Jackson v. Colgate-Palmolive Company

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIAN JACKSON, Individually, and as
Personal Representative of the Estate of
Doris Jackson, Deceased,
Civil Action No. 15-01066 (TFH)
Plaintiff,
v.
COLGATE-PALMOLIVE COMPANY,
Defendant.
MEMORANDUM OPINION
I. INTRODUCTION
In this products liability action, Plaintiff alleges that his mother developed mesothelioma
due to asbestos exposure from her decades-long use of Cashmere Bouquet talcum powder, which
was manufactured, marketed, and/or sold by Defendant Colgate-Palmolive Company (“Colgate”)
from 1871 through 1995. Plaintiff asserts causes of action against Colgate for negligence, strict
liability, breach of implied warranty, wrongful death, and punitive damages. Am. Compl. [ECF
No. 24]. 1 Plaintiff has proffered Dr. Ronald Gordon, a pathologist and microscopist with a Ph.D.
in biology and experimental pathology, as an expert to testify regarding his testing and analysis
of various samples of Cashmere Bouquet-labeled talcum powder, as well as his analysis and
opinions concerning Ms. Jackson’s lung and lymph node tissue.
1
This lawsuit was initially filed by Plaintiff’s mother, Doris Jackson, on July 7, 2015.
Following Ms. Jackson’s death on October 28, 2015, Plaintiff Brian Jackson was substituted as
Plaintiff. Order (Mar. 1, 2016) [ECF No. 21].
Presently pending before the Court are Colgate-Palmolive Company’s Daubert Motion to
Exclude Testimony of Plaintiff’s Expert Dr. Ronald Gordon (“Daubert Motion”) [ECF No. 49],
Colgate-Palmolive Company’s Motion in Limine to Preclude All Testimony and Evidence
Regarding Purported Testing of Talc by Plaintiff’s Testing Experts Because of Lack of
Authenticity and Relevance of Talc Tested (“Colgate’s Motion in Limine”) [ECF No. 45], 2 and
Plaintiff’s Motion in Limine to Exclude Any Reference to Dr. Ronald Gordon’s Criminal History
and Related Matters (“Plaintiff’s Motion in Limine”) [ECF No. 55]. Upon full consideration of
the parties’ submissions, the oral arguments held on February 13, 2017 and March 1, 2017, the
record in this case, and the applicable law, and for the reasons stated herein, the Court grants
Colgate’s Daubert Motion; grants in part and denies in part Colgate’s Motion in Limine; and
finds as moot Plaintiff’s Motion in Limine.
II. DAUBERT MOTION
Colgate seeks exclusion of Dr. Gordon’s opinions that (1) he detected asbestos in every
Cashmere Bouquet-labeled talc sample he tested, and (2) Ms. Jackson’s lymph node tissue
contained the same type of asbestos he found in the talc and that the asbestos in the talc therefore
caused Ms. Jackson’s mesothelioma. Daubert Mot. 1 [ECF No. 49]. Colgate argues that Dr.
Gordon’s opinions are unreliable and should be excluded pursuant to Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 589 (1993).
2
Plaintiff originally proffered two testing experts in this case, but he withdrew Sean
Fitzgerald as an expert on February 8, 2017. See Notice of Withdrawal [ECF No. 82].
Accordingly, the Court’s analysis of Colgate’s Motion in Limine only applies to the testing
performed by Dr. Gordon.
2
a. Legal Standard for Admissibility of Expert Testimony
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. “The party offering the expert’s testimony must establish by a preponderance
of the evidence that the expert testimony is admissible. . . .” McReynolds v. Sodexho Marriott
Servs., Inc., 349 F. Supp. 2d 30, 35 (D.D.C. 2004); see also Allison v. McGhan Med. Corp., 184
F.3d 1300, 1312 (11th Cir. 1999) (“[T]he proponent of the testimony does not have the burden of
proving that it is scientifically correct, but that by a preponderance of the evidence, it is
reliable”). Under Rule 702, “[a] district judge has broad discretion regarding the admission or
exclusion of expert testimony, and reversal of a decision . . . is appropriate only when that
discretion has been abused.” Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 567 (D.C. Cir.
1993).
In Daubert v. Merrell Dow Pharm., Inc., the Supreme Court explained that in applying
Rule 702, “the trial judge must ensure that any and all scientific testimony or evidence admitted
is not only relevant, but reliable.” 509 U.S. 579, 589 (1993). Expert testimony may not be based
on “subjective belief and unsupported speculation,” and instead must be “ground[ed] in the
methods and procedures of science.” Id. at 590. The Daubert court set forth a non-exclusive list
of factors that courts may consider when evaluating scientific validity: “whether the theory or
technique had been tested, whether it had been subjected to peer review and publication, the
3
method’s known or potential error rate, and the method’s general acceptance in the scientific
community.” Meister v. Med. Eng’g Corp., 267 F.3d 1123, 1127 (D.C. Cir. 2001) (citing
Daubert, 509 U.S. at 593-94). “[N]one of the factors discussed is necessarily applicable in every
case or dispositive; nor are the four factors exhaustive.” Ambrosini v. Labarraque, 101 F.3d 129,
134 (D.C. Cir. 1996).
But Daubert does not require that “judges become scientific experts, much less
evaluators of the persuasiveness of an expert’s conclusions.” Id. Instead, courts are to focus on
experts’ “principles and methodology, not on the conclusions they generate.” Daubert, 509 U.S.
at 595.
b. Dr. Gordon’s Qualifications
Dr. Gordon holds a doctorate with a focus on experimental pathology and biology from
State University of New York, Stony Brook. Daubert Hr’g Tr. 4:5-4:6, Feb. 13, 2017 [ECF No.
86]. He is the director of the Electron Microscopy Core Facility in Pathology at Mount Sinai
Hospital in New York City and also serves as a director for parts of the Mount Sinai Health
System. Id. at 4:17-4:24. As part of his employment, Dr. Gordon performs clinical diagnoses in
the Department of Pathology, conducts his own research, conducts collaborative research, and
teaches pathology and electron microscopy. Id. He has worked with an electron microscope
since 1972 and has published approximately 200 peer-reviewed papers. Id. at 6:17-6:22, 10:15-
10:18. Dr. Gordon has used the same base methodology at issue here to test, inter alia, human
tissue, floor tiles, drywall, auto v-belts, brakes, theater curtains, body filler, insulation, talcum
powders, and cosmetics for the presence of asbestos. Id. at 19:21-20:5.
4
c. Asbestos Detection Methods
Asbestos is defined as the asbestiform variety of the following six naturally occurring
minerals: chrysotile, crocidolite, amosite, tremolite, anthophyllite, and actinolite. Occupational
Exposure to Asbestos, Tremolite, Anthophyllite and Actinolite, 57 Fed. Reg. 24310-01, 24316
(June 8, 1992); see also 29 C.F.R. § 1910.1001; 40 C.F.R. § 763.163. “Chrysotile belongs to the
family of minerals called serpentine minerals. The remaining five minerals belong to the family
of minerals called amphiboles.” 57 Fed. Reg. at 24316.
