Court Dismisses Product Case Based on Failure to Offer Expert Testimony

Written on Friday, February 7th, 2020 by T.C. Kelly
Filed under: Business Development for Experts, Expert Opinions

Johnson & Johnson has won and lost cases alleging that it markets talc-based products, including baby powder, that cause cancer. The lawsuits typically rely on expert evidence that the talc used to manufacture those products is contaminated with asbestos, a known carcinogen.

The company insists that nothing in its products is carcinogenic, a claim that was undermined by the FDA’s recent confirmation of asbestos in a bottle of J&J baby powder purchased online. That testing prompted J&J to recall a single lot of its baby powder. The testing also triggered a vigorous effort by J&J to discredit the FDA’s findings. The FDA stands behind its test results.

Relying largely on documents produced by J&J, Ann Gibbons contended that she was exposed to asbestos when she used Shower-to-Shower and Johnson’s Baby Powder. Gibbons developed mesothelioma. Asbestos exposure is the only known cause of that disease. J&J contends that her husband worked in construction and that he may have exposed her to asbestos fibers as a result of his employment.

Gibbons sued J&J for causing her mesothelioma. The California Court of Appeals affirmed a trial court decision to grant summary judgment in J&J’s favor. The question on appeal was whether Gibbons’ failure to present expert evidence was fatal to her claim.

J&J Documents

The company’s credibility has been damaged by stunning evidence that it knew for decades about the risks posed by talc contamination, but hid that information from regulators and the public. Reuters also uncovered evidence that J&J funded research that was designed to discount the risk of asbestos contamination in its products, while carefully avoiding research that might have documented asbestos contamination.

Nobody claims that every bottle of talc-based products is contaminated by asbestos, but tests showing some bottles from a particular lot to be uncontaminated do not mean that other bottles are free of asbestos contamination. Unfortunately, only a small fraction of marketed products containing talc are ever tested for asbestos contamination.

J&J’s Expert

Ann Gibbons used Shower-to-Shower and Johnson’s Baby Powder for two decades. She sued Johnson & Johnson on the theory that those products caused her mesothelioma.

J&J moved for summary judgment. It submitted an expert opinion that its products were free from asbestos contamination and for that reason could not have caused her disease.

J&J’s expert, Matthew Sanchez, is a geologist. His declaration described his expertise in testing talc and identifying asbestos. He suggested that some minerals are easily misidentified as asbestos. Based on his review of J&J’s testing and various other research, he concluded that the talc sourced from the Vermont mines that produced the products used by Gibbons were asbestos-free. He also concluded that the geology of the mines was “not favorable for the formation of asbestos.”

Gibbons’ Opposition to Summary Judgment

Gibbons presented no expert testimony to counter Sanchez. Since experts have testified in successful lawsuits that allege contamination of J&J products by asbestos, the failure to use expert testimony in Gibbons’ case is surprising.

Gibbons instead relied solely on the declaration of her lawyer, who attached hundreds of pages of exhibits. Most of the exhibits were documents created by J&J. Some of the documents addressed asbestos in different mines or were created before Gibbons began using J&J talc products.

Gibbons made no challenge to Sanchez’ qualifications. Nor, for the most part, did she challenge the methodology that supported his opinions.

Trial Court Ruling

Sanchez’ opinion that the talc products used by Gibbons were not contaminated by asbestos created a defense to Gibbons’ lawsuit. The trial court concluded that Gibbons could not overcome that defense because she failed to challenge Sanchez’ opinion with expert testimony.

The trial court concluded that documents alone would not allow a jury to draw an inference that Gibbons used J&J products that were contaminated by asbestos. At the very least, an expert was needed to interpret the documents and to explain why they supported her claim and refuted Sanchez’ opinion.

Gibbons moved for reconsideration. In support of that motion, she offered new evidence of a geologist who reviewed recently acquired data from the U.S. Geological Survey. The geologist concluded that asbestos was likely present in the Vermont mines. The trial court denied the motion and granted summary judgment to J&J.

Appellate Court Ruling

The California Court of Appeals rejected Gibbons’ argument that Sanchez relied on inadmissible hearsay. While a party cannot rely on hearsay to prove its case, an expert can identify the source of the expert’s opinion, even if that source is hearsay. A party cannot have an expert quote hearsay documents in order to defeat the hearsay rule, but Sanchez merely identified the documents that provided a basis for his opinion.

Under California law, when a party makes a prima facie showing that no facts supporting a judgment are in dispute, the burden shifts to the opposing party to present evidence showing that material facts are disputed. The Sanchez declaration was sufficient to shift the burden, since his opinion that J&J’s products were asbestos-free would, if uncontradicted by other evidence, entitle J&J to summary judgment.

With the ball in her court, Gibbons was required to introduce evidence that her use of J&J products exposed her to asbestos and that the exposure caused her mesothelioma. The fact that she has mesothelioma is strong evidence that she was exposed to asbestos, and her testimony was sufficient to establish her use of J&J products containing talc.

Whether J&J’s products were contaminated with asbestos, on the other hand, could not be proved without expert testimony. Unlike products that are intentionally manufactured with asbestos, J&J’s products are not formulated to include asbestos. While talc and asbestos deposits are often found in proximity, talc is not inevitably contaminated with asbestos whenever it is mined.

The court cited an appellate decision that reversed summary judgment for a cosmetic company because the plaintiff presented expert evidence that its talcum powder contained asbestos. While the company offered expert evidence that its product was asbestos-free, an expert geologist confirmed the presence of asbestos in the mines that produced the company’s talc and in the products themselves. Gibbons relied on no comparable expert testimony

While Gibbons relied on documents produced by J&J that arguably support her position, the appellate court determined that those documents are “highly technical.” Without expert assistance, a jury could not be expected to understand the significance of findings that might support her case or to place those findings in context. Accordingly, in the absence of expert evidence to dispute Sanchez’ expert opinions, Gibbons could not meet her burden of proving that she used J&J products that were contaminated with asbestos. Summary judgment for J&J was therefore affirmed.


About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.