California Appellate Court Upholds Defendants’ Summary Judgment Based Upon Appellants’ Failure to Create a Triable Issue of Material Fact

CALIFORNIA – In July 2016, Ann Patrice Gibbons, the plaintiff/appellant, was diagnosed with mesothelioma. A lawsuit was filed by the appellant and her husband in December 2016, alleging the appellant’s exposure to asbestos through her own use, from 1980 to 2000, of Shower to Shower talcum powder manufactured by Johnson & Johnson Consumer Inc. (JJCI), as well as take-home exposure from the appellant’s current and former spouses, who worked in the construction industry from 1981 to 2000.

JJCI, along with their supplier of talc, Imerys Talc America, Inc. filed motions for summary judgment arguing that based upon the conclusion of the defendants’ expert, Dr. Matthew Sanchez, included in a declaration attached to JJCI’s motion, the talcum powder and source mines utilized by the defendants were, and are, free of asbestos.

The appellants, in opposition to the motions, did not rebut the conclusion of the defendants’ expert, but instead presented a declaration of counsel attaching numerous documents in conjunction with Gibbons’ testimony that she used the talcum powder product. The appellants argued that based upon the submission as a matter of odds, Gibbons must have been exposed to asbestos. The appellants’ counsel further argued that the documents themselves created a triable issue of fact, and an expert declaration from their expert(s) was not necessary to defeat the defendants’ motions.

The trial court granted the defendants’ motions finding that the defendants’ expert declaration shifted the burden of proof to the appellants, which required expert testimony to create a genuine issue of fact for trial. The appellants filed a motion for reconsideration which the defendants opposed, and the trial court denied. The appellants appealed.

In the appeal, the appellants made two arguments. First, they argued that the trial court erroneously overruled their objections to the defendants’ expert declaration. Second, the appellants maintained that the expert declaration was insufficient to shift the burden to the appellants to raise a triable issue of material fact.

The appellate court upheld the trial court’s decision regarding objections to the expert declaration, finding “whether Shower to Shower and Johnson’s Baby Powder were contaminated with asbestos was a proper subject for expert opinion.” The appellate court also found in favor of the defendants, agreeing that the expert declaration established “a prima facie showing of the nonexistence of any triable issue of material fact” thereby shifting the burden to the appellants to make a contrary prima facie showing.

In affirming the trial court’s judgment, the appellate court found that the appellants provided no specific facts regarding the presence of asbestos in the talc Gibbons used, and in light of the appellants’ failure to provide an opposing expert position, summary judgment was properly granted.

Read the case decision here.