69 Cal.App.5th 34
Cal. Ct. App.2021Background
- Douglas Strobel used Johnson & Johnson Baby Powder (JBP) regularly from infancy (1951) through 2014 and was diagnosed with malignant mesothelioma in 2019; his wife Jo Ann Strobel is the appellant for loss of consortium after his death.
- Strobel sued J&J for product liability, negligence and fraud, alleging asbestos in JBP was a substantial contributing cause of his mesothelioma.
- J&J moved for summary judgment relying on Dr. Matthew Sanchez’s declaration that JBP was asbestos-free; trial court granted summary judgment, finding plaintiffs lacked admissible evidence of legal causation.
- Plaintiffs submitted geologists/asbestos-testing experts (Drs. Fitzgerald and Compton) reporting asbestos in J&J source talc ore and some archival product testing; other experts (Cohen, Finkelstein, Ay) opined on medical causation and absence of alternate exposures.
- The trial court excluded much of plaintiffs’ expert reliance on third‑party testing (notably results attributed to Dr. Longo) as inadmissible case‑specific hearsay under People v. Sanchez and ruled remaining evidence insufficient to create a triable issue; the Court of Appeal reversed in part.
- On appeal the court: (1) held plaintiffs had sufficient admissible evidence to raise a triable issue of legal causation, (2) agreed some expert reliance on case‑specific third‑party conclusions was inadmissible, and (3) affirmed exclusion of non‑geology experts’ geology-based opinions but preserved their ability to testify within expertise or on hypotheticals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal causation: Was there admissible evidence that JBP contained asbestos during Strobel’s exposure period? | Long‑term, frequent use + expert testing of source ore and archival studies permit inference that JBP contained asbestos and was a substantial factor. | No direct, admissible proof of asbestos in JBP sold during exposure years; Sanchez evidence excluded collapse plaintiffs’ proof. | Reversed summary judgment: circumstantial and admissible background evidence (ore contamination, published studies, archival testing) create a triable issue. |
| Admissibility of expert testimony relying on third‑party testing (e.g., Dr. Longo) under People v. Sanchez | Experts may rely on generally accepted third‑party sources; some third‑party testing is background admissible. | Specific quantitative results from an absent tester (Longo) are case‑specific hearsay and must be excluded. | Court: Fitzgerald’s recounting of Longo’s specific sample counts/opinions was inadmissible case‑specific hearsay; but not all third‑party materials Fitzgerald used are excluded—many are admissible background. |
| Standard of review for trial court evidentiary rulings on summary judgment | De novo review is appropriate for paper records. | Abuse of discretion should govern evidentiary rulings. | Applied de novo review here because the exclusion rested on legal application of Sanchez. |
| Competence of non‑geology experts (Cohen, Finkelstein, Ay) to testify about asbestos in JBP | They may opine on causation and rely on geology findings; can testify via hypotheticals. | They lack qualifications in geology/mineralogy and cannot present case‑specific geological conclusions. | Trial court properly excluded their geology/mineralogy-based testimony; they may testify within their specialties or on properly‑framed hypotheticals. |
Key Cases Cited
- People v. Sanchez, 63 Cal.4th 665 (clarified admissibility of expert reliance on hearsay; distinguishes background knowledge from case‑specific hearsay)
- People v. Veamatahau, 9 Cal.5th 16 (explains when experts may convey background hearsay relied on in forming opinions)
- People v. Valencia, 11 Cal.5th 818 (limits expert testimony that supplies unproven case‑specific facts; applies Sanchez to exclude such hearsay)
- Lyons v. Colgate‑Palmolive Co., 16 Cal.App.5th 463 (reversed summary judgment where ore contamination plus long‑term use supported reasonable inference of contaminated retail product)
- Berg v. Colgate‑Palmolive Co., 42 Cal.App.5th 630 (affirmed summary judgment where short‑term use and weak linkage to product vintage left only a possibility of exposure)
- Rutherford v. Owens‑Illinois, Inc., 16 Cal.4th 953 (legal causation and threshold exposure standards in asbestos latent‑injury cases)
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (limits on court gatekeeping for expert opinion; requires logical bridge between data and opinion)