Talc Manufacturer’s Summary Judgment Reversed; Question of Fact as to Asbestos content of Product Court of Appeal of California, First Appellate District, Division Three, October 19, 2017
CALIFORNIA — Plaintiff Mary Lyons appealed summary judgment entered against her on her product liability claim against defendant Colgate-Palmolive, which was based on the allegation that she developed mesothelioma from the use of Colgate’s Cashmere Bouquet cosmetic talcum powder. The plaintiff testified at her deposition that she regularly used Cashmere Bouquet after bathing from the early 1950s through the early 197’s. Colgate manufactured Cashmere Bouquet from 1871 until 1985, and continued marketing the product until 1995, which coincided with the United States EPA’s report that the presence of asbestos in talc makes it a human carcinogen.
Colgate argued that since the plaintiff was unable to produce any of the tin cans containing Cashmere Bouquet, there “is no evidence of any testing of a Cashmere Bouquet product that Ms. Lyons actually used to determine whether it contained asbestos.” Colgate also produced expert testimony that opined Cashmere Bouquet “was free of asbestos.”
The plaintiff’s expert, Sean Fitzgerald, provided an extensive declaration in opposition to the motion for summary judgment, stating that “talc from all three of the sources identified by Colgate as the sources of its talc was contaminated with asbestos in the mine.” Additionally, Mr. Fitzgerald personally confirmed the presence of asbestos in Colgate’s Cashmere Bouquet products. In total, the declaration consisted of 39 exhibits totaling almost 800 pages supporting Mr. Fitzgerald’s conclusions.
The court held that there was undisputed evidence the plaintiff regularly applied Cashmere Bouquet to her body for almost 20 years. The only question, the court stated, is whether Cashmere Bouquet contained asbestos. As to that critical issue, while Colgate produced evidence “tending” to show that it did not, the testimony of plaintiff’s expert, Sean Fitzgerald, unquestionably created a triable issue that Cashmere Bouquet did contain asbestos.
The court determined summary judgment in favor of defendant should not have been granted, reversed the decision, and remanded to the trial court.