Bader v. Johnson & Johnson
| Decision Date | 23 December 2022 |
| Docket Number | A158868 |
| Parties | Susan Jean BADER, as Representative, etc., Plaintiff and Respondent, v. JOHNSON & JOHNSON, et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
Orrick, Herrington & Sutcliffe, Naomi J. Scotten, Robert M. Loeb, Upnit K. Bhatti, Jeffrey T. Quilici ; King & Spalding, Alexander G. Calfo, Paul R. Johnson, Susan V. Vargas, Los Angeles, for Defendants and Appellants Johnson & Johnson and Johnson & Johnson Consumer, Inc.
Wilson Sonsini Goodrich & Rosati, Fred A. Rowley, Jr., Los Angeles; Munger, Tolles & Olson, Jeffrey Y. Wu, Matthew K. Donohue, Anne K. Conley, Maggie Thompson, Los Angeles; Foley & Mansfield, Gary D. Sharp, Peter M. Mularczyk, Monrovia; Cravath, Swaine & Moore, Darin McAtee for Defendants and Appellants Colgate-Palmolive Company.
Kazan, McClain, Satterley & Greenwood, Joseph D. Satterley, Denyse F. Clancy, Ian A. Rivamonte, Michael T. Stewart, Oakland, for Defendant and Respondent.
Patricia Schmitz asserted causes of action for strict products liability, negligence, and fraud against defendants, alleging that their cosmetic talc products were contaminated with asbestos and that her exposure thereto caused her mesothelioma
.1 A jury returned a special verdict in plaintiff's favor.
In this appeal, defendants Johnson & Johnson and Johnson & Johnson Consumer, Inc. (collectively, J&J) argue: (1) the trial court abused its discretion by admitting certain expert testimony; (2) the trial court gave an adverse inference instruction that was unjustified and prejudicial; (3) the trial court erred when it failed to grant a mistrial after certain references to talc causing ovarian cancer
; (4) the trial court failed to instruct the jury on a critical element of fraudulent concealment; and (5) the trial court erred in entering judgment nunc pro tunc.
Defendant Colgate-Palmolive Company (Colgate) argues: (1) the trial court abused its discretion by admitting certain expert testimony; (2) the jury instructions on causation were erroneous; (3) the evidence was insufficient to support a verdict against Colgate for fraudulent concealment; and (4) the trial court erred in entering judgment nunc pro tunc.
We affirm.
When Schmitz was a child, she applied J&J's Baby Powder (JBP) to her siblings, and she herself used it from ages 11 to 13. She later applied JBP to her aging father and mother when she cared for them. Schmitz began using Colgate's Cashmere Bouquet on a daily basis from the age of 13 until her late forties.2 When she applied Cashmere Bouquet and JBP, they created visible dust that she breathed in. Schmitz also used perfumed talc sold by Avon.
Schmitz was diagnosed with mesothelioma
in the summer of 2018. She filed suit against ten defendants, including J&J, Colgate, Avon, and many talc suppliers, alleging that defendants knowingly concealed the presence of asbestos in their products and the health risks the products posed.
"Asbestos" generally refers to a group of six minerals—chrysotile, and the five amphiboles of amosite, crocidolite, tremolite, anthophyllite, and actinolite—that, when occurring in an "asbestiform habit," are subject to government regulation.3 Other minerals, such as talc, can form in asbestiform habit but are not regulated as asbestos.
The trial involved a variety of disputed issues, including whether the experts correctly identified various structures as asbestos, whether the talc products Schmitz used contained asbestos, and, if so, whether that use substantially contributed to her risk of developing mesothelioma
. As discussed post , there was conflicting evidence regarding whether only the six asbestos minerals formed in asbestiform habit are capable of causing mesothelioma, and whether a threshold level of asbestos exposure is required before the risk of mesothelioma increases.
William Longo, Ph.D., who was qualified as an expert in material science, forensic engineering, and asbestos testing and exposure, testified for plaintiff regarding his testing of Cashmere Bouquet and JBP samples. Dr. Longo followed "counting rules" from various analytical methods for microscopy in his testing, and these rules govern what constitutes a regulated asbestos structure. Dr. Longo explained that his laboratory tested 57 container samples and 15 railroad car samples of JBP that were obtained from J&J's historical museum. He found asbestos in 68 percent of these museum samples. He also tested two sets of Cashmere Bouquet samples—one set of 38 provided by various plaintiffs’ attorneys, and one set of 20 provided by Colgate's hired defense laboratory. He found asbestos in 30 of 38 of the first set, and in 20 of 20 of the second set. He characterized the amounts of asbestos found in cosmetic talc as trace amounts.