Dr. Gordon has reported finding anthophyllite asbestos in all of the containers of
Cashmere Bouquet-labeled talc he tested, “with many also containing tremolite asbestos and
some even containing chrysotile type asbestos.” Gordon Rep. 5 [ECF 58-3]. Dr. Gordon also
reported finding tremolite asbestos fibers in Ms. Jackson’s lymph node tissue. Id. at 23. A brief
overview of several asbestos detection methods is instructive.
i. The United States Pharmacopeia Method
The Food and Drug Administration (“FDA”) regulates the use of talc in cosmetics and
utilizes the United States Pharmacopeia (“USP”) method when testing talc for the presence of
asbestos. See 21 U.S.C. § 321(i); 21 C.F.R. § 73.1550(b). As it is important to distinguish
asbestos from a cleavage fragment, talc, or an accessory mineral, the USP method first requires
an analyst to perform infrared absorption or x-ray diffraction (“XRD”) on a sample of talc. USP
Monograph 4826-27 [ECF No. 49-25]. If either test is positive, the analyst then proceeds to
analyze the sample using a polarized light microscope (“PLM”) to determine if it contains a
population of fibers with the following asbestiform characteristics:
1) a range of length to width ratios of 20:1 to 100:1, or higher for fibers longer
than 5 µm;
2) capability of splitting into very thin fibrils; and
5
3) two or more of the following criteria:
(i) parallel fibers occurring in bundles;
(ii) fiber bundles displaying frayed ends;
(iii) fibers in the form of thin needles; and
(iv) matted masses of individual fibers and/or fibers showing curvature.
Id.Dr. Gordon challenges the USP method because he believes it is unreliable and can lead
to potential false negative results. Daubert Hr’g Tr. at 54:23-55:20; 57:14-16, Feb. 13, 2007
[ECF No. 86]. Accordingly, Dr. Gordon did not use the USP method when testing the Cashmere
Bouquet-labeled talc; instead, he performed his testing using a modified version of a method
developed by George Yamate, et al., as set forth in Methodology for the Measurement of
Airborne Asbestos by Electron Microscopy (“Yamate Method”) [ECF No. 49-34].
ii. The Yamate Method
The Yamate Method contains three different levels of analysis, and each level involves
examining a sample using an electron microscope. Id. at 5. Prior to testing, a sample is prepared
and placed on an electron microscope grid. Id. The “counting rule” of the Yamate Method is a
“minimum 100 fibrous structures per known area (complete grid opening) or 10 grid openings,
whichever is first.” Id. But “[f]or very low asbestos presence, or for asbestos contamination
studies . . . counting 20 grid openings from each of 2 grids (10 per grid) is recommended.” Id.
Knowledge of the history, source and location of the sample, and the purpose and
objective of the analysis aids in selecting the correct level of analytical effort.
Simply “grinding the samples out” neither is cost-effective nor produces the best
results, especially for Level II and Level III analyses. Instead of all Level I, all
Level II, or all Level III, the majority of the analyses may be Level I, followed by
some Level II. Level III could be used in its entirety or only at the analytical phase.
If the source is known to contain no amphibole-type interference, or if chrysotile is
of interest, gold-coating can be eliminated.
6
If a legal proceeding is anticipated, Level III analysis will be required where a
chain-of-custody record is kept from collection, transport to the laboratory,
preparation, analysis, data reduction, and reporting of results. EM [electron
microscope] finder grids must be used for grid transfer. In addition, for quality
assurance, a second laboratory must be available for analyzing a portion of the
sample using the same degree of custodial care. QC/QA [quality control/quality
assurance] protocols must be observed and records kept.
Whenever possible, and especially for unknown source samples, 10 to 20% of each
set of samples should be analyzed by Level II analysis prior to using Level I as a
screening procedure.
Level I is a relatively rapid procedure, and can be used by many laboratories with
access to conventional TEM [transmission electron microscopy]. However, Level
I results should not be used in legal proceedings. If “positives” or “false positives”
are found, especially in areas where asbestos is known to be absent, and the field
blank and laboratory blank have been checked, Level II analysis, and possibly
Level III analysis, should be performed.
Id. All three levels of analysis require data to “be recorded in a systematic form so that they can
be processed rapidly. Sample information, instrument parameters, and the sequence of
operations should be tabulated for ease in data reduction and subsequent reporting of results.”
Id. at 21, 38.
1) Level I
Level I analysis “is a monitoring or screening technique” that utilizes morphology and
selected area electron diffraction (“SAED”) to analyze samples. Id. at 8, 17. For the
morphology analysis, “a grid opening is selected at random” and is examined with an electron
microscope to determine whether an asbestos structure is located within the opening.” Id. at 19-
20. 3 The analyst then performs SAED analysis to determine the pattern of the asbestos structure
and classify it as chrysotile, amphibole group, ambiguous, or “no identification.” Id.
3
Asbestos structures recognized by the Yamate Method include fibers, bundles, clusters,
and matrixes. Yamate Method at 17-18. A fiber as “a particle with an aspect ratio of 3:1 or
greater, with substantially parallel sides”; a bundle is a “particulate composed of fibers in a
7
2) Level II
Level II analysis “is a regulatory technique consisting of Level I analysis plus chemical
elemental analysis. Morphology, size, SAED pattern, and chemical analysis are performed
sequentially.” Id. at 24. The chemical analysis is performed using energy dispersive
spectroscopy (“EDS”), which obtains “a spectrum of the x-rays generated by the asbestos
structure. The profile of the spectrum is compared with profiles obtained from asbestos
standards; the best (closest) match identifies and categorizes the structure.” Id. at 37. Because
“[a]sbestos has a varying elemental composition,” EDS as used in asbestos analysis is
“semiquantitative at best.” Id. at 39.
3) Level III
Level III analysis “is an objective, confirmatory-type analysis and consists of Level II
analysis plus quantitative SAED analysis from two different near-exact zone-axis orientations on
a selected number of fibers identified for detailed SAED analysis during the course of Level II
analysis.” Id. at 44. The Yamate Method requires Level III analysis where legal proceedings are
anticipated. Id. at 5. Zone-axis tilting physically tilts the fiber under the electron microscope to
allow the analyst to obtain another view of the diffraction pattern for further evaluation and
confidence: “[t]he primary emphasis in Level III analysis is on the positive identification of the
amphibole type.” Id. at 45.
parallel arrangement with each fiber closer than the diameter of one fiber”; a cluster is a
“particulate with fibers in a random arrangement such that all fibers are intermixed and no single
fiber is isolated from the group”; and a matrix is “a fiber or fibers with one end free and the other
end embedded or hidden by a particulate.” Id.
8
4) Criteria for Selecting the Correct Level of Analysis
The Yamate Method sets forth the following criteria to be considered in selecting the
correct level of analysis:
Knowledge of the history, source and location of the sample, and the purpose
and objective of the analysis aids in selecting the correct level of analytical
effort. Simply “grinding the samples out” neither is cost-effective nor
produces the best results, especially for Level II and Level III analyses.
Instead of all Level I, all Level II, or all Level III, the majority of the analyses
may be Level I, followed by some Level II. Level III could be used in its
entirety or only at the analytical phase. If the source is known to contain no
amphibole-type interference, or if chrysotile is of interest, gold-coating can
be eliminated.
If a legal proceeding is anticipated, Level III analysis will be required where
a chain-of-custody record is kept from collection, transport to the laboratory,
preparation, analysis, data reduction, and reporting of results. EM [electron
microscope] finder grids must be used for grid transfer. In addition, for
quality assurance, a second laboratory must be available for analyzing a
portion of the sample using the same degree of custodial care. QC/QA
[quality control/quality assurance] protocols must be observed and records
kept.
Whenever possible, and especially for unknown source samples, 10 to 20%
of each set of samples should be analyzed by Level II analysis prior to using
Level I as a screening procedure.
Level I is a relatively rapid procedure, and can be used by many laboratories
with access to conventional TEM [transmission electron microscopy].
However, Level I results should not be used in legal proceedings. If
“positives” or “false positives” are found, especially in areas where asbestos
is known to be absent, and the field blank and laboratory blank have been
checked, Level II analysis, and possibly Level III analysis, should be
performed.
