
referenced talc particles having been found in ovarian tissue and
studies showing “a statistically significant association between
hygienic talc use and ovarian cancer.” J&J did not object or ask
to stop the video. Afterwards, outside the jury’s presence, J&J’s
counsel inquired of the court whether an objection to references
to ovarian cancer had been overruled. The parties had filed page-
line designations and objections for video deposition testimony to
be played to the jury, and the court explained that it overruled
the objections to Dr. Hopkins’ deposition because no one
specifically objected that it referenced ovarian cancer, and the
50
court did not notice the reference. Regarding the reference
played to the jury, the court stated, “But it’s pretty de minim[i]s.”
J&J’s counsel asked that, going forward, there be no further
references, and the court agreed.
Later that day, during the video of Mr. Rosolowsky’s
deposition, he was asked, “Did Johnson & Johnson, when you
were in market research, ever do focus groups to understand
whether the consumer had concerns about cancer risk after using
Johnson & Johnson talcum powder?” He said, “No, sir, not that I
can recall.” Then, the text of the next question appeared, asking
whether J&J had done any research about whether consumers
had concerns about ovarian cancer, and it purportedly froze on
screen. Although the word “ovarian” was deleted in the audio
played, the text appeared on the screen. Rosolowsky responded,
“I can’t recall that sir. I don’t believe so.” After the video
finished playing, outside the presence of the jury, J&J’s counsel
told the court, “We had—we had a little issue on the video with
‘ovarian cancer,’ and I just—I think we should just take 30
seconds tomorrow to talk about that.” The court inquired what
counsel would like the court to do, and J&J’s counsel responded,
“That’s what I’d like to think about, Your Honor. Maybe we’d
want a quick instruction. I don’t know. I’d like to think about it,
if we could, and discuss it for a second tomorrow.”
J&J filed a motion for a mistrial the following week, with
one of its arguments being that a mistrial was required because
of the ovarian cancer references. At the argument on the motion,
J&J requested curative instructions for various other issues
51
raised therein, but not for the ovarian cancer issue. The court
denied the motion.
B. Analysis
A trial court has discretion to declare a mistrial “when ‘an
error too serious to be corrected has occurred.’ ” (Velasquez v.
Centrome, Inc. (2015) 233 Cal.App.4th 1191, 1214.) However, a
curative instruction to disregard improper testimony is generally
sufficient to cure prejudice. (People v. Navarrete (2010) 181
Cal.App.4th 828, 834, 836.) “The trial court, ‘present on the
scene, is obviously the best judge of whether any error was so
prejudicial to one of the parties as to warrant scrapping the
proceedings up to that point.’ [Citation.] A trial court should
grant a mistrial only when a party’s chances of receiving a fair
trial have been irreparably damaged.” (Velasquez, at p. 1214.)
J&J does not persuade us that this is an exceptional case
where the trial court abused its discretion in denying the motion
for a mistrial. J&J did not move to correct the allegedly
egregious errors until its motion for a mistrial filed a week after
the errors occurred. The trial court concluded that the references
to ovarian cancer in Dr. Hopkins’ transcript were “de minim[i]s,”
and the record supports that conclusion as these were brief
references in the span of a multi-week trial. Furthermore, while
the question referencing ovarian cancer apparently froze on
screen, the question was only whether J&J had done any
research into whether consumers had concerns about ovarian
cancer. We thus reject J&J’s contention that the trial court
abused its discretion in deciding that the brief references to
52
ovarian cancer were not so prejudicial as to irreparably damage
J&J’s right to a fair trial.
IV. The Adverse Inference Instruction
The trial court determined there was sufficient evidence to
support an adverse inference instruction in this case, and the
jury was instructed: “You may consider whether one party
intentionally concealed or destroyed evidence. If you decide that
party did so, you may decide that the evidence would have been
unfavorable to that party.” J&J argues the evidence was
insufficient to support this instruction, and that the error
requires reversal of the judgment. As set forth post, we disagree.
