16 Cal. App. 5th 463
Cal. Ct. App. 5th2017Background
- Mary Lyons sued Colgate-Palmolive alleging mesothelioma caused by long-term use (early 1950s–early 1970s) of Colgate’s Cashmere Bouquet talcum powder; diagnosed October 2015.
- Lyons and a family witness identified the product (a pink tin labeled Cashmere Bouquet) and testified to nearly daily personal use for ~20 years; no original containers survived.
- Colgate conceded it sourced talc from three locations (Italy Val Chisone, Willow Creek MT, Regal NC); it submitted expert evidence asserting Cashmere Bouquet was asbestos-free.
- Lyons produced extensive expert evidence (SEAN FITZGERALD) and exhibits asserting talc from all three sources and multiple Cashmere Bouquet samples contained asbestos (chrysotile, anthophyllite, tremolite) and that use would generate airborne asbestos exposures.
- Trial court granted Colgate’s summary judgment; its tentative ruling lacked the required detailed written findings under Code Civ. Proc. § 437c(g); Lyons’ motion for reconsideration with additional expert support was denied as untimely.
- Court of Appeal found Fitzgerald’s declaration and supporting materials created a triable issue that Cashmere Bouquet contained asbestos and that summary judgment was improper; judgment reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper on exposure/identification of defendant’s asbestos-containing product | Lyons argued her product-identification testimony plus expert testing and geological evidence created a triable issue that Cashmere Bouquet contained asbestos and caused her exposure | Colgate argued plaintiff produced no tested container she actually used and offered only possibilities; Colgate’s experts said product was asbestos-free | Court held Lyons produced sufficient circumstantial and expert evidence to create a triable issue; summary judgment should not have been granted |
| Whether defendant met its initial burden to negate plaintiff’s claim at summary judgment | Lyons contended even if Colgate submitted evidence denying asbestos, that did not eliminate triable factual disputes | Colgate said its experts conclusively showed Cashmere Bouquet did not contain asbestos, shifting burden to Lyons | Court assumed Colgate met burden but found Lyons’ evidence nevertheless created a triable issue, so summary judgment improper |
| Admissibility/foundation of plaintiff’s expert evidence at summary judgment | Lyons maintained Fitzgerald’s credentials, testing, and exhibits provided adequate foundation and that defendant’s written objections were waived when not raised at hearing | Colgate asserted plaintiffs’ experts lacked proper foundation and prior testimony undermined them | Court noted Colgate waived many objections by not arguing them at hearing; foundation problems not shown on record and Fitzgerald’s declaration was sufficiently supported to create a triable issue |
| Compliance with CCP § 437c(g) re: written ruling | Lyons argued the trial court’s tentative ruling and form judgment failed to comply with statutory requirement to state specific reasons and refer to evidence | Colgate relied on the court’s adopted form judgment and cited precedent it claimed supported summary judgment | Court found the tentative ruling and signed judgment did not satisfy § 437c(g) and reversed because triable issues existed |
Key Cases Cited
- Maxwell v. Colburn, 105 Cal.App.3d 180 (discusses reasonable inferences from circumstantial evidence at summary judgment)
- Collin v. CalPortland Co., 228 Cal.App.4th 582 (distinguishable; holding where product identification was unreliable summary judgment appropriate)
- Whitmire v. Ingersoll-Rand Co., 184 Cal.App.4th 1078 (insufficient evidence that specific insulation contained asbestos or that decedent was exposed to it)
- McGonnell v. Kaiser Gypsum Co., 98 Cal.App.4th 1098 (speculation insufficient to create triable issue as to product source and asbestos content)
- Casey v. Perini Corp., 206 Cal.App.4th 1222 (plaintiff lacked evidence that challenged jobsites or materials contained asbestos)
- Miranda v. Bomel Constr. Co., Inc., 187 Cal.App.4th 1326 (requires evidence linking alleged source to plaintiff’s exposure; otherwise only speculation)
- Reid v. Google, Inc., 50 Cal.4th 512 (procedural rule: evidentiary objections not raised at hearing are waived)