Yamate Method at 5. All three levels of analysis require data to “be recorded in a systematic
form so that they can be processed rapidly. Sample information, instrument parameters, and the
sequence of operations should be tabulated for ease in data reduction and subsequent reporting of
results.” Id. at 21, 38.
9
5) Dr. Gordon’s Modifications
As summarized in his 2014 article titled Asbestos in Commercial Cosmetic Talcum
Powder as a Cause of Mesothelioma in Women, Dr. Gordon performed his testing of the talc
samples using a “modified” Yamate Method. Gordon, Fitzgerald and Millette, Asbestos in
Commercial Cosmetic Talcum Powder as a Cause of Mesothelioma in Women, Int’l J. Occup. &
Envtl. Health 20 (4):318 (2014) [ECF No. 57-11]. Dr. Gordon explained that he followed a
modified Level II analysis because it recommended essentially the same method he was already
using – morphology, EDS, and SAED. Daubert Hr’g Tr. 63:24-64:10, Feb. 13, 2017. He did
not feel that the zone-axis tilting required by Level III was necessary in his analysis because it
would not “add anything more to the determination of the fiber types.” Id. at 65:13-65:25.
Instead, he utilized an “overlay” method by which he electronically placed a diffraction pattern
from an internationally recognized control specimen of asbestos over the displayed pattern to
compare the two. Id. at 67:23-69:16. Dr. Gordon also reviewed all of the grid openings on every
grid of talc he tested, and he did not record the location of the grid openings containing the fibers
he determined to be asbestos. Daubert Hr’g Tr. 52:18-52:24, 76:5-76:25, Feb. 13, 2017.
d. Dr. Gordon’s Product Contamination Opinion
Using the modified methodology described above, Dr. Gordon tested over 50 containers
of Cashmere Bouquet-labeled talc and “found asbestos fibers in all those containers,”
specifically anthophyllite, tremolite, and chrysotile. Gordon Rep. 5 [ECF No. 58-3]. Dr. Gordon
extrapolates these findings to conclude that “every container of Cashmere Bouquet contained
some amount of asbestos.” See, e.g., Pl.’s Supp. 1, 4 [ECF No. 90]. The Court finds that Dr.
Gordon’s product contamination opinion is unreliable and should therefore be excluded under
Daubert for two independent reasons: (1) his testing method failed to reliably distinguish talc
10
from asbestos; and (2) his testing results are not verifiable because he failed to record the
location of the grid openings containing the fibers he determined to be asbestos.
i. Failure to reliably distinguish talc from asbestos
Colgate argues that the “modified” Yamate Method employed by Dr. Gordon “does not
account for the well-known risks of false positives.” Daubert Mot. at 15 [ECF No. 49]. The
Court agrees. By its terms, the Yamate Method requires the Level III quantitative SAED
analysis “for confirming asbestos identification, especially in judicial controversies and other
special situations.” Yamate Method at 4 [ECF No. 49-34]. Although Dr. Gordon testified that
by not performing the zone-axis tilt, he was under-counting the anthophyllite, if anything, rather
than possibly over-counting it, id. at 80:13-81:1, the Court finds that by failing to perform the
zone-axis SAED analysis required by Yamate Level III, Dr. Gordon failed to reliably distinguish
talc from anthophyllite. See World Health Organization, IARC Monographs Vol. 93 at 286
(“Talc platelets on end and talc intergrown with amphibole in fibrous talc have complex electron
diffraction patterns that may resemble other silicates, including amphiboles . . . unless carefully
indexed.”); Daubert Hr’g Tr. 111:12-112:9, Feb. 13, 2017; see also Hanson v. Colgate-
Palmolive Co., 353 F. Supp. 3d 1273, 1285-1287 (M.D. Ga. 2018). There is no dispute that Dr.
Gordon did not perform this indexing, Daubert Hr’g Tr. 115:13-16, Feb. 13, 2017, and by
forgoing the quantitative SAED analysis required by Yamate Level III, he did not reliably
confirm (or disconfirm) his identification of asbestos in the talc at issue. Accordingly, his
product contamination opinion will be excluded.
ii. Failure to properly record testing results
The Court finds that Dr. Gordon’s product contamination opinion should also be
excluded as unreliable under Daubert due to his failure to record the locations of the grid
11
openings containing the fibers he identified as asbestos. Colgate argues that “Dr. Gordon’s
failure to comply with the Yamate method’s recordkeeping requirements is yet another
digression from generally accepted methods” and “makes it impossible for another scientist to
verify or replicate his results.” Daubert Mot. at 32 [ECF No. 49]. It is undisputed that Dr.
Gordon did not follow the Yamate Method’s data recording protocols. Gordon Dep. 166:19-23,
Mar. 20, 2015 [ECF No. 49-15]. 4 In fact, he did not record the grid location of any fibers he
identified as asbestos during his testing. Id. at 163:19-22. 5 Accordingly, Dr. Gordon admits that
the only way for another analyst to potentially review his testing and confirm whether a
particular fiber was asbestos would be to re-inspect each one of the thousands of grid openings
he reviewed. Id. at 163:23-165:13; see also Daubert Hr’g Tr. 121:20-122:3, Feb. 13, 2017 [ECF
No. 86].
Plaintiff argues that Dr. Gordon’s failure to record the location of the asbestos fibers does
not render his testing results unverifiable: “[A]ny reviewer of Dr. Gordon’s grids would need to
do as he did: review each grid opening – the only thing required to review Dr. Gordon’s analysis
is time.” Pl.’s Opp’n at 19 [ECF No. 58]. But Dr. Gordon himself has admitted it may not be
possible for another analyst to review the grids and verify his results because of damage that can
occur to the grids:
4
Additionally, rather than follow the Yamate Method’s “counting rule,” Dr.
Gordon typically counted 500 grid openings (or more) for each sample of talc to get the
analytical sensitivity needed to register whether asbestos was present in a given sample of talc.
Daubert Hr’g Tr. 40:24-41:10, Feb. 13, 2017.
5
Plaintiff also argues that “[r]ecording the specific locations of fibers found on a
grid is a matter of analyst preference and not of scientific mandate.” Pl.’s Opp’n at 20. But the
Yamate Method that Dr. Gordon chose to follow clearly states that data should “be recorded in a
systematic form so that they can be processed rapidly. Sample information, instrument
parameters, and the sequence of operations should be tabulated for ease in data reduction and
subsequent reporting of results.” Yamate Method at 21, 38.
12
Q: And for all of the fibers that you identified and all of that testing, you didn’t
identify in which grid opening you found any particular fiber, did you?
A: Correct.
Q: And so if someone wanted to confirm your assessment or hypothesis as to
whether or not a particular fiber was or was not asbestos, they wouldn’t be able to
find a grid opening in the fiber, would they?
A: If they looked at all of them, they might.
Q: And they might not.
A: And they may not.
Because in transport and everything else, the fiber could have come off, or the –
from doing the analysis by the way that I do, the grid opening may crack.
Gordon Dep. 163:19-164:8, Mar. 20, 2015 [ECF No. 49-15]. Accordingly, it is clear to the
Court that Dr. Gordon’s product testing results are not reproducible and must therefore be
excluded as unreliable. See Hanson, 353 F. Supp. 3d at 1284 (“Without location information,
Dr. Gordon’s findings are supported merely by his personal assurances he found asbestos fibers
somewhere in the thousands of grid openings. This is exactly the sort of chicanery and ipse dixit
the Court must exclude.”); see also United States v. Hebshie, 754 F. Supp. 2d 89, 125 (D. Mass.