“ ‘Spoliation’ is ‘ “the destruction or significant alteration of
evidence, or the failure to preserve property for another’s use as
evidence in pending or reasonably foreseeable litigation.” ’ ”
(Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666,
681 [citing federal case law].) One remedy for spoliation is an
adverse evidentiary inference—allowing the jury to infer that
evidence which one party has willfully destroyed or rendered
unavailable was unfavorable to that party. (Evid. Code, § 413;
Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th
1, 11; CACI No. 204.) Such an instruction may be given only if
there is evidence of willful suppression, which one appellate court
has described as “evidence that a party destroyed evidence with
the intention of preventing its use in litigation.” (New Albertsons,
Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434.)
Even assuming the trial court erred in giving the adverse
inference instruction, J&J has not shown that it is reasonably
53
probable the instructional error affected the jury’s verdict. (See
Soule, supra, 8 Cal.4th at pp. 574, 580.) In assessing prejudice,
the reviewing court should consider the nature of an instructional
error, “ ‘including its natural and probable effect on a party’s
ability to place his full case before the jury,’ ” as well as the
likelihood of actual prejudice, considering “ ‘(1) the state of the
evidence, (2) the effect of other instructions, (3) the effect of
counsel’s arguments, and (4) any indications by the jury itself
that it was misled.’ ” (Rutherford, supra, 16 Cal.4th at p. 983.)
Here, J&J argued its full case to the jury, and the
instruction did not inform the jury that defendants had
intentionally concealed or destroyed evidence. Rather, it merely
permitted the jury to consider whether defendants had done so
and, if it so found, that it may (but did not have to) decide that
the evidence would have been unfavorable to defendants.
Plaintiff did refer to the suppression instruction, arguing in
closing that J&J destroyed a document with a code that would
show which company’s 1976 cosmetic talc products were linked to
positive results in CTFA blind asbestos testing, and plaintiff
briefly alluded to J&J’s destruction of documents before it sold
the Vermont talc mine in 1989. Nonetheless, there was abundant
evidence that Vermont talc and JBP, during the time J&J used
Vermont talc, contained asbestos. Apart from Dr. Longo’s and
Mr. Poye’s testing, there was testimony that in 1991, Alice
Blount, Ph.D., documented trace levels of tremolite asbestos in
samples of JBP sourced from the Vermont mines in a peer-
reviewed and published paper. There was evidence of a number
54
of historical reports of asbestos in Vermont talc and the JBP
derived therefrom. Dr. Sanchez testified there were asbestiform
amphiboles in the Vermont mines, although he said they were
outside the talc ore body. And Dr. Egilman testified that JBP
historically contained asbestos, studies found asbestos in the
Vermont talc mine, and six or seven different laboratories found
asbestos in JBP in the early 1970s. Plaintiff spent a large
amount of time highlighting this evidence in her closing
argument as opposed to the brief amount of time she spent on the
adverse inference instruction. On this record, J&J has not shown
that without the challenged instruction, it is reasonably probable
it would have obtained a more favorable result.
V. The Fraudulent Concealment Instruction
J&J raises a final instructional error claim—that it was
entitled to correct, nonargumentative jury instructions upon its
request, and the court erred in failing to instruct the jury that it
had to find the requisite transactional relationship to succeed on
a claim for fraudulent concealment. Plaintiff argues the
instruction given was appropriate, and both parties cite Bigler-
Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276 (Bigler-Engler), to
support their positions. We conclude that, even assuming some
error in failing to instruct as J&J requested, it is not reasonably
probable that J&J would have received a more favorable result
had the jury been instructed under Bigler-Engler.
A. Additional Background
When discussing the jury instruction and special verdict
form for concealment, J&J took the position that the court should
55
add a preamble to the beginning of CACI No. 1901, as follows:
“That plaintiff, Patricia Schmitz and the defendants, were
engaged in a transactional relationship based on direct dealings.”
