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Plaintiff’s Expert Precluded under Rule 702, Talc Defendant’s Motion for Summary Judgment Granted

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4th Circuit US District Court

Plaintiff Patricia McElroy claimed asbestos exposure via talc-based beauty products from varying brands and asserted a cause of action based upon negligence and product liability, including inadequate design, formulation, breach of implied warranty, willful and wanton conduct, and failure to warn. The plaintiff alleged that defendant Colgate-Palmolive Company developed, manufactured, marketed, and distributed Cashmere Bouquet, which the plaintiff claimed caused her to inhale mesothelioma-causing asbestos fibers. The defendant moved to exclude the testimony of expert witness William Ewing, and for summary judgment.

Ewing is a certified industrial hygienist and has practiced in the field for 43 years, with a focus on asbestos exposures in facilities. In the instant action, Ewing intended to testify as to the occurrence of asbestos-contaminated talc, as well as regarding McElroy’s airborne exposures from cosmetic talc contaminated with anthophyllite asbestos and tremolite asbestos.

The defendant challenged Ewing’s proffered testimony regarding McElroy’s airborne exposures, contending that it was based upon unsupported speculation and conjecture. Ewing’s opinion regarding Patricia McElroy’s actual exposure to airborne asbestos was based upon an article by Ronald E. Gordon titled “Asbestos in Commercial Cosmetic Talcum Powder as a Cause of Mesothelioma in Women.” The article reports testing approximately 50 containers of “one historic brand of cosmetic talcum powder,” where the containers were produced over a 50-year time span. The article concluded that the brand that it tested “contained asbestos and the application of talcum powder released inhalable asbestos fibers,” which exposure is, in turn, a “causative factor in the development of ovarian carcinomas, gynecological tumors, and mesothelioma.”

Ewing intended to testify that if the Cashmere Bouquet products the plaintiff used had similar levels of contamination as that found in the 50 containers tested in the Gordon report, the plaintiff was exposed to asbestos on comparable levels. Ewing intended to extrapolate the fact of exposure and causation from the findings in the report even though he was unable to provide essential details regarding the report. Ewing could not testify to the origin of the containers tested in the Gordon article; he did not know when the tested containers were manufactured, nor could he testify whether and how the article was peer-reviewed or to the methodology employed by its authors. When asked how he knew that the product studied by the report, identified in the article only as “one historic brand of cosmetic talcum powder,” was, in fact, Cashmere Bouquet. Ewing stated that someone had told him it was Cashmere Bouquet.

The court found that Ewing’s lack of vital information regarding the Gordon report was determinative of unreliability regarding Patricia McElroy’s airborne exposures as it entirely relied upon the findings within the Gordon report. Thus, the court held that Ewing’s testimony was excluded under Rule 702.

The defendant subsequently moved for summary judgment, claiming that the plaintiff did not meet their burden of proof pursuant to North Carolina law that Patricia McElroy was in proximity to Cashmere Bouquet contaminated with asbestos and was so exposed “on a regular basis over some extended period of time.”

The plaintiff proffered various reports that found trace amounts of contamination within the Italian No. 1 Talc (the talc used in Cashmere Bouquet), including amphibole asbestos. When looked at in the light most favorable to the plaintiff, the court found that 97 to 99% of the Italian No. 1 Talc was comprised of pure mineral talc. Additionally, the plaintiff provided independent product testing that established that some containers of Cashmere Bouquet from 1930 through the 1970s contained low levels of asbestos.

However, the court held that evidence that some Cashmere Bouquet had trace amounts of asbestos during some of the time in which Patricia McElroy used the product does not create a triable issue of fact of exposure, nor does it adequately show that she was exposed to asbestos on a regular basis for an extended period of time. The court reasoned that such evidence shows merely a possibility of exposure, which is insufficient. Thus, the court cannot allow a finding of liability based upon such speculation.

For the aforementioned reasons, the court granted the defendant’s motion to exclude expert testimony by Ewing along with its motion for summary judgment based upon inadequate exposure and causation evidence.

Read the full decision here