2010) (“Documentation is necessary to test a hypothesis; in fact, reproducibility is the sine qua
non of ‘science.’”). For these reasons, Dr. Gordon’s product contamination opinion shall be
excluded.
e. Dr. Gordon’s Tissue Testing and Specific Causation Opinion
Dr. Gordon opines that Ms. Jackson was exposed to tremolite asbestos above background
levels, that Ms. Jackson had mesothelioma caused by asbestos, and that his findings of asbestos
in the vintage talc samples are consistent with his findings of asbestos in Ms. Jackson’s lymph
node tissue. Daubert Hr’g Tr. 89:12-89:18, 95:2-95:13, 100:21-101:1, Feb. 13, 2017; see also
13
Gordon Rep. 24 (“[I]t is my opinion that Ms. Jackson had a significant exposure to asbestos. It
is my opinion with a reasonable degree of scientific certainty that the asbestos fibers were the
causative factor in the development of Ms. Jackson’s malignant mesothelioma. This finding of
tremolite as well as talc is consistent with exposure to cosmetic talcum powder products,
including Cashmere Bouquet.”).
i. Tissue Testing
Dr. Gordon received 0.04 grams of Ms. Jackson’s lung tissue and 0.22 grams of her
lymph node tissue for testing purposes. Daubert Hr’g Tr. 83:3-83:18, Feb. 13, 2017. After
separating the tissue from the particulate material contained in it, Dr. Gordon analyzed the
samples using the same methodology used for his talc testing. 6 Id. at 20:6-21:8. During his
analysis of Ms. Jackson’s lung tissue, Dr. Gordon detected talc, but not asbestos. Id. at 84:20-
84:22. 7 Dr. Gordon detected one fiber of tremolite asbestos in Ms. Jackson’s lymph node tissue,
and he then extrapolated that finding to conclude that “[e]lectron microscopic analysis of the
lymph node tissue revealed amphibole type asbestos fibers in a calculated concentration of 9409
fibers per gram wet weight with a limit of detection of 9409 fibers per gram wet weight.”
Gordon Rep. 23; Daubert Hr’g Tr. 85:19-87:10, Feb. 13, 2017.
6
The Court’s findings regarding the reliability issues arising from Dr. Gordon’s talc
testing methodology also apply here in relation to his tissue testing.
7
See Gordon Rep. 23 (“Electron microscope analysis of the lung tissue did not reveal any
asbestos fibers above the limit of detection of 6900 fibers per gram wet weight. However, there
were a number of very small asbestos fibers identified as chrysotile by energy dispersive
spectroscopy (EDS) and SAED analysis. These fibers were not counted because they were less
than 1 micrometer in length. Talc, aluminum silicates and silica were also observed but not
counted.”).
14
ii. Specific Causation Opinion
Dr. Gordon’s specific causation opinion (i.e., that Ms. Jackson’s mesothelioma was
caused by her exposure to asbestos in Cashmere Bouquet) purports to rely on the Helsinki
Criteria. See Asbestos, asbestosis, and cancer: the Helsinki Criteria for diagnosis and
attribution, Scand J Work Environ Health 1997 [ECF No. 49-42]; see also Daubert Hr’g Tr.
146:15-20, Feb. 13, 2017. The Helsinki Criteria was introduced by experts in a 1997 consensus
report that was published following the International Expert Meeting on Asbestos, Asbestosis,
and Cancer, which was convened “to discuss disorders of the lung and pleura in association with
asbestos and to agree upon state-of-the-art criteria for their diagnosis and attribution with respect
to asbestos.” Helsinki at 1. In order to attribute mesothelioma to asbestos exposure, the Helsinki
Criteria explains that
[a] lung fiber count exceeding the background range for the laboratory in question
or the presence of radiographic or pathological evidence of asbestos-related tissue
injury (eg, asbestosis or pleural plaques) or histopathologic evidence of abnormal
asbestos content (eg, asbestos bodies in histologic sections of lung) should be
sufficient to relate a case of pleural mesothelioma to asbestos exposure on a
probability basis. In the absence of such markers, a history of significant
occupational, domestic, or environmental exposure to asbestos will suffice for
attribution.
Id. at 4.
There is no evidence that Ms. Jackson had asbestos fibers in her lungs, asbestosis or
pleural plaques, or asbestos bodies in her lungs. Dr. Gordon’s specific causation opinion,
therefore, is based on the single tremolite asbestos fiber he detected in Ms. Jackson’s lymph node
tissue, which he contends establishes that “Ms. Jackson had an above background exposure to
asbestos.” Daubert Hr’g Tr. 160:15-19, Feb. 13, 2017.
First, Dr. Gordon’s specific causation opinion does not meet the Helsinki Criteria’s
requirements for attributing Ms. Jackson’s mesothelioma to asbestos exposure because he failed
15
to locate any asbestos fibers in Ms. Jackson’s lung tissue. Dr. Gordon himself has admitted that
“Helsinki, as written, does not support [his] conclusion that [Ms. Jackson] was exposed to
asbestos above background based upon [his] findings in lung tissue.” Gordon Dep. 210:17-24,
Sept. 29, 2016 [ECF No. 49-33]. Although Plaintiff contends that “it is entirely possible” that
Dr. Gordon would have found asbestos fibers in Ms. Jackson’s lung tissue if he had received a
larger volume of tissue to examine, such speculation cannot serve as the basis for his causation
opinion.
Second, even if the finding of a single asbestos fiber in Ms. Jackson’s lymph node tissue
was sufficient under Helsinki to attribute Ms. Jackson’s mesothelioma to asbestos exposure, the
laboratory control group relied upon by Dr. Gordon to support his opinion that Ms. Jackson had
an above background exposure to asbestos suffers from several material defects that render its
use inadmissible. As the court succinctly explained in Hanson v. Colgate-Palmolive Company,
in which Dr. Gordon’s use of the same control group at issue here was challenged by Colgate:
[W]ith respect to the first Helsinki criterion, Dr. Gordon’s finding of above-
background asbestos levels in Mrs. Hanson’s lungs relies on a control group of his
own creation for which there are too many unanswered questions and hallmarks of
impropriety. Dr. Gordon’s current control group consists of thirty-five patients who
have been “documented” not to have any evidence of asbestos exposure based on
“histories taken by trained individuals, trained MDs ....” (Id. at 128:9-16.) But Dr.
Gordon does not have any documentation of their medical or exposure histories.
(Id. at 139:2-11.) Documentation is limited to age range, gender, a list of “means
and ranges,” and fiber analysis worksheets. (Id. at 139:9-11; 140:23-141:16.) Dr.
Gordon has never submitted his control group to the scientific community or had the
group peer reviewed. (Id. at 136:25-138:1.)
While it is true a valid control group must consist of persons without lung disease
who have no history of exposure to asbestos, Dr. Gordon’s entire control group is
pristine with respect to asbestos, meaning no one returned a tissue sample with any
countable asbestos fibers. (Gordon Brandt Testimony 7/12/2017, doc. no. 67-3, p.
28:2-4.) Dr. Gordon admits there is no control group in the world other than his
where the members have no countable asbestos fibers. (Id. at 27:4-15.) Dr. Gordon
explains “no other laboratory depends on results that are even current” and “if they
16
did it the way I did it, they probably would” have no countable asbestos fibers in
their control group. (Id.)
Dr. Gordon’s control group previously exceeded 200 people and had members with
countable asbestos fibers. (Id. at 16:23-25.) Dr. Gordon admits “some” of the
decrease from 200 to thirty-five occurred when he discovered members had
countable asbestos fibers, and he further admits none of those removed suffered an
asbestos-related disease necessitating their removal from the control group. (Id. at
18:5-8.) Dr. Gordon explains the reduction from 200 to thirty-five patients was
warranted because he never found anybody with countable asbestos fibers caused
by background sources since the 1980s. (Id. at 17:5-10.) Nevertheless, Dr. Gordon
has co-authored studies where countable asbestos fibers were detected in tissue of
the background group. (Id. at 18:9-12.)