The court requested that the parties provide a complete proposed
written instruction for its consideration, commenting that what
was before it was an outline. The parties do not cite to a
proposed instruction in the record, but the reporter’s transcript
shows that plaintiff sent a proposed instruction for CACI No.
1901 to defendants, and J&J provided a redline. The court
elected to give plaintiff’s proposed instruction, instructing the
jury that, to find concealment, plaintiff had to prove that
“defendant directly advertised its products to consumers such as
Patricia Schmitz or Patricia Schmitz purchased defendant’s
product.” In closing, J&J’s counsel argued that Schmitz never
saw advertisements or brochures for JBP, and she never
purchased JBP.
B. Governing Law and Standard of Review
The elements of a cause of action for ‘‘ ‘concealment are:
“ ‘(1) the defendant must have concealed or suppressed a material
fact; (2) the defendant must have been under a duty to disclose
the fact to the plaintiff; (3) the defendant must have intentionally
concealed or suppressed the fact with the intent to defraud the
plaintiff; (4) the plaintiff must have been unaware of the fact and
would not have acted as he did if he had known of the concealed
or suppressed fact; and (5) as a result of the concealment or
suppression of the fact, the plaintiff must have sustained
56
damage.’ ” ’ ” (Bigler-Engler, supra, 7 Cal.App.5th at pp. 310–
311.)
“ ‘There are “four circumstances in which nondisclosure or
concealment may constitute actionable fraud: (1) when the
defendant is in a fiduciary relationship with the plaintiff; (2)
when the defendant had exclusive knowledge of material facts
not known to the plaintiff; (3) when the defendant actively
conceals a material fact from the plaintiff; and (4) when the
defendant makes partial representations but also suppresses
some material facts.” ’ ” (Bigler-Engler, supra, 7 Cal.App.5th at
p. 311.) Where a fiduciary relationship does not exist between
the parties, only the latter three circumstances may apply, and
those three circumstances presuppose the existence of some other
relationship between the plaintiff and defendant in which a duty
to disclose can arise. (Id. at p. 311.) This relationship has been
called a “transaction” and may include “ ‘ “seller and buyer,
employer and prospective employee, doctor and patient, or parties
entering into any kind of contractual arrangement.’ ” ’ ” (Ibid.)
In Bigler-Engler, patient Whitney Engler sued her doctor,
the doctor’s medical group, and a medical device manufacturer,
among others, for numerous torts, including fraudulent
concealment causing injury from minor Engler’s use of a cold
therapy device available by prescription only. (Bigler-Engler,
supra, 7 Cal.App.5th at pp. 285–286.) Engler was injured in high
school and obtained the device from her doctor’s medical group
for use after surgery. (Id. at p. 286.) The court reversed the
jury’s verdict on fraudulent concealment against the
57
manufacturer “because there was no evidence of a relationship
between Engler (or her parents) and [the manufacturer]
sufficient to give rise to a duty to disclose.” (Id. at p. 314.) The
court noted that the manufacturer did not transact with Engler
or her parents, the manufacturer was not involved “in any way”
with Engler or her parents, and the evidence did not show that
the manufacturer “directly advertised its products to consumers
such as Engler or that it derived any monetary benefit directly
from Engler’s individual rental of the Polar Care device.” (Ibid.)
Instead, the medical group obtained the device from the
manufacturer several years before Engler’s surgery and
maintained it for rental to its patients. (Ibid.)
“A party is entitled upon request to correct,
nonargumentative instructions on every theory of the case
advanced by him which is supported by substantial evidence.”
(Soule, supra, 8 Cal.4th at p. 572.) We review de novo whether a
jury instruction correctly states the law. (Strouse v. Webcor
Construction, L.P. (2019) 34 Cal.App.5th 703, 713.) “[T]here is no
rule of automatic reversal or ‘inherent’ prejudice applicable to
any category of civil instructional error, whether of commission or
omission. A judgment may not be reversed for instructional error
in a civil case ‘unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the
error complained of has resulted in a miscarriage of justice.’
