86 Cal.App.5th 1094
Cal. Ct. App.2022Background
- Patricia Schmitz (deceased; personal representative Susan Bader) used J&J Baby Powder and Colgate Cashmere Bouquet for years and developed pleural mesothelioma; she sued J&J, Colgate, Avon and talc suppliers; a jury returned a verdict for plaintiff awarding $12,003,006 and allocating fault among defendants.
- Core factual disputes: whether cosmetic talc samples contained regulated asbestiform asbestos (vs. non‑asbestiform cleavage fragments), conflicting microscopy and lab results (plaintiff experts Drs. Longo & Poye vs. defense Dr. Sanchez), and whether trace contamination can cause mesothelioma.
- Causation dispute: plaintiff’s experts (including Dr. Egilman) opined fibrous/asbestiform talc (or cleavage fragments) can cause mesothelioma and that no safe exposure level exists; defense experts disputed both the presence of asbestos in products and the causal link at low exposures.
- Trial rulings at issue: admission of several experts’ opinions (including Dr. Egilman’s fibrous‑talc theory and Dr. Longo’s testing/exposure extrapolations), denial of a mistrial over references to ovarian cancer, granting an adverse‑inference (spoliation) instruction, and specific jury instructions applying a Rutherford causation formulation.
- Appeal arguments: defendants challenged expert admissibility (Sargon/Kelly grounds), sample chain‑of‑custody/authentication, analytical gaps in exposure opinions, the use/extension of Rutherford causation language, denial of mistrial, concealment instruction content (transactional relationship), and nunc pro tunc entry of pain‑and‑suffering damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Egilman’s opinion that fibrous/asbestiform talc causes mesothelioma | Dr. Egilman relied on IARC materials, animal studies, case reports and mechanistic reasoning; admissible under Evidence Code §§801–802 and Sargon gatekeeping | No reliable scientific foundation; theory novel/speculative and should be excluded under Sargon (and could have been Kelly challenge) | Court affirmed admission: record (IARC monographs, studies) provided a reasonable basis; any error harmless because similar causation evidence was before jury. |
| Authentication / chain of custody for 38 vintage Cashmere Bouquet samples tested by Dr. Longo | Samples, many unopened, and corroborating historical documents support reliability | 38 samples from third parties insufficiently authenticated; testing results should be excluded | Court denied exclusion; even if error, not reversible because 20 defense‑lab samples (uncontested) and historical evidence corroborated results; no prejudice shown. |
| Exposure extrapolations (Dr. Longo, Dr. Egilman) from bulk testing to airborne exposure and lifetime fiber dose | Experts relied on their testing, historical documents, published studies and established methodologies (Lyons, Strobel support inference) | Extrapolation lacks statistical/scientific basis; analytical gap under Sargon means opinions should be excluded | Court upheld admission: trial court acted within discretion; Lyons and Strobel support drawing inferences from testing + history; any error was harmless in light of other testimony. |
| Use/extension of Rutherford causation instruction ("substantial factor contributing to the risk") | Plaintiff: Rutherford standard applies where proving particular fiber causation is medically impossible; extended to fibrous‑talc theory and complex toxic causation | Colgate: Rutherford applies only to established asbestos causation, not to a fibrous‑talc theory | Court held Rutherford rationale properly extended here: the same irreducible uncertainty about which fiber caused cancer exists with fibrous talc, so the refined instruction was appropriate. |
| Motion for mistrial based on deposition excerpts referencing ovarian cancer | Plaintiff: references were relevant to notice and defendant knowledge; court limited ovarian‑cancer references earlier | J&J: brief references were highly prejudicial and required mistrial | Denied: court found references de minimis, J&J delayed seeking correction, and curative measures/instruction sufficient; no abuse of discretion. |
| Adverse‑inference (spoliation) instruction | Plaintiff: evidence supported instruction — destruction/suppression of materials relevant to asbestos testing/links | J&J: no willful suppression; instruction unsupported and prejudicial | Court found sufficient evidence to give the instruction; in any event defendants failed to show a reasonable probability of prejudice given abundant independent evidence of asbestos in talc. |
| Concealment instruction — transactional‑relationship element (Bigler‑Engler) | Plaintiff: instruction given adequately required advertising/purchase link; sufficient evidence Schmitz had direct exposure and J&J sold to consumers | J&J: court should have instructed that fraudulent concealment requires a transaction/direct dealings; absence of evidence would mandate defense | Even if omission was error, no prejudice: undisputed evidence showed direct consumer sales and Schmitz’s household use, so verdict would not likely change. |
| Nunc pro tunc entry of pain & suffering damages (Code Civ. Proc. §377.34) | Plaintiff: award for pre‑death pain & suffering permitted because case had preferential filing before Jan 1, 2022 | Defendants: entry of judgment nunc pro tunc improper under section 377.34(a) limiting pre‑death damages | Court ruled statutory amendment §377.34(b) (effective Jan 1, 2022) covered this case and mooted challenge; damages entry upheld. |
Key Cases Cited
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (Cal. 2012) (trial court gatekeeping role under Evidence Code §§801–802; exclude speculative expert opinion)
- Rutherford v. Owens‑Illinois, Inc., 16 Cal.4th 953 (Cal. 1997) (refined causation standard for asbestos‑related cancer: plaintiff may prove exposure was a substantial factor in contributing to risk)
- Bockrath v. Aldrich Chemical Co., 21 Cal.4th 71 (Cal. 1999) (discussion of medical‑probability standard in toxic tort pleading/causation contexts)
- Lyons v. Colgate‑Palmolive Co., 16 Cal.App.5th 463 (Cal. Ct. App. 2017) (expert may infer product contamination for plaintiff’s vintage product use from mine/product testing and historical evidence)
- Strobel v. Johnson & Johnson, 70 Cal.App.5th 796 (Cal. Ct. App. 2021) (triable issue where historical testing and samples support inference JBP contained asbestos)
- Bigler‑Engler v. Breg, Inc., 7 Cal.App.5th 276 (Cal. Ct. App. 2017) (fraudulent concealment requires a factual basis for a transactional relationship to create a duty to disclose)
- Soule v. General Motors Corp., 8 Cal.4th 548 (Cal. 1994) (standards for harmless error and assessing prejudice on evidentiary/instructional error)
- People v. Kelly, 17 Cal.3d 24 (Cal. 1976) (framework for admissibility of novel scientific techniques; discussed by concurrence as a distinct challenge from Sargon)