Dr. Gordon admits the amount of background asbestos can vary depending on where
a person lives. (Gordon Dep. 5/1/2017, p. 135:3-6.) Nevertheless, even though
asbestos would be part of the ambient air for a person living near a factory using or
producing asbestos products, according to Dr. Gordon, the person could not
represent “true background.” (Id. at 130:14-20.) Thus, Dr. Gordon testified only
people who have “never had any contact with asbestos of any kind” can create “true
background levels.” (Id. at 131:6-8.) As a result, a finding of a single countable
asbestos fiber exceeds the background established by Dr. Gordon’s current control
group. (Id. at 127:14-16.)
Dr. Gordon’s control group appears from the circumstances to be a creation of his
own making designed to generate a pristine environment where a single countable
asbestos fiber exceeds background levels. The control group has not been peer
reviewed, and Dr. Gordon’s penchant for little to no documentation of his work
makes it impossible for defense experts to conduct a meaningful review of the
selection process for the original group of 200 or the winnowing to the current group
of thirty-five. The Court has no reasonable assurance the control group accurately
reflects background levels in the general population.
353 F. Supp. 3d at 1289 (some internal citations omitted); see also Daubert Hr’g Tr. 90:10-
91:25, Feb. 13, 2017; Daubert Hr’g Tr. 19:10-22:4, Mar. 1, 2017 [ECF No. 91]. Here, the Court
shares the same concerns as the Hanson Court regarding the reliability of Dr. Gordon’s control
group. While Plaintiff argues that these issues are more appropriate for the jury to consider as it
weighs the opinions of the parties’ competing experts, the Court disagrees. It will not permit any
testimony related to or relying on Dr. Gordon’s control group.
17
Finally, there is one additional aspect of Helsinki that allows for attribution of
mesothelioma to significant asbestos exposure: the patient’s history. Helsinki at 4 [ECF No. 49-
42]. Dr. Gordon places significant weight on this factor in formulating his causation opinion:
I reviewed both the discovery and the video deposition testimony of Ms. Jackson.
In reviewing the exposure information, I noted the following facts, which I will
assume to be true for purposes of formulating an opinion concerning the causation
of her malignant mesothelioma. This is not meant to be a comprehensive, a material
science report, mineralogy report, or a specific product identification report. It is
simply a qualitative demonstration of the kinds of exposure reported in her
deposition.
According to her deposition testimony, Ms. Jackson used Cashmere Bouquet body
talcum powder on a daily basis from the 1940s to approximately 1990. She would
shake out the powder during its application while in her bathrooms after showering
and bathing. Ms. Jackson is not aware of any other exposures to asbestos in her
lifetime, either occupationally or para-occupationally. She was examined at length
in her depositions regarding all potential exposures she sustained or might have
sustained in her lifetime.
Gordon Rep. 5. But, as revealed during discovery, Dr. Gordon was entirely unaware that either
Ms. Jackson or a member of her family represented that she had been exposed to asbestos from
“[c]eiling pipes with degrading insulation” during her more than thirty-year career as a school
teacher in the D.C. Public School system. Daubert Hr’g Tr. 162:2-165:20, Feb. 13, 2017. Dr.
Gordon’s opinion failed to take this information regarding Ms. Jackson’s reported occupational
exposure into account, and attributing her mesothelioma solely to her used of Cashmere Bouquet
fails to satisfy the Helsinki Criteria.
For these reasons, the Court finds that Dr. Gordon’s specific causation opinion is
unreliable under Daubert, and it shall be excluded.
III. COLGATE’S MOTION IN LIMINE
Although the Court has excluded Dr. Gordon’s product contamination opinion for the
reasons detailed above, thereby mooting many of the issues presented in the pending Motion in
18
Limine to Preclude All Testimony and Evidence Regarding Purported Testing of Talc by
Plaintiff’s Testing Experts Because of Lack of Authenticity and Relevance of Talc Tested [ECF
No. 45], the Court will now proceed to its analysis of the authenticity of the talc samples tested
by Dr. Gordon.
To substantiate his claims, Plaintiff does not rely on testing of specific containers of
Cashmere Bouquet used by his mother, but instead on Dr. Gordon’s testing of samples of talcum
powder obtained through other sources. Those sources can be grouped into four general
categories: (1) talc from Cashmere Bouquet containers purchased by law firms on the internet or
at antique fairs; (2) talc from Cashmere Bouquet containers that had previously been maintained
in display cases at Colgate facilities and offices; (3) talc from vintage Cashmere Bouquet
containers, and a container of “AGI 1615” talc that were stored in a lab at the Mount Sinai
School of Medicine; and (4) talc from a Cashmere Bouquet container claimed to have been
discovered by Kristi Lescalleet, a plaintiff in another lawsuit against Colgate that was filed in
Maryland state court.
Colgate argues that the testimony and evidence related to Dr. Gordon’s testing of the
various talcum powder samples should be excluded because the authenticity of the talcum
powder cannot be established due to decades-long gaps in the chains of custody. It follows, then,
Colgate argues, that if the talcum powder samples tested by Dr. Gordon cannot be properly
authenticated as Cashmere Bouquet in its original form, the results of his testing are simply not
relevant. Plaintiff opposes the motion, arguing that there is sufficient evidence to establish that
the samples are authentic, and that the challenges raised by Colgate go to the weight of the
evidence, not its admissibility, and should therefore be determined by the jury.
19
a. Legal Standard
The Court must first identify the appropriate standard to apply in determining whether an
expert witness may testify about the results of analyses of physical evidence when that physical
evidence will not otherwise be introduced at trial. Colgate asserts that the Court should look to
Federal Rule of Evidence 901, which states that “[t]o satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is,” Fed. R. Evid. 901(a), and relevant case
law concerning admissibility of tangible objects. Mot. in Limine 8-10 [ECF No. 45]. Such
evidence is often presented in the form of “chain of custody” documentation or testimony.
Plaintiff, on the other hand, urges the Court to consider Federal Rule of Evidence 703,
which states in part:
An expert may base an opinion on facts or data in the case that the expert has been
made aware of or personally observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in forming an opinion on the subject,
they need not be admissible for the opinion to be admitted.
Fed. R. Evid. 703 (emphasis added). Placing emphasis on the second sentence of Rule 703,
Plaintiff argues that because the samples of talcum powder themselves will not be introduced
into evidence at trial, authentication and “rigid” chain of custody requirements are not
applicable. Opp’n to Mot. in Limine 26-28 [ECF No. 57].
While Rule 703 does afford experts the ability to testify based on evidence that may not
otherwise be admissible, the proponent of the testimony must first establish that the expert’s
reliance on the subject evidence is reasonable. Accordingly, Plaintiff must establish that the
talcum powder samples could be reasonably relied upon by Dr. Gordon as authentic Cashmere
Bouquet in its original form. Absent such a showing, his testimony would simply be unreliable.
So, although it is not conducting an admissibility analysis under Rule 901, it is proper for the
20
Court to evaluate “chain of custody” type evidence to determine whether the talcum powder
samples at issue presented a reliable basis for Gordon’s opinions.
In a chain of custody claim, the party presenting the evidence has the burden to show that
the evidence is “still what the proponent claims it to be,” but a “complete chain of custody need
not always be proved.” United States v. Mejia, 597 F.3d 1329, 1336 (D.C. Cir. 2010) (quoting 2
McCormick on Evid. § 213 (6th ed. 2009)). “The proponent of the evidence need only
‘demonstrate that, as a matter of reasonable probability, possibilities of misidentification and
adulteration have been eliminated.’” United States v. Mitchell, 816 F.3d 865, 872 (D.C. Cir.