[Citation.] . . . [¶] Instructional error in a civil case is prejudicial
‘where it seems probable’ that the error ‘prejudicially affected the
verdict.’ ” (Soule, supra, 8 Cal.4th at p. 580; see also People v.
58
Watson (1956) 46 Cal.2d 818, 836.) Insofar as relevant, courts
should consider (1) the degree of conflict in the evidence on the
critical issues; (2) whether the winning side’s argument to the
jury may have contributed to the instruction’s misleading effect;
(3) whether the jury requested rereading of the erroneous
instruction or related evidence; (4) the closeness of the jury’s
verdict; and (5) the effect of other instructions in remedying the
error. (See Soule, at pp. 570–571, 580–581.)
C. Analysis
Even assuming it was error not to tell the jury that they
had to find a transaction arising from direct dealings between
plaintiff and J&J, J&J has not established prejudice. J&J
concludes in its opening brief, with no citations to the record, that
the jury’s result would have been different without the alleged
instructional error. Bigler-Engler, however, discussed the
question of whether there was a sufficient transaction or
relationship between the defendant and the minor Engler or her
parents, with the court noting that there was no evidence of a
transaction or relationship between Engler or her parents and
the defendant, nor was there evidence that the manufacturer
directly advertised its products to consumers such as Engler or
derived any monetary benefit directly from Engler’s rental of the
device at issue. (Bigler-Engler, supra, 7 Cal.App.5th at p. 314.)
A proper instruction under Bigler-Engler thus would have
instructed the jury here to consider whether similar evidence of
transactions, advertising, or J&J’s direct monetary benefit
supported the transactional requirement. (Id. at p. 311.)
59
In contrast to Bigler-Engler, the undisputed evidence in
this case was that Schmitz lived with her parents growing up,
her mom used and kept JBP in the house, and Schmitz used JBP
on her siblings as a kid and then on herself from age 11 to about
age 13. There was also evidence showing that J&J was involved
in retail sales of JBP to consumers and profited therefrom.
On this record, J&J cannot show it is reasonably probable
the jury would have found for J&J had it been instructed under
Bigler-Engler that it had to find a transaction between J&J and
Schmitz or her parents. For the same reasons, J&J’s conclusory
suggestion that the court should have granted its requests for
nonsuit and directed verdict fails.
VI. Sufficiency of the Evidence of Concealment
Colgate challenges the trial court’s denial of its motion for
judgment notwithstanding the verdict on concealment,
contending that the evidence is insufficient to show that it knew
Cashmere Bouquet contained asbestos. (Bigler-Engler, supra,
7 Cal.App.5th at p. 311 [reciting intentional concealment as an
element of fraudulent concealment]; Goodman v. Kennedy (1976)
18 Cal.3d 335, 348 [discussing deficient pleading failing to allege
defendant’s knowledge of existence and materiality of omitted
matter].)
Our standard of review is well established. “A motion for
judgment notwithstanding the verdict may be granted only if it
appears from the evidence, viewed in the light most favorable to
the party securing the verdict, that there is no substantial
evidence in support.” (Sweatman v. Department of Veterans
60
Affairs (2001) 25 Cal.4th 62, 68.) “As in the trial court, the
standard of review is whether any substantial evidence—
contradicted or uncontradicted—supports the jury’s conclusion.”
(Ibid.)
Here, substantial evidence supports the jury’s verdict.
Colgate’s policy was that “any indication of the presence of
asbestos . . . is unacceptable.” Colgate’s XRD testing detected
tremolite in Italian and North Carolina talc, and tremolite and
anthophyllite in Montana talc in 1976. In 1974, McCrone found
chrysotile asbestos in North Carolina Regal talc and in Cashmere
Bouquet. Dr. Longo confirmed that, with TEM, the 1974 pictures
from McCrone showed chrysotile asbestos, and Dr. Sanchez did
the same. While Colgate points to a memorandum from Dr.
