Defects in Chain of Custody Lead to Affirmation of Talcum Powder Defendant’s Motion for Summary Judgment Court of Appeal, Second District, Division 4, California, May 16, 2018
CALIFORNIA — The plaintiffs Barbara and John Wittman asserted claims for negligence, strict liability, breach of warranty, and loss of consortium against Defendant Coty, Inc. (Coty) alleging that Barbara’s exposure to asbestos in Coty’s talcum powder resulted in her developing mesothelioma.
Coty filed a motion for summary judgment, contending that Wittmans’ discovery responses and deposition testimony “demonstrated their inability to prove the claims.” Coty stated that the Wittmans could not show that Barbara was exposed to asbestos through the particular Coty product she had used, namely, a specific face powder. Coty further sought summary judgment on the request for punitive damages on the grounds that the Wittmans could not show oppression, fraud, or malice.
The Wittmans opposed summary judgment and summary adjudication, contending that Coty “did not carry its initial burden regarding their purported inability to show Barbara’s exposure to asbestos from Coty’s product and the existence of oppression, fraud, or malice.” They further maintained that there were triable issues regarding the requisite asbestos exposure, relying on a declaration from expert John Harris, who stated that he found asbestos fibers in some face powder provided to him.
The trial court granted summary judgment, holding that Coty carried its initial burden regarding whether the Wittmans lacked needed evidence of Barbara’s exposure to asbestos. The court further ruled that John Harris’s declaration was inadmissible, largely based on the fact that the Wittmans did not establish a chain of custody for the face powder provided to Harris.
The appeals court held that plaintiffs’ discovery responses were factually devoid with regard to Barbara’s alleged exposure to asbestos from Coty’s product; the responses contained only general allegations against Coty, rather than “specific facts showing that [Barbara] was actually exposed to asbestos-containing material from [Coty’s] products. The court further ruled that the collective evidence showed only that Barbara found an opened container of Coty’s product and supplied it to her husband for delivery to their counsel, who offered no evidence regarding “what, if anything was delivered, how it was stored, whether and how it was repackaged, how it was labelled, how it was sealed, and how it was delivered to…Harris.” As such the appeals court affirmed Coty’s motion for summary judgment.