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Partial Exclusion of Expert Opinion Leads to Summary Judgment for Talc Defendant

Court: Superior Court of Arizona, Maricopa County

In this asbestos action, plaintiff Jeffrey Weiss alleges that he developed mesothelioma as a result of his use of various brands of talcum powder products from 1979 to 2011. Plaintiffs assert that asbestos is an accessory mineral that may be naturally present in talc. Defendants recognize that some scientists claim to have identified asbestos fibers in cosmetic talc powders. Defendants further argue that, even if some fibers in talc are considered to be asbestos, it has not been established that these accessory fibers cause mesothelioma.

Several of the defendants moved to exclude expert testimony that cosmetic talc causes mesothelioma, arguing there is no scientifically reliable evidence linking talc products to the development of mesothelioma. Both sides employed expert witnesses in support of their positions. Defense expert Dr. Kenneth Mundt opined that there is no epidemiological evidence that use of cosmetic talc products increases the risk of mesothelioma. Meanwhile, plaintiffs assert that the asbestos in talc causes mesothelioma, and that they are therefore not required to prove that talc itself causes mesothelioma. Plaintiffs’ expert Dr. William Longo opined that his testing demonstrates that users of cosmetic talc are exposed to asbestos at levels significantly higher than normal or “background” levels. Further, plaintiffs’ causation expert Dr. Jacqueline Moline opined that various studies demonstrate that numerous individuals with exposure to asbestos-containing talc products have developed malignant mesothelioma, and that asbestos in cosmetic talc caused plaintiff’s mesothelioma.

The court reviewed the numerous studies and expert evidence cited by both sides, noting that there is not a definitive, peer reviewed, study that scientifically established that asbestos in cosmetic talc products plays a significant role in the development of mesothelioma. The court went on to note that the evidence supporting the notion that asbestos in cosmetic talc causes mesothelioma – including Moline’s case series – is “very thin.”

In order for plaintiffs to be able to establish a prima facie case, Moline’s testimony must be admissible under Rule 702 of the Arizona Rules of Evidence, which requires: a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Defendant Shulton Inc. moved to exclude the testimony of materials scientist Longo. Longo opined that, based on testing of talc ore used to manufacture certain brands of talc products, as well as the testing of finished talc products, individuals who used Johnson’s Baby Powder, Gold Bond, Old Spice, Mennen, and Clubman talc products have been exposed to fibrous amphibole and chrysotile asbestos. Longo stated that individuals who regularly and consistently used those specific products would have been exposed to asbestos substantially above background or ambient levels. Defendants seek to preclude Longo from testifying (1) regarding his chrysotile methodology and findings and (2) that Plaintiff’s use of Defendants’ talcum powder caused him to be exposed to asbestos at levels above background.

The court reviewed Longo’s studies and their methodology, including his finding that Old Spice and other brands of talc products caused plaintiff to be exposed to asbestos at levels above background. The court concluded that Longo provided a sufficiently reliable basis for the conclusion that talcum powder contains asbestos. Longo did not, however, provide any meaningful or reliable opinion on the level of talcum powder asbestos exposure that plaintiff was subjected to, and so will not be allowed to provide any such opinions.

Defendants also moved to exclude the testimony of plaintiffs’ environmental and occupational disease expert Moline, arguing that (1) Moline’s opinions are not based on a reliable foundation, (2) she did not follow her own methodology, and (3) she is not competent to testify about the asbestos content of defendants’ products or dosage levels plaintiff was exposed to. Moline opined that plaintiff’s exposures to dust from asbestos-containing talcum powder products made and/or sold by defendants were a substantial factor in causing his mesothelioma. Defendants claim that there is no reliable basis for this opinion and that Moline used conclusory, subjective measures, rather than scientifically verifiable measures.

The court considered evidence regarding the reliability of Moline’s causation opinions at a hearing. The court noted that the theory that asbestos from talcum powder causes mesothelioma does not have general acceptance in the scientific community. The court further considered the New York Court of Appeals’ ruling in Nemeth v. Brenntag North America that Moline’s testimony should have been precluded. Ultimately, in the instant case, the court determined that Moline has failed to provide any foundational basis for her opinion that exposure to asbestos at a level analogous to plaintiff’s was shown to be a substantial factor in causing mesothelioma. Without anything further, there is too great of an analytical leap between the data and the opinion proffered by Moline, and Moline’s conclusion that asbestos in talc caused plaintiff’s mesothelioma is speculative and inadmissible. With the exclusion of that opinion, plaintiffs cannot establish that plaintiff was exposed to sufficient levels of asbestos to cause mesothelioma.

Defendants also moved to preclude expert testimony from Dr. Steven Compton. Defendants requested Compton’s deposition numerous times to no avail. However, as no case law was cited in support of defendant’s proposition that counsel’s failure to voluntarily provide an expert for deposition should result in exclusion of the opinion, the motion was denied.

Further, defendant Shulton moved for summary judgment in its favor, and defendants Proctor & Gamble and Wyeth joined. Shulton manufactured and sold Old Spice talcum powder from 1938 until the company was purchased by Proctor & Gamble in approximately 1990, and the product was discontinued in 1992.

Shulton contends that there is no evidence Old Spice talcum powder was a substantial contributing factor to the cause of plaintiff’s mesothelioma. Plaintiffs contend, however, that the use of talc can expose the user to hundreds of thousands to millions of asbestos fibers per gram of talc, and Moline opined that the talcum powders at issue here were a substantial factor in plaintiff’s mesothelioma.

The court considered Longo’s calculations and testing regarding the quantification of plaintiff’s use of Old Spice talcum powder, as Longo determined that it accounted for 10.7 percent of plaintiff’s total exposure to talcum powder. Dr. John Maddox, plaintiffs’ pathologist expert, opined that plaintiff’s cumulative asbestos exposures, including his personal talc usage and possibly his secondary talc exposure, caused his mesothelioma.

To prevail, plaintiffs must prove that Old Spice contained asbestos, that it was the proximate cause of plaintiff’s mesothelioma., and that Old Spice’s conduct was a ‘substantial factor’ in causing his injury. In an asbestos case, the expert causation testimony must be specific to the dose of asbestos attributable to a particular defendant. Through expert testimony, plaintiffs must prove that Old Spice contained asbestos. A mere showing that asbestos was present in Old Spice is not enough – rather, plaintiffs must establish that Plaintiff’s exposure to Old Spice was at a sufficient level to contribute to cause mesothelioma.

The court found that there were serious questions about whether talcum powder at issue even contains asbestos. Plaintiffs provided no proof that the Old Spice product played a substantial role in plaintiff’s mesothelioma and provided no reliable information as to the exposure levels to which he was subjected. Plaintiffs provided no scientific information on the requisite level of exposure that creates a risk of causing mesothelioma. Therefore, the court concluded that is no reliable basis for any conclusion that plaintiff was subjected to a sufficient level of asbestos in talc to create a realistic risk of causing mesothelioma.

Because plaintiffs have not provided adequate evidence that Old Spice was a substantial cause of plaintiff’s mesothelioma, the court granted summary judgment on all counts in favor of the moving defendants.

Read the full decision here.