Simko, the head of the analytical group assisting research &
development at Colgate at the time, wherein he stated that “it is
believed” that the contamination was due to laboratory
contamination, the jury was not required to believe that
explanation or that Dr. Simko was being truthful. Another 1974
McCrone test of Cashmere Bouquet reported one fiber of
tremolite. McCrone stated that it “may well just be stray
contamination,” but McCrone did not report that it was
conclusively stray contamination, and the jury was not required
to so conclude.
In 1976, the Mt. Sinai School of Medicine published a study
finding that Cashmere Bouquet contained asbestos after testing
the product sample with an electron microscope. Colgate knew of
Mt. Sinai’s findings around the time they came out. Colgate used
61
XRD to test the same sample as Mt. Sinai and identified
anthophyllite and possible tremolite therein. The sample was
sent to McCrone, and Colgate’s corporate representative testified
that it came back with pictures, but she could not recall what the
pictures depicted.
Also in 1976, records from Cyprus, a potential new talc
supplier for Colgate at the time, stated that Colgate “found some
tremolite in [its] other talc source and this has really gotten them
up in arms.” A similar memorandum documented a lunch
between Cyprus and Colgate employees, including Dr. Simko,
and stated that Colgate was having “quite a few problems with
their present [talc] source with respect to asbestos.”
In 1984, Colgate sent samples of “finished product” to
McCrone for testing, coded 0613BK, 1813AX and 2713EX with a
formula of 1 percent magnesium carbonate, 1 percent zinc
stearate, and perfume as additives. McCrone detected chrysolite
asbestos in these samples. Colgate’s corporate representative
testified that the samples “could be” Cashmere Bouquet, but then
said she remembered Dr. Simko saying they were actually
experimental samples for a developing product, although she
could not name the experiment. But the formula for these
samples matched that for Cashmere Bouquet in 1985 and 1986,
and entries in the laboratory testing notebook of Colgate
employee Pasquale Briscese identifying Cashmere Bouquet
contain similar naming codes, such as 4515EX.
In light of the above, the trial court did not err in failing to
grant Colgate’s motion for judgment notwithstanding the verdict.
62
VII. Entry of Judgment Nunc Pro Tunc
Relying on Code of Civil Procedure section 377.34,
subdivision (a),20 defendants challenged the award of damages for
pain and suffering, contending the court improperly entered
judgment nunc pro tunc to a time prior to Schmitz’s death.
Plaintiff asserts that the enactment Code of Civil Procedure
section 377.34, subdivision (b) has mooted this argument, and we
agree.
Effective January 1, 2022, Code of Civil Procedure section
377.34, subdivision (b) states, “Notwithstanding subdivision (a),
in an action or proceeding by a decedent’s personal representative
or successor in interest on the decedent’s cause of action, the
damages recoverable may include damages for pain, suffering, or
disfigurement if the action or proceeding was granted a
preference pursuant to Section 36 before January 1, 2022, or was
filed on or after January 1, 2022, and before January 1, 2026.”
Given the statute’s specific language and the grant of preference
in this case before January 1, 2022, the damage awards for pain
and suffering were not improper.21 (Myers v. Philip Morris
20 This subdivision provides, “In an action or proceeding by
a decedent’s personal representative or successor in interest on
the decedent’s cause of action, the damages recoverable are
limited to the loss or damage that the decedent sustained or
incurred before death, including any penalties or punitive or
exemplary damages that the decedent would have been entitled
to recover had the decedent lived, and do not include damages for
pain, suffering, or disfigurement.” (Code Civ. Proc., § 377.34,
subd. (a).)
21 In its opening brief, Colgate discussed future economic
loss. In its reply brief, Colgate states that, although the court
erred by entering judgment nunc pro tunc, “[T]his reply brief will
63
Companies, Inc. (2002) 28 Cal.4th 828, 844 [a statute may be
applied retroactively only if it contains express language of
retroactivity].)
DISPOSITION
The judgment is affirmed.
BROWN, J.
WE CONCUR:
STREETER, ACTING P. J.
