LOS ANGELES – The California Court of Appeals for the 2nd Appellate District upheld a ruling by the Superior Court of Los Angeles County awarding summary judgment to Johnson & Johnson in a lawsuit in which a woman claimed the company’s baby powder caused her to develop mesothelioma.
"Appellants did not present expert testimony to counter the opinion by respondent’s (J&J’s) expert,” Judge Kim Dunning wrote in the Jan. 22 opinion. Dunning is a retired judge from the Orange Superior Court who has been assigned to the case.
Appellants Ann Gibbons and James Gibbons alleged that a Johnson & Johnson talc powder product for adults called Shower to Shower used by Ann Gibbons over a period of two decades caused her to develop mesothelioma, a deadly cancer of the lungs.
Johnson & Johnson Consumer Inc. moved for summary judgment on the basis of its expert’s conclusion that, to a reasonable degree of scientific certainty, Johnson & Johnson's talcum powder did not contain asbestos, the brief stated.
Gibbons was diagnosed with malignant mesothelioma in July 2016. She and her current spouse initiated the lawsuit in December of that year.
She alleged product liability, negligence, false representation, intentional failure to warn and concealment against Johnson & Johnson.
During trial, attorneys for the company argued that Ann Gibbons' current and former husbands were both employed in the construction industry between 1981 and 2000, and their work allegedly exposed them and her to products containing asbestos.
Matthew Sanchez of the R.J. Lee Group, (a materials testing lab in Pennsylvania) a frequent expert witness at talc powder trials, testified for the company that testing of the product showed no asbestos in the baby powder.
The plaintiffs countered that the burden of proof did not rest with them and that their discovery answers were sufficient.
"Even if the burden shifted, plaintiffs maintained their evidence demonstrated the Vermont (talc) mines were contaminated with asbestos and 'asbestos was routinely found in testing of the finished (JCCI) products,'" Dunning wrote. "Appellants' opposition did not include verified admissions or interrogatory answers by respondent or judicially noticeable matters. It was presented solely through the declaration of their counsel..."
Company attorneys asked the Superior Court for summary judgment.The plaintiffs had not submitted an expert declaration in opposition to the summary judgment motion, the brief explained.
The Superior Court granted summary judgment to Johnson & Johnson, finding the plaintiffs had not conducted more discovery nor sought to obtain their own expert declaration. The plaintiffs appealed.
The Appeals Court found that the plaintiffs offered no rebuttal to the testimony of Sanchez for the company, but instead maintained that mesothelioma plaintiffs did not need their own expert to make a case for asbestos exposure.
“Appellants’ argument that 'it does not require an expert to explain to a jury that there was asbestos in the Vermont talc' is conclusory as to the type of evidence that is within a layperson's ken," Dunning wrote. "It sidesteps the need for expert testimony to rebut Sanchez’s expert opinion 'to a reasonable degree of scientific certainty,' that the respondent’s talcum powder products are free of asbestos."
The Appeals Court decided the Superior Court had acted properly in granting summary judgment to Johnson & Johnson.