Strobel v. Johnson & Johnson
| Citation | 284 Cal.Rptr.3d 165,70 Cal.App.5th 796 |
| Decision Date | 21 September 2021 |
| Docket Number | A159609 |
| Parties | Jo Ann STROBEL, Plaintiff and Appellant, v. JOHNSON & JOHNSON et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
Brayton Purcell, Gilbert L. Purcell, Richard M. Grant, Novato, Steven J. Patti, Sausalito, Christine A. Renken, Novato, for Plaintiff and Appellant.
King & Spalding, Paul R. Johnson, Alexander G. Calfo, Susan V. Vargas, Stacy L. Foster, Los Angeles; Orrick Herrington & Sutcliffe, Robert M. Loeb, pro hac vice, Nathan Dullum, for Defendants and Respondents.
STREETER, Acting P. J. Douglas Strobel was diagnosed with malignant mesothelioma
in February 2019 and passed away at age 68 in April 2020, during the pendency of this appeal. Before his death, Strobel sued Johnson & Johnson and Johnson & Johnson Consumer Inc. (collectively, J&J) for damages under product liability, negligence and fraud theories, alleging that continuous exposure to asbestos in J&J's Baby Powder (JBP), a product he used regularly for some sixty years, was a substantial contributing cause of his mesothelioma. Strobel's wife, Jo Ann, a coplaintiff who substituted in after his death as successor-in-interest to the claims he filed, also seeks recovery for loss of consortium.
The trial court granted summary judgment for J&J. Pointing to declarations of J&J's experts, Matthew Sanchez, who swore that JBP was at all relevant times asbestos-free, and Suresh Moolgavkar, who opined that there is no credible scientific evidence that even high-level exposure to cosmetic talc increases the risk of mesothelioma
, the court ruled that the Strobels failed to present evidence creating a triable issue of legal causation. The Strobels filed declarations from five experts, Sean Fitzgerald, Steven Compton, Murray Finkelstein, Richard Cohen, and Charles Ay, all contradicting J&J's experts on this point.
The court sustained J&J's hearsay objections to much of the Strobels’ proffered expert testimony under People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ) and for lack of foundation. It then concluded that, after the exclusion of this testimony, the Strobels could not bear their burden of proof on legal causation because what was left—the opinions from Fitzgerald and Compton—only confirmed the presence of asbestos in the talcum ore J&J used to manufacture JBP, not in JBP offered for sale as a finished product during the years Doug Strobel used it. Without relying on case-specific hearsay about which these experts had no personal knowledge, the court ruled, they could only speculate about the presence of asbestos in JBP during the exposure period.
This appeal followed the entry of judgment for J&J. We now reverse.
Starting shortly after his birth in 1951, Doug Strobel's mother regularly used JBP when diapering him as an infant. As a young boy, Doug developed what would become a lifelong habit of applying JBP on himself, coating his feet in it and dumping it in his shoes after little league baseball practice to reduce odor. When he applied JBP to his feet in this way, a cloud of it would arise around him. Doug continued this habit as he grew older, applying JBP to his feet two to three times a week for nearly six decades, until 2014. Every two months or so, his wife, Jo Ann, routinely bought containers of JBP for Doug's use, as his mother had done when he was a boy. One of the Strobels’ experts testified that, over the course of his lifetime, Doug Strobel used at least 338 containers of JBP. While none of this is disputed, whether asbestos was present in JBP during the six-decade exposure period is a matter of sharp dispute.