GOLDMAN, J.
not further address that argument in light of the enactment of
subdivision (b) of section 377.34 of the Code of Civil Procedure,
which occurred after the filing of Colgate’s Opening Brief.” Colgate
thus appears to have abandoned its argument regarding future
economic losses.
64
STREETER, Acting P. J., Concurring.
I join the opinion in full, but offer some separate views on
one aspect of the evidentiary challenges to the expert testimony.
I agree with the conclusion that there was no error under
Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, in the admission of Dr. Egilman’s
testimony that fibrous talc causes asbestos. It is not the logic of
this opinion that was potentially problematic, but instead its
“newness” as an asbestos causation theory and lack of any
showing that it is empirically testable. I write briefly to say that,
had there been an objection under People v. Kelly (1976)
17 Cal.3d 24—there was not—that was the appropriate way to
challenge the admissibility of Dr. Egilman’s fibrous talc opinion,
not a Sargon objection.
When asked about this at oral argument, counsel for
Colgate said that Kelly applies to scientific methodologies and
techniques. It does, yes, but the Supreme Court’s recent
formulation of the threshold criteria for applying Kelly focuses on
whether the challenged expert has used a “ ‘ “technique, process,
or theory” ’ ” that may be considered new to science and law.
(People v. Peterson (2020) 10 Cal.5th 409, 444, italics added
[canine scent detection opinion not subject to Kelly]; People v.
Jackson (2016) 1 Cal.5th 269, 316 [same]; see People v. Cowan
(2010) 50 Cal.4th 401, 470 [ballistics testimony].) Recent Court
of Appeal formulations of the eligibility criteria for applying Kelly
seem to be phrased with similar breadth. (See, e.g., People v.
Davis (2022) 75 Cal.App.5th 694, 711 [“The Kelly test applies
1
only to expert testimony ‘ “ ‘based, in whole or in part, on a
technique, process, or theory which is new to science and, even
more so, the law.’ ” ’ ”].)
For context, the evolution in this area of law over the last
few decades is useful to recall. Of course, “gatekeeping”
screening for expert testimony has been a highly contested issue
since the adoption of a heightened federal standard for expert
testimony under Federal Rules of Evidence, rule 702 in Daubert
v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579. Before
that, our Kelly standard in California limited such gatekeeping to
scientific evidence, and our Supreme Court had not embraced the
Daubert idea that there ought to be strict “gatekeeping” of the
foundation for expert opinion, at least not in a mode that was any
more rigorous than the rules of evidence require for opinion
testimony in general.
In People v. Leahy (1994) 8 Cal.4th 587, a landmark post-
Daubert opinion cited in our opinion, the California Supreme
Court adhered to Kelly and declined to merge Kelly into a more
generalized Daubert-like screening test. Both before and after
Leahy, it was often stated in Kelly cases that its screening rule
does not apply to medical causation opinions outside the context
of new scientific techniques, processes or procedures, arguably a
narrower formulation than we see later in cases like Peterson and
Jackson. Roberti v. Andy’s Termite & Pest Control, Inc. (2003)
113 Cal.App.4th 893, another case cited in our opinion, is among
the most cited cases for that idea.
2
But then came Sargon, which changed the landscape by
adopting a Daubert-like gatekeeping rule for expert testimony in
general. After Sargon, we now have two regimes of admissibility
rules for expert testimony on scientific topics in California, one
under Sargon and one under Kelly. No case has ever explored the
interplay between these two regimes. Sargon expressly says it is
focused on foundational logic, not scientific validity. And notably,
the post-Sargon Kelly cases utilizing the broader formulation
(i.e., Peterson and Jackson) emphasize that the Kelly test is not
limited to methodological “techniques” or “processes,” which
suggests that there may be some types of causation opinions—
i.e., scientific opinions based on untested hypotheses—that are
subject to Kelly. If that is the case, it seems consistent with the
Roberti rule, since Roberti explicitly lays down a caveat for
causation opinions that are based on new scientific techniques,
processes or procedures.
