44 Cal.App.5th 475
Cal. Ct. App.2020Background
- Plaintiff Ann Patrice Gibbons used Shower to Shower daily from 1980–2000 and Johnson’s Baby Powder 1983–1985; she was diagnosed with malignant mesothelioma in 2016.
- JJCI sourced talc during the relevant period from two Vermont mines (Hammondsville and Argonaut).
- JJCI moved for summary judgment supported by a detailed expert declaration (Dr. Matthew Sanchez) concluding, to a reasonable degree of scientific certainty, that JJCI’s talc and the Vermont source mines were asbestos‑free.
- Plaintiffs opposed without an opposing expert: their opposition consisted of voluminous JJCI documents, deposition excerpts, and a counsel declaration attaching exhibits; no verified admissions or interrogatory answers were submitted to contradict Sanchez.
- The trial court granted summary judgment, rejecting plaintiffs’ contention that the documentary record alone created a triable issue; reconsideration based on new FOIA/geological materials was denied.
- The Court of Appeal affirmed: Sanchez’s declaration shifted the burden to plaintiffs, and plaintiffs’ non‑expert evidence was insufficient to raise a triable issue that JJCI’s talc products were contaminated with asbestos.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sanchez's expert declaration was sufficient to make a prima facie showing and shift the burden to plaintiffs | Sanchez is unreliable/overruled objections; declaration insufficient to shift burden | Sanchez provided affirmative, admissible expert evidence that JJCI talc and source mines were asbestos‑free, satisfying the moving‑party prima facie showing | Held: Sanchez’s declaration was sufficient; burden shifted to plaintiffs to produce evidence of contamination |
| Whether plaintiffs’ documentary and deposition evidence (no opposing expert) created a triable issue that JJCI products contained asbestos | The company documents and depositions themselves create common‑sense inferences of contamination | Documentary evidence and counsel characterizations cannot bridge the scientific gap; expert opinion is required to link documents to product contamination | Held: Insufficient; plaintiffs needed expert evidence to rebut Sanchez and show more‑likely‑than‑not contamination |
| Whether the trial court abused its discretion by overruling plaintiffs’ evidentiary objections to parts of Sanchez’s declaration | Objections should have been sustained (foundation, hearsay, improper opinion) | The court properly admitted opinion, foundation, and reliance‑on‑literature portions; excluded paragraphs were minimal or harmless | Held: No abuse of discretion in admitting the challenged portions |
| Whether newly obtained FOIA/geological evidence at reconsideration created a triable issue | New geologist declaration and FOIA materials indicate likelihood of chrysotile/amphibole near the Vermont talc deposits | The new materials are speculative, untimely, and do not overcome Sanchez’s probative expert opinion | Held: Reconsideration denied; new materials did not raise a triable issue |
Key Cases Cited
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (2001) (establishes prima facie burden‑shifting framework for summary judgment)
- Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028 (2005) (de novo appellate review of summary judgment)
- Rutherford v. Owens‑Illinois, Inc., 16 Cal.4th 953 (1997) (two‑step test for asbestos liability: threshold exposure and substantial factor causation)
- Lyons v. Colgate‑Palmolive Co., 16 Cal.App.5th 463 (2017) (plaintiff’s unobjected‑to expert testimony that talc contained asbestos can create triable issue)
- Berg v. Colgate‑Palmolive Co., 42 Cal.App.5th 630 (2019) (expert opinion based on mere possibility insufficient to defeat summary judgment)
- McGonnell v. Kaiser Gypsum Co., 98 Cal.App.4th 1098 (2002) (failure to prove exposure defeats causation; speculation by expert is inadequate)