Submission of Conflicting Expert Reports Leads to Denial of Summary Judgment in Talcum Powder Case Supreme Court of New York, New York County, November 24, 2018

The plaintiff Donna Olson filed suit against the defendants Johnson and Johnson and Johnson and Johnson Consumer Inc. (defendants) alleging she developed pleural mesothelioma as a result of exposure to cosmetic talcum powder, including baby powder and Shower to Shower from 1953-2015. Additionally, the plaintiff claimed exposure from her mother’s application of the same. Ms. Olson stated in deposition testimony that there were no warnings. However, she conceded that she heard about a “possible link to ovarian cancer” in 2015. The defendants moved for summary judgment.

The court began its analysis and reminded that summary judgment is appropriate when all material issues of fact are eliminated. The defendants argued that the plaintiffs had not presented any evidence of exposure to asbestos. Specifically, the defendants argued they were entitled to summary judgment as the plaintiff lacked proof of causation because “1) the talc was sourced from asbestos free mines 2) the mined talc was purified 3) there were internal tests to ensure the lack of contamination 4) both government and independent tests confirmed the product was asbestos free.” Moreover, the defendants believed that their experts had proven that Ms. Olson had not been exposed to asbestos through the use of talc. The court was not persuaded and noted that “pointing to gaps in the plaintiff’s proof” is not sufficient to grant summary judgment.

Expert affidavits were provided by Dana Hollins, Michael Peterson, and Matthew Sanchez. As for Certified Industrial Hygienist, Ms. Hollins, the court noted that her affidavit failed to “unequivocally establish lack of causation” particularly because it lacked scientific foundation. Additionally, her affidavit failed to prove that the defendants’ products did not contribute to causation of Ms. Olson’s injury.

As for toxicologist, Michael Peterson, the court found that his statements regarding epidemiologic data to contradict Ms. Hollins “reference to numerous published and unpublished studies.” Mr. Peterson’s statements that Ms. Olsen’s mesothelioma was likely caused by some other “origin” was determined to be conclusory as no mathematical analysis was including to account for the actual exposure.

Matthew Sanchez provided a report regarding the geologic characteristics of talc. Specifically, he concluded that the talc supplied by the defendants did not contain asbestos. However, the court took exception with the fact that Dr. Sanchez’s report referred to studies and testing outside with samples not relevant to Ms. Olsen’s exposure time frame. The court concluded that all the defendants’ experts failed to establish without question that the defendants products did not contribute to the causation of Ms. Olsen’s injury.

The plaintiff’s experts Dr. Moline, Dr. Compton, Dr. Longo and Dr. Finkelstein submitted the following in the plaintiff’s opposition to the defendants’ motion for summary judgment.

The defendants took the position that Dr. Moline was discredited in the Juni decision. That decision involved Dr. Moline’s opinion with respect to the plaintiff’s exposure in brake dust and the lack of causation because she couldn’t tell whether the asbestos fibers were “active after the braking process.” However, the court noted the instant case was different because the plaintiff alleges exposure only to talc. Here, Dr. Moline’s report relied on other reports and studies which postulated that small amounts of asbestos were sufficient to cause disease. Moreover, the reports relied upon data suggesting talc was in the defendants’ products. Accordingly, an issue of fact was raised by the plaintiff as to causation.

Medical doctor Murray Finkelstein submitted an affidavit which “incorporates relevant portions of multiple studies of talc and his own comparison and scientific modeling of Donna Olsen’s exposure.” The court was persuaded that his report established an issue of fact as to causation vis a vis Ms. Olsen’s exposure.

As for Dr. Compton, the court concluded that his report that “aerosolization of the consumer talc products containing the samples would have elevated concentrations of asbestos fibers.” Therefore, a material issue of fact has been presented by the plaintiff. Dr. Longo’s report also created an issue of fact according to the court because some of his testing involved samples from after the plaintiff’s exposure timeframe.

Noting the “drastic” nature of summary judgment and the conflicting defendant reports, the court denied summary judgment as to strict liability and negligence. The court dismissed the plaintiff’s cause of action for fraud and civil conspiracy. However, the court found that the plaintiff had raised issues of fact regarding her claims for punitive damages.

 

Leave a Reply

Next ArticleSpecial Master's Recommendation Vacated; Order Permitting Limited Discovery of Co-Defendants to Establish Apportionment Granted