Having laid out in broad strokes the evolution of the law in
this area, I wish to emphasize that I am not suggesting that
Dr. Egilman’s theory of fibrous talc asbestos causation was
necessarily vulnerable to challenge under Kelly, and I am
certainly not labelling it “junk science.” Which is why I agree
that we “express no view on whether such an argument would
have been successful.” (Lead opn., ante, at p. 21, fn. 11.) We do
not have a sufficient record to evaluate the question raised. But I
do think we are dealing with an important legal issue here, one
that this case illustrates quite well because the fibrous talc
theory can easily be characterized as “new” for Kelly purposes.
3
The bottom line, though, is that because the admissibility of
Dr. Egilman’s fibrous talc opinion was not subject to a Kelly
objection, we cannot tell on this record.
In 2016, the President’s Council of Advisors on Science and
Technology (PCAST) issued a ground-breaking report to the
President of the United States on the use of forensic science in
the courtroom. (PCAST, Forensic Science in Criminal Courts:
Ensuring Scientific Validity of Feature-Comparison Methods
(September 2016)22 (PCAST Report).) While the PCAST Report
focused on the use of forensic evidence in criminal cases, I believe
it lays out some important considerations for the assessment of
scientific validity of science-based expert opinion in civil cases as
well, and that these considerations ought to be recognized on the
Kelly side of expert opinion screening in California.
The debate about whether fibrous talc may be considered to
have the same pathogenic qualities as asbestos fibers or instead
should be placed in the category of benign cleavage fragments, at
bottom, implicates one of the most important aspects of assessing
what the PCAST Report called “foundational validity”—not just
whether the opinion has been subjected to peer review and
publication in the scientific community, but whether it is a
“scientific theory” that is testable by “empirical demonstration of
accuracy.” (PCAST Report, at p. 46; id. at p. 60 [referring to
National Academy of Sciences’ definition of a “scientific theory”
22
(as of Dec. 23, 2022).
4
as a “ ‘comprehensive explanation of some aspect of nature that is
supported by a vast body of evidence’ ”].)
Among the most important criteria for testable empirical
accuracy is whether “error rates” have been taken into account,
so that conclusions based on mere coincidence and association
may be distinguished from reliable conclusions suggesting actual
causality. (PCAST Report, at p. 62.) I have no idea how
Dr. Egilman’s fibrous talc opinion would stand up to scrutiny
against such an assessment, but I suspect it may have fallen
short, particularly given its apparent “newness” in the field of
asbestos causation. The proper vehicle for mounting such a
challenge, however, was a Kelly objection and a request for an
Evidence Code section 402 hearing to assess the scientific
foundation for the opinion, not a Sargon objection with back-and-
forth arguments from lawyers on an undeveloped record about
the “logic” of the opinion.
STREETER, Acting P. J.
Bader v. Johnson & Johnson et al. (A158868)
5
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Frank Roesch
Counsel: Orrick, Herrington & Sutcliffe, Naomi J.
Scotten, Robert M. Loeb, Upnit K. Bhatti,
Jeffrey T. Quilici; King & Spalding, Alexander
G. Calfo, Paul R. Johnson, Susan V. Vargas for
Defendants and Appellants Johnson & Johnson
and Johnson & Johnson Consumer, Inc.
Wilson Sonsini Goodrich & Rosati, Fred A.
Rowley, Jr.; Munger, Tolles & Olson, Jeffrey Y.
Wu, Matthew K. Donohue, Anne K. Conley,
Maggie Thompson; Foley & Mansfield, Gary D.
Sharp, Peter M. Mularczyk; Cravath, Swaine &
Moore, Darin McAtee for Defendants and
Appellants Colgate-Palmolive Company.
Kazan, McClain, Satterley & Greenwood,
Joseph D. Satterley, Denyse F. Clancy, Ian A.
Rivamonte, Michael T. Stewart for Defendant
and Respondent.
1