In Talc Case, Gaps in Chain of Custody Lead to Partial Exclusion of Opinions of Plaintiff’s Geologist California Court of Appeal, August 25, 2017

Plaintiff Delgadina Alfaro alleged the development of mesothelioma due to asbestos contained in talcum powder she used as a child. The jury found for defendants Colgate-Palmolive Company, the manufacturer of Cashmere Bouquet talcum powder, and Imerys Talc America, Inc., the successor-in-interest to talc suppliers for Colgate, including Cyprus. The plaintiff appealed, and the court affirmed.

The plaintiff claimed that her mother and grandmother used Cashmere Bouquet and that she used it as well. Her years of exposure were 1977-90. Colgate made Cashmere Bouquet from 1871-1985, and sold it until 1995. The court summarized the information regarding talc, asbestos, and mesothelioma. The plaintiff’s expert, Sean Fitzgerald, testified that he found asbestos in the mines used by Colgate to obtain talc. Further, his examination of quality-control testing of talc by Colgate and Cyprus confirmed the presence of asbestos in the product. Prior to trial, the court denied the defendants’ motion to exclude Mr. Fitzgerald’s testimony, but excluded two aspects: (1) his recent testing of talc from vintage Cashmere Bouquet containers, and (2) his ultimate conclusion that plaintiff was exposed to “substantial” asbestos from use of Cashmere Bouquet. The plaintiff presented four additional experts at trial, and defendants presented five experts, including Dr. Sanchez, a geologist who rebutted Mr. Fitzgerald’s testimony.

The plaintiff argued the trial court erred in excluding these two aspects of Mr. Fitzgerald’s testimony. First, the court found no error in the trial court’s excluding the analysis of recently-obtained vintage samples. These samples presented an unreliable basis for his opinions. The court summarized the specific samples tested, where they came from, and the tests/analyses performed on each. The defendants argued these samples were unreliable due to the significant gaps in the chain of custody between their original sale and the tests performed decades later. The potential for contamination after manufacture were particularly problematic where all the samples were open and partially used. The plaintiff’s own experts admitted that asbestos was everywhere at background level. Further, four other trial courts in the nation had excluded the same samples.

The plaintiff further asserted that the trial court improperly focused on the defects in the chain of custody rather than their relative reliability as a basis for Mr. Fitzgerald’s opinion. The court agreed that the proper question was the reliability of the evidence as the basis for an expert’s opinion, rather than the issue of the admissibility of the evidence itself. However, the chain of custody issue was relevant to the question of reliability. Chain of custody may be evaluated as a measure of the reasonableness of an expert’s reliance on evidence. “While analysis under section 801 may not necessitate proof of a chain of custody with the level of detail required for admission of the evidence, a court may nevertheless evaluate this issue as a measure of the reasonableness of an expert’s reliance on that evidence. At bottom, chain of custody requirements strike at the same concern—that the evidence is what the offering party says it is.” Here it was clear from the record that the samples could not reasonably be relied upon as authentic, unaltered samples. The plaintiff had other evidence of potential asbestos contamination, without these samples, through Mr. Fitzgerald’s testimony about the historical testing and his own investigation of the talc mines.

Second, the plaintiff argued the trial court erred in excluding Mr. Fitzgerald’s releasability testing conducted on the vintage samples, and his ultimate opinion that she was likely exposed to “significant airborne asbestos.” The court disagreed. The trial court conducted a lengthy hearing to allow plaintiff to show that, absent the results of testing from the vintage samples, Mr. Fitzgerald had sufficient evidence on which to base an opinion as to her asbestos exposure. The trial court excluded his opinion at the end of the hearing because the samples on which this opinion relied did not have a sufficient chain of custody. The plaintiff failed to offer any valid basis upon which Mr. Fitzgerald could offer an opinion on releasability related to her use of Cashmere Bouquet; “…absent evidence of those test results, Fitzgerald had an insufficient basis to connect his analysis showing that historically some Cashmere Bouquet products were likely contaminated with asbestos to his conclusion that the products Alfaro used were contaminated. Alfaro fails to explain how this was error.”

Read the full decision here.

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