2016), cert. denied, 137 S. Ct. 532 (2016) (quoting Mejia, 597 F.3d at 1336 (internal quotation
marks omitted)). Indeed, “gaps in the chain of custody normally go to the weight of the evidence
rather than its admissibility.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, n.1 (2009)
(citation omitted). The Court now turns to the parties’ arguments.
b. The Parties’ Arguments
From the outset, Colgate accepts that the vintage Cashmere Bouquet containers
themselves “could possibly be” authentic. Reply 8 [ECF No. 73]. Colgate, however,
strenuously challenges the purported originality of the talc inside the containers. Colgate points
to the decades-long gaps in the chains of custody, the characteristics of certain containers,
testimony that asbestos exists in ambient air, and the “community of vintage talc container
collectors who refill antique containers with other talc for display purposes.” Mot. in Limine 5,
14-15; Reply 9.
21
In response, Plaintiff does not rely on chain of custody evidence. Instead, he presents
evidence and argument in the vein of “distinctive characteristics and the like.” 8 Opp’n at 11; see
also Fed. R. Evid. 901(b)(4). Based on Ms. Jackson’s memory, the packaging and contents of
Cashmere Bouquet containers she used were consistent with the look and contents of the vintage
containers offered here. Opp’n at 11 (citing D. Jackson Dep. 92:8-95:18, Sept. 28, 2016 [ECF
No. 57-17]; D. Jackson Video Dep. 44:10-44:19, Sept. 29, 2016 [ECF No. 57-16]). The
packaging of the vintage containers also matches images published by Colgate in its Annual
Reports. Id. at 12 n.35. Colgate does not dispute this.
Plaintiff offers additional testimony and documents, or purported “indicia of reliability,”
in an attempt to connect the tested contents of the vintage containers, for which there are no
chains of custody, to known Cashmere Bouquet samples and sources. Opp’n at 5. To assess
whether the facts and assertions presented are indeed “indicia of reliability,” certain background
information related to talc sources, historic testing results, and container type is necessary.
c. Background Facts
i. Historic Cashmere Bouquet Sources and Testing Results
Historically, Colgate purchased the talc used in Cashmere Bouquet from a number of
suppliers in the United States. Those suppliers in turn sourced talc from mines located in the Val
Chisone region of Italy; Regal, North Carolina; and Willow Creek, Montana. See Cashmere
Bouquet Formula Sheets dated 9/26/68, 7/29/70, 4/6/72 [ECF No. 57-20]; Def.’s Resp. to Req.
8
Plaintiff also argues that Colgate has “admitted the authenticity of the contents of the
historical containers” through stipulations in other courts. Opp’n at 6. The Court disagrees and
will not consider any prior stipulations or purported stipulations of authenticity in other courts or
through circumstantial inferences. See United States v. Kanu, 695 F.3d 74, 78 (D.C. Cir. 2012)
(“District courts . . . are vested with broad discretion in determining whether to hold a party to a
stipulation. . . .”) (quoting Wheeler v. John Deere Co., 935 F.2d 1090, 1098 (10th Cir. 1991)).
22
for Admissions Nos. 35-38 [ECF No. 57-15]; Capdevielle Dep. 198:11-211:16, Jan. 23, 2015
[ECF No. 57-18]; Trial Tr. 656:14-657:11, Winkle v. Calaveras Asbestos, LTD, Case No.
BC549253, (Super. Ct. of Cal., LA Cty. April 16, 2015) [ECF No. 57-21].
Colgate and its suppliers periodically tested the talc for asbestos. Colgate’s internal
testing in the late 1960s and early-to-middle-1970s periodically found North Carolina talc
“positive for tremolite” asbestos, Montana talc “positive for anthophyllite & tremolite” asbestos,
and Italian talc “positive for tremolite” asbestos. Capdevielle Dep. 104:24-106:2, 177:10-177:20
(Jan. 23, 2015); Winkle Trial Tr. 860:26-861:17, 867:3-875:26, 881:22-886:10, 1068:13-
1069:11; Colgate Lab Notebook 3-3388, entries on 9/20/71, 1/27/76, 3/5/76, 3/7/76, 10/27/76;
Johns Manville October 1968 Petrographic Examination [ECF No. 57-26]. In 1976, Colgate
tested a known sample of Cashmere Bouquet previously obtained by the Cosmetic Toiletries and
Fragrance Association. That testing revealed tremolite and anthophyllite asbestos. Colgate Lab
Notebook 3-3388, entry on 3/25/76; Winkle Trial Tr. 886:11-888:22, 1066:2-1068:12. With
respect to the Italian talc, Keith Lehman, an ore miller for talc purchased by Colgate, testified
that at one point in 1986 the Italian talc was tested for asbestos and the results came back
positive for tremolite. Lehman Dep. Vol. 1, 25:9-28:11, 74:1-16, 142:9-145:13, Sept. 8, 2011;
Vol. 3, 488:16-490:2, Sept. 23, 2011 [ECF No. 57-24].
Colgate also used outside labs to test its talc for purity and asbestos. From 1974 through
1984, Colgate sent or had samples of ore and finished Cashmere Bouquet sent to McCrone
Associates labs for analysis. Opp’n to Mot. in Limine 15. While the origin of the talc was not
always specified, the samples included Italian talc and North Carolina talc. In the years of 1974,
1976, 1977, 1981, 1983, and 1984, some of those samples tested positive for tremolite and
chrysotile asbestos. Capdevielle Dep. 106:13-117:5, 122:1-124:22, 125:14-138:7, 144:20-
23
149:20, 162:20-167:6, 180:17-183:3, and attached Exs. 6, 7, 9-13 (Jan. 23, 2015); Winkle Trial
Tr. 694:15-20, 695:15-697:24, 698:12-701:5, 867:3-875:26, 911:9-913:8.
ii. Types of Cashmere Bouquet Containers Sold into the Market
Colgate sold Cashmere Bouquet in tin shaker containers, plastic bottle containers, and
round dusting containers with a powder puff. 9 See generally, Samples Chart [ECF No. 45-7].
Former Colgate employee Charles “Bud” Manson personally observed Cashmere Bouquet
packaging at Colgate’s New Jersey plant from roughly 1955 into the late 1970s and testified that
he observed each type of packaging during his multi-decade career. Manson Dep. 18:1-24:16,
Jan. 18, 2017 [ECF No. 78-1].
First, Mr. Manson testified regarding the tin shaker containers. He stated that the tin
shaker containers can be opened in two places: a smaller shaker opening at the top of the “neck”
of the container, and a seam spanning the entire circumference of the can at the “shoulder.” Id.
47:9-47:16, 50:7-55:6. At the manufacturing plant, the tins were quickly filled while open at the
shoulder. Id. The neck was then placed on top of the tin. Id. To use the container, one would
remove the cap from the top of the neck to expose the shaker holes. Id.
9
From left to right: tin shaker FA13-17; plastic bottle FA12-33; and round dusting powder
container FA13-07.
24
Mr. Manson also testified regarding the plastic bottle packaging. The plastic bottles have
one opening at the top covered by a plastic cap that was pushed or snapped on, not screwed into
place. Id. at 59:7-60:14. Unlike the shoulder seams on the tin shakers, the caps on the plastic
bottles were not designed to be removed and cannot be removed simply by pulling. Id. at 61:9-
62:8. This more modern-style cap can only be removed with a tool. Id. Typical use involves
rotating the cap to line up the pour holes, while further rotation closes the bottle. Id. at 60:1-
60:14.