The Strobels were unable to produce any containers of the JBP that Doug Strobel actually used or to arrange for testing of the contents of those containers, since all of them were consumed years ago. But the Strobels did make a showing that, over the course of Doug Strobel's lifetime, he was not exposed to asbestos from any source other than JBP.1 Generally speaking, the proof bearing on whether JBP contained asbestos during the period 1951 through 2014 fell into two categories. First, there were opinions from physicians specializing in asbestos-related diseases who considered Doug Strobel's lifetime habit of using JBP and addressed whether it was a likely cause of his mesothelioma
(Drs. Cohen and Finkelstein for the Strobels and Dr. Moolgavkar for J&J2 ). Second, there was evidence from geologists and asbestos detection experts who conducted geological and mineralogical analyses, using microscopic examinations and other techniques to test for the presence of asbestos in JBP milled as a finished product and in the source talc ore used to manufacture it (for the Strobels, Dr. Compton [source ore only] and Mr. Fitzgerald [source ore and milled JBP], and for J&J, Dr. Sanchez [source ore and milled JBP]3 ).
Among all the physicians who submitted declarations for and against summary judgment, it was undisputed that mesothelioma
is a signal tumor that is often associated with exposure to asbestos. Dr. Cohen opined without contradiction that inhaled asbestos fibers can become lodged in the lungs or the pleural cavity around the lungs, and that when the body is unable to expel these fibers through its natural immune response, they may cause genetic damage at the cellular level, ultimately causing mesothelioma. Dr. Cohen further opined, here too without contradiction, that there may be a long latency period between exposure to asbestos and the development of asbestos-related diseases (10–50 years is "normal"); that "mesothelioma is a very low dose disease, with no known minimum threshold of exposure to asbestos below which there is no risk"; and that the chance of disease developing from exposure to asbestos is "proportional to" cumulative dosage over time.
, like all cancers, can develop spontaneously, that mesothelioma may be triggered by any number of carcinogens commonly found in today's environment, and that the risk of contracting mesothelioma is strongly correlated with a person's age.
The principal difference between the physician experts was this. The Strobels’ physicians gave weight to the opinions of Drs. Fitzgerald and Compton, who each attested that consumer powders made from talc produced from the mining regions where J&J obtained talc contained asbestos, while Dr. Moolgavkar did not, giving weight instead to the likelihood of other potential asbestos exposure sources and general risks that anyone may face in developing mesothelioma
. The Strobels’ physicians cited the extensive literature relating to the geology and mineralogy of asbestos, discussed testing methodologies for detecting asbestos, and used statistical analysis—extrapolating from the frequency and incidence of positive asbestos findings in the tests undertaken by others—to opine on the percentage likelihood that asbestos would be present in any given container of JBP during the time Doug Strobel used it. But because none of the physicians actually conducted any tests for the presence of asbestos in JBP or in the talc ore used to manufacture JBP, the testimony of the geologists and asbestos testing experts had dispositive significance in the trial court's analysis.
As further explained below, the trial court ruled that Dr. Compton's and Mr. Fitzgerald's declarations, to the extent they infer the presence of asbestos in milled, finished talcum powder from nothing more than positive tests for asbestos in raw talc ore used to manufacture it, are legally insufficient to create a triable issue of fact under applicable principles of causation. And to the extent Mr. Fitzgerald's declaration went beyond that, opining that asbestos was present in JBP itself during the exposure period, the court ruled that his opinion constituted inadmissible case-specific hearsay under Sanchez , supra , 63 Cal.4th at pages 684–686, 204 Cal.Rptr.3d 102, 374 P.3d 320, which in effect left the opinions of Dr. Sanchez and Dr. Moolgavkar unrebutted.
To frame the issues that divided the opposing experts in this case in a more specific way, we pause for a brief tour through the science that undergirds their opinions. Much of that science is undisputed. Talcum, or "talc" as the parties refer to it in shorthand, is a hydrated magnesium silicate mineral. One of the softest minerals on earth, at the far end of a spectrum opposite to, say, diamond, talc is used in a wide variety of commercial applications ranging from pharmaceuticals and cosmetics to ceramics, paints, paper, and asphalt roofing. Talcum powder, a talc-based cosmetic product, is manufactured by a milling process in which large pieces of talc ore are crushed and pulverized...
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