Along with Dr. Longo, plaintiff's microscopy expert Lee Poye tested 16 J&J Shower to Shower samples from the 1970s, 1980s, and 1990s that were produced by J&J's attorneys. He detected asbestos in 11 of the 16 samples. Dr. Longo testified that J&J sourced its talc from Vermont mines for the Shower to Shower product for many years, including in the 1970s.
Pathologist Dr. Jerrold Abraham testified that there is a dose-response concept for mesothelioma
such that every asbestos exposure increases a person's risk of getting the disease. He opined that all of Schmitz's exposures contributed to increase the risk, and that there is no known safe level of asbestos exposure. According to Dr. Abraham, people who have had very low or brief exposures are at increased risk of developing mesothelioma.
Dr. Allan Smith, an epidemiologist, testified that the higher the level of asbestos inhalation, the greater the risk of getting mesothelioma
, and there is no minimum safe level of exposure to asbestos. If a patient has mesothelioma caused by asbestos, then all the asbestos dust that patient inhaled over the years was a significant factor increasing the risk of getting cancer. Asked to assume that Schmitz was exposed to JBP up until she was 13, used Cashmere Bouquet for years, and that these products contained asbestos, Dr. Smith opined that Schmitz's mesothelioma was caused by inhalation of asbestos dust over many years. In his view, "Any part of the causal dose is important and meaningful and could be described, then, as a substantial factor."
Dr. Barry Horn, a lung specialist and critical care doctor, testified that mesothelioma
is a dose-dependent disease, and the more chemical carcinogen exposure, the greater one's likelihood of developing cancer. He was asked to assume that Schmitz used JBP on herself and her sisters, her family used JBP, she was around the dusty product, she used Cashmere Bouquet for about 30 years, she used some Avon product, and those products contained trace amounts of asbestos. He testified that each of her exposures contributed to the risk of getting mesothelioma.
Dr. Egilman, an occupational and preventive medicine physician and epidemiologist, opined that Schmitz suffered from malignant pleural mesothelioma
caused by inhaling asbestos and fibrous talc when she used a variety of cosmetic talc products over her life. He testified that Cashmere Bouquet and JBP historically contained asbestos. With little explanation, he testified that he calculated that Schmitz inhaled between 42 and 61 billion asbestos fibers over her lifetime from the talc products, which was over the allowable OSHA 7 billion fiber lifetime limit for workers, and a significant factor in causing Schmitz's mesothelioma. He stated the amount of asbestos it takes to cause cancer is "really, really low," and there is no known safe level of exposure. He testified that exposure below threshold limit values does not mean you would not expect to see cancer, and the OSHA threshold produces excess mesotheliomas
for workers even though they are taught to minimize dust exposure. He also opined that both fibrous talc and cleavage fragments can cause mesothelioma.
For the defense, Dr. Matthew Sanchez, an expert in minerology, testified that one would not expect to find asbestos in the Italian, North Carolina, or Montana mines that had been used as a talc source for Cashmere Bouquet. He tested Italian talc from the Val Germanasca mines used by both Colgate and J&J as sources of cosmetic talc, and he found no asbestos. He found no asbestos in the talc he tested from the Vermont and Chinese talc mines used for JBP. He found no asbestos in the Cashmere Bouquet samples that he tested. For JBP, he found asbestos in one sample in the first set of 30 samples that he and Dr. Longo tested, but he concluded this sample was contaminated with other materials based on its unusual content. The remaining set of JBP museum samples did not contain asbestos. Based on his expertise and testing, he opined that JBP does not contain asbestos.
Dr. Sanchez discussed asbestos testing techniques, and he explained that x-ray diffraction (XRD) is used to identify the type of mineral. Polarized light microscopy
(PLM) allows identification of the gross morphology—i.e., what the particle shapes and sizes are, and transmission electron microscopy (TEM) ( Strobel , supra , 70 Cal.App.5th at p. 806, 284 Cal.Rptr.3d 165 ), allows for identification of smaller particles using a higher magnification. Dr. Sanchez believed that, generally, single particles in a talc powder sample are not sufficient to draw meaningful conclusions about the growth habit in which the particle formed. He opined that Dr. Longo had misidentified some of the minerals present and continually reported asbestos in JBP and Cashmere Bouquet where he was looking at common cleavage fragments.
Pulmonologist Dr. David Weill conceded that asbestos causes pleural mesothelioma
but testified that there must be a sufficient dose of exposure, and there is no evidence that exposure to background levels of asbestos elevates the...
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50-State Survey of State Court Decisions Supporting Expert-Related Judicial Gatekeeping
...Indeed, the trial court has the “duty to act as a ‘gatekeeper’ to exclude speculative expert testimony.” Bader v. Johnson & Johnson, 303 Cal. Rptr.3d 162, 174 (Cal. App. 2022) (citations omitted). “[A] court may inquire into, not only the type of material on which an expert relies, but also......