Finally, Mr. Manson testified regarding the packaging of the round dusting powder
containers. The round containers open like a clamshell or have a removable lid. See Samples
Chart [ECF No. 45-7]; Manson Dep. 78:16-83:5. Both opening mechanisms expose the entire
container of talc for use with an included powder puff. Manson Dep. 78:16-83:5. Mr. Manson
testified that after the rounds were filled with talc, a line worker manually placed a “diaphragm”
into the package to “seal the powder from the air.” Id. He described the diaphragm as “friction
fit,” as opposed to a glued-in-place seal, and stated that it “fit inside the container tightly” and
the presence of the barrier prevented powder from spilling and kept the powder puff clean. Id.
Mr. Manson further testified that when he would open the containers to inspect them, he would
cut the diaphragm rather than pull it out. Id. at 78:9-82:18. Dr. Gordon tested talc from all three
types of containers.
d. Samples at Issue in Litigation
i. Vintage Cashmere Bouquet Containers Purchased by Law Firms
Between 2008 and 2012, various law firms purchased 19 vintage Cashmere Bouquet
containers from the internet and from an antique store. Mot. in Limine 4 (citing Samples Chart
¶¶ 1, 3-15, 35, 36, 39, 45, 46 [ECF No. 45-7]). Those containers have approximate
25
manufacturing dates from the 1930s through the mid-1970s. 10 Id. It is undisputed that the
containers are many years old and that the purchasing law firms were not the original buyers. Id.
at 4-5. There is no evidence in the record establishing how the containers were stored or
maintained in the time between when they were originally purchased or obtained through the
date they came into the various law firms’ control. Id. at 5.
Some of the round dusting powder containers contained an unadulterated paper or plastic
diaphragm prior to testing. Pl.’s Suppl. Mot. to Suppl. Opp’n 3 [ECF No. 78]; Dr. Gordon FA
10-42 [ECF No. 57-50]; Dr. Gordon FA 12-25 [ECF No. 57-39]; Dr. Gordon FA 12-26 [ECF
No. 57-40]; QuanTEM 254315 [ECF No. 57-49].
ii. Vintage Cashmere Bouquet Containers Produced by Colgate in Discovery
Colgate also produced 23 vintage Cashmere Bouquet containers in response to discovery
requests from plaintiffs in prior lawsuits. See Samples Chart [ECF No. 45-7]. Those containers
date from the early-mid 1950s to the early 1990s and “were drawn from collections of
miscellaneous containers of Colgate’s current and former products (not limited to Cashmere
Bouquet) maintained by Colgate’s Corporate Communications Department and often displayed
as ‘memorabilia’ in Colgate facilities.” Mot. in Limine 6. Some of the containers are tin, some
are plastic, and a few are round dusting powder containers. See Samples Chart. Although all of
the containers produced by Colgate had “been opened either before or during the time Colgate
maintained them,” Colgate does not suggest that its employees refilled the containers, and there
10
Colgate has approximated the manufacturing dates of the containers, without dispute
from Plaintiff, based on Colgate’s annual reports. Samples Chart 1 n.4 [ECF No. 45-7]. Those
reports typically include pictures of Colgate-manufactured products, and other published, dated
photographs of Cashmere Bouquet containers over time. Id.
26
has been no evidence presented to the Court that the caps on any of the plastic containers had
been forcibly removed. Mot. in Limine 6.
iii. Samples Stored at Mount Sinai School of Medicine
Dr. Gordon also tested three samples of talc that at one point were stored in the Mount
Sinai School of Medicine. One sample came from a container labeled “AGI 1615,” and the other
two came from vintage Cashmere Bouquet containers. Langer Aff. ¶¶ 3-4 (Sept. 2, 2015) [ECF
No. 45-24]; Nolan Cert. ¶¶ 2, 3 (Sept. 26, 2013) [ECF No. 45-12]; Samples Chart FA13-44,
FA13-43 [ECF No. 45-7]. The samples were originally held in the laboratory of Dr. Robert
Nolan, a researcher at Mount Sinai School of Medicine who was conducting research regarding
known asbestos-containing materials in occupational settings. Langer Dep. 36:7-37:19 (June 14,
2013) [ECF No. 45-25]. From 1977 through 1996, the vintage containers and the AGI 1615
sample were stored in unlocked drawers in labs at both Mount Sinai School of Medicine and
Brooklyn College. Nolan Dep. 233:7-234:15 (Sept. 12, 2013) [ECF No. 45-26]; Nolan Cert. ¶¶
3, 5 (Sept. 26, 2013); Langer Dep. 55:20-56:9 (June 14, 2013); Langer Aff. ¶¶ 7-11 (Sept. 2,
2015). Samples of asbestos-containing products were stored in the same drawers as the talc
samples. Langer Dep. 55:20-56:16 (June 14, 2013); Langer Aff. ¶¶ 3, 9, 11 (Sept. 2, 2015).
There is no evidence in the record that the talc samples were microscopically shielded or
otherwise protected in any way from the asbestos-containing materials. In 1996, the AGI 1615
sample and the vintage containers were transferred to a commercial storage space in Secaucus,
New Jersey, where they sat until Dr. Nolan retrieved them for purposes of litigation on May 7,
2013. Nolan Cert. ¶¶ 6-7 (Sept. 26, 2013); Nolan Dep. 38:1-40:14 (June 21, 2013) [ECF No. 57-
51]; Samples Chart 13 [ECF No. 45-7].
27
iv. The Kristi Lescalleet Sample
This sample of talc was brought to light by a plaintiff in a lawsuit in the Circuit Court for
Baltimore City, Maryland. In that case, one of the plaintiffs, Kristi Lescalleet, was deposed
twice. In her first deposition, she testified that she did not have any old tins or other containers
of Cashmere Bouquet. Lescalleet Dep. 61:1-61:5, Feb. 7, 2012 [ECF No. 45-13]. In her second
deposition, however, she claimed to have discovered a Cashmere Bouquet container dating from
the 1970s in her basement. Lescalleet Dep. 30:3-31:4, Dec. 13, 2012 [ECF No. 45-14]. Upon
finding the container in a box of stored items, she removed it and disposed of the remaining
contents of the box, including a second container of body powder, toothpaste and books. Mem.
Op. 21-22, Barlow v. Colgate-Palmolive Co., et al., Consolidated No. 24X11000783 (Cir. Ct.
Balt. City Nov. 13, 2015) [ECF No. 45-4]. Mrs. Lescalleet also discarded the entire contents of a
second, half-wet box, and she then turned the Cashmere Bouquet container over to her attorneys.
Id.
In a written opinion finding that the plaintiffs had failed to properly authenticate the
container, Judge Christopher Panos highlighted Mrs. Lescalleet’s testimony regarding not only
the reason she went searching through her basement – a water leak, or possibly questioning from
her first deposition – but also the “peculiarity surrounding Mrs. Lescalleet’s disposal of the
boxes she found within her basement.” Id. at 23-24. Judge Panos found that the totality of her
varying testimony “seriously call[ed] into question the circumstances attendant to the purported
discovery of the Lescalleet sample, as well [as] its authenticity.” Id. at 23. Judge Panos
underscored Mrs. Lescalleet’s testimony regarding turning over the container to her attorney:
“Well, I guess I was just thinking whether I wanted to give it to [her counsel] or not, because if
he tested it and it didn’t have any asbestos in it, then I wouldn’t really have a case.” Id. at 24.
28
As a result, Judge Panos stressed that “[t]he Court cannot overstate the significance of this
statement as it seriously calls into question the motivation and credibility of Mrs. Lescalleet.” Id.
at 24-25. Finally, Judge Panos noted that Mrs. Lescalleet was not the individual who purchased
the sample, that the “unscientific” circumstances of the sample’s decades-long storage remained
unclear, and that Colgate would suffer prejudice due to the spoliation of the other materials in the
box before they could be tested for common contaminants. Id. at 24-27. Accordingly, the court
excluded the sample and all “testing references arising therefrom.” Id. at 31. 11
v. Potential Contamination of the Vintage Cashmere Bouquet Containers
The record reflects two potential sources of contamination of the contents of the vintage
containers: collectors who refill vintage talc containers with new talc for display, and asbestos
from the ambient air. See Internet Forum Discussion [ECF No. 45-16]; Brody Dep. 140:17-
141:5, May 7, 2013 [ECF No. 45-33]. With respect to the possibility of third parties refilling the
vintage containers with different talc, Colgate presents the Court with an internet forum
discussion that relates to vintage glass Old Spice talcum bottles won through an eBay auction, in
which the purchaser states that he or she believes the containers will look nice refilled and
displayed in his or her home but notes the difficulty of refilling the containers with talc and
solicits help from other participants in the forum. Internet Forum Discussion [ECF No. 45-16].
Turning to ambient contamination, asbestos exists everywhere in normal background air.
Brody Dep. 140:17-141:5. Colgate’s own experts have written on the subject of asbestos in
ambient air, analyzing “3978 indoor samples from 752 buildings, representing nearly 32 man-
years of sampling” and publishing their findings. Lee, RJ, Van Orden, DR, Airborne Asbestos in
11
Judge Panos’s opinion was based on Maryland Rule 5-901, which is derived from Federal
Rule of Evidence 901.
29
Buildings, Regul. Toxicol. Pharmacol., 50:218-25 (2008) [ECF No. 57-33]. Their study of
buildings with known asbestos-containing materials did not find any anthophyllite and found
very little tremolite in the ambient air. Id. at 222. The “median building” averaged zero asbestos
fibers longer than 5 microns in ambient air. Id.
e. Analysis
i. Authenticity of Samples Purchased by Law Firms and Produced by Colgate
While an unbroken chain of custody is certainly one possible method to authenticate
evidence, under the Court’s review of the evidence in this case, the gaps in the chains of custody
for these containers go to weight rather than admissibility. As stated above, the parties do not
dispute that the vintage containers have talc in them, nor do they dispute that the containers
themselves may be authentic. Thus, the dispute is limited to whether the containers have been
refilled with different talc, or whether they contain Cashmere Bouquet, but in a contaminated
form.
Taking all of the evidence into consideration, with respect to the containers purchased by
law firms and produced by Colgate, the Court concludes that “as a matter of reasonable
probability, possibilities of . . . adulteration have been eliminated.” Mitchell, 816 F.3d at 872.
The evidence before the Court does not establish a substantial risk that these containers were
refilled with different talc. As explained above, the caps on the plastic bottles do not show any
signs of trauma to indicate that they were somehow pried off to allow the containers to be
refilled, and the intact diaphragms inside many of the round dusting powder containers suggest
that those containers had not been tampered with either. The Court also finds that the general
possibility that vintage talc container collectors have adulterated the contents of the containers is
not sufficient to exclude Dr. Gordon’s testing results for the contents of these containers. “While
Defendant is free to speculate that some unknown individual with some unknown motive might
30
have tampered with the [evidence], such speculation is simply not a basis for removing—as a
threshold issue—the matter from the consideration of the jury.” United States v. Tann, 425 F.
Supp. 2d 26, 36 (D.D.C. 2006).
The Court also finds that the possibility of ambient contamination also does not require
exclusion of Dr. Gordon’s testing results as to the contents of these containers. Colgate suggests
that the talc in the vintage containers may have been contaminated by asbestos fibers from
ambient air. But there is no evidence in the record suggesting that these containers were exposed
to increased levels of background contamination.
As the Supreme Court has concluded “[t]he sum of an evidentiary presentation may well
be greater than its constituent parts. . . . a piece of evidence, unreliable in isolation, may become
quite probative when corroborated by other evidence.” Bourjaily v. United States, 483 U.S. 171,
180 (1987). The Court finds that it was reasonable for Dr. Gordon to rely on the talc in the
containers purchased by law firms and produced by Colgate as authentic and unaltered Cashmere
Bouquet. If the evidence were “uncontradicted, a reasonable mind might—though not
necessarily would—fairly conclude favorably to the fact of [authenticity],” Tann, 425 F. Supp.
2d at 36. Accordingly, Dr. Gordon’s testimony and evidence related to his testing of the talc in
these containers will not be excluded for lack of authenticity.
ii. Authenticity of the Samples Stored at Mount Sinai School of Medicine
The Court finds that Plaintiff has failed to establish that it was reasonable for Dr. Gordon
to rely on the samples stored at the Mount Sinai School of Medicine as authentic and unaltered
Cashmere Bouquet, so Dr. Gordon’s testimony and evidence related to his testing of the contents
of these containers will be excluded for lack of authenticity. The evidence in the record
establishes that these samples were stored in an environment with other known asbestos-
31
containing materials. They were not shielded in any way from those other materials and were
even kept in the same drawers. Plaintiff has not sufficiently eliminated the possibility of
adulteration or contamination to a reasonable degree of probability, and these samples shall
therefore be excluded.
iii. Authenticity of the Kristi Lescalleet Sample
The Court agrees with Judge Panos’s findings in the Circuit Court for Baltimore City and
finds that Plaintiff has failed to make the requisite showing of authenticity for the contents of the
container discovered by Mrs. Lescalleet, so Dr. Gordon’s testimony and evidence related to his
testing of the contents of this container will be excluded for lack of authenticity. See Mem. Op.
21-22, Barlow v. Colgate-Palmolive Co., et al., Consolidated No. 24X11000783 (Cir. Ct. Balt.
City Nov. 13, 2015) [ECF No. 45-4]. Mrs. Lescalleet testified that she did not possess an
original container of Cashmere Bouquet. Id. She then claimed to have discovered one container
in her basement, but she disposed of additional nearby items that would shed light on the
provenance of the container. Id. While the container may not show obvious evidence of
tampering, Plaintiff cannot sufficiently negate the possibility of tampering or contamination in
the face of what Judge Panos described as Mrs. Lescalleet’s “serious” credibility issues. Id.Additionally, Plaintiff cannot overcome the prejudice to Colgate due to the spoliation of the
additional contents of the box in which the container was located. For these reasons, the sample
will be excluded.
IV. PLAINTIFF’S MOTION IN LIMINE
Plaintiff seeks to exclude from trial “any reference to or introduction of evidence
regarding Dr. Gordon’s alleged connection to organized crime, any alleged criminal past,
involvement in witness protection, or any statements by Dr. Gordon concerning these matters.”
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Mot. at 7 [ECF No. 55]. Colgate did not oppose this motion; however, based on the Court’s
ruling on Colgate’s Daubert Motion, the Court finds the motion is moot.
V. CONCLUSION
For the reasons set forth in this Memorandum Opinion, the Court grants Colgate’s
Daubert Motion [ECF No. 49]; grants in part and denies in part Colgate’s Motion in Limine
[ECF No. 45]; and finds as moot Plaintiff’s Motion in Limine [ECF No. 55]. An appropriate
order will accompany this Memorandum Opinion.
Thomas F. Digitally signed by
Thomas F. Hogan
August 6, 2019 Hogan Date: 2019.08.06
16:19:36 -04'00'
_________________________________
Thomas F. Hogan
SENIOR UNITED STATES DISTRICT JUDGE
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