Jackson v. Colgate-Palmolive Company

RESPONSE re NOTICE OF SUPPLEMENTAL AUTHORITY

D.D.C.November 1, 2017

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIAN D. JACKSON, ) Individually, and as Personal Representative ) of the Estate of Doris Jackson, Deceased, ) ) Plaintiff, ) Case No: 1:15-cv-01066 (TFH) v. ) ) COLGATE-PALMOLIVE COMPANY, ) ) Defendant. ) ______________________________________ ) COLGATE-PALMOLIVE COMPANY’S RESPONSE TO PLAINTIFFS’ CITATION TO SUPPLEMENTAL AUTHORITY PURSUANT TO FED. R. APP. P. 28(J) Defendant, Colgate-Palmolive Company (“Colgate”), by its undersigned counsel, responds to Plaintiffs’ Citation to Supplemental Authority Pursuant to Fed. R. App. P. 28(j)1 (Doc. 98) as follows: Plaintiffs have filed with the Court two recent opinions—Lyons v. Colgate-Palmolive Company, No. A150567, (Cal. Ct. App., 1st App. Div., Oct. 24, 2017) and Schoeniger v. Brenntag North America, No. MID-L-005869 (N.J. Super. Ct. Oct. 19, 2017)—both of which are neither dispositive nor persuasive to any of the motions pending before this Court. Plaintiffs first cite to Lyons v. Colgate-Palmolive Company, No. A150567, (Cal. Ct. App., 1st App. Div., Oct. 24, 2017), in which the California Court of Appeal reversed a trial court’s grant of summary judgment in favor of Colgate in a case where the plaintiff alleged that her use of Colgate’s Cashmere Bouquet talcum powder caused the plaintiff’s mesothelioma. The Lyons decision conflicts with a prior ruling, DePree v. BASF Catalysts, LLC, No. No. A140681, 2016 WL 1039497 (Cal. Ct. App. Mar. 15, 2016), from the same court affirming 1 Plaintiffs erroneously invoked the Federal Rules of Appellate Procedure in their filing. Case 1:15-cv-01066-TFH Document 99 Filed 11/01/17 Page 1 of 5 2 summary judgment in a talc case involving alleged sporadic contamination. In DePree, the plaintiff relied on the same expert at issue in Lyons, Mr. Sean Fitzgerald—the expert who Plaintiff originally disclosed but withdrew days before his Daubert hearing before this Court. In both California cases, Mr. Fitzgerald offered the same opinions regarding purported asbestos contamination in talc, but the DePree court recognized that Mr. Fitzgerald did not opine that all talc was contaminated with asbestos and admitted that any purported contaminated would be “sporadic and occasional.” 2016 WL 1039497, at *10. On that basis, the Court of Appeal in DePree held that it was speculative to assume the plaintiff used contaminated product. Id. at *11. Despite those same admissions being in the record in Lyons, the court in Lyons nevertheless held that Mr. Fitzgerald’s proffered testimony was sufficient to create a triable issue. The recent Lyons decision also conflicts with rulings from the Fifth Circuit, Maryland state court, and other California courts. Slaughter v. Southern Talc Co., 949 F.2d 167, 170 (5th Cir. 1991) (affirming summary judgment for defendant because “asbestos does not appear uniformly in talc and may not be present at all”); Greene v. ACandS, Inc., No. 24X16000314 (Balt. City Cir. Ct. May 11, 2017) (available at Docs. 92-3, 92-8); Unterleitner v. BASF Catalysts LLC, No. RG15778755, 2016 WL 7466861, at *3 (Cal. Super. Ct. Alameda Cty. Feb. 3, 2016) (concluding that the plaintiffs’ evidence describing purported instances of asbestos contamination” was “speculative and create[d], at best, a possibility of exposure, which is insufficient.”); (Ex. 1 (Fields v. Ford Motor Co., No. RG15754936, at *3 (Cal. Super. Ct. Alameda Cty. Aug. 2, 2016) (“Plaintiffs have not shown that they possess any evidence establishing that it is more likely than not that Plaintiff was exposed to asbestos from BASF talc. The fact that some trace amounts of asbestos were found in later years in talc samples, or even if this occurred in earlier years, at most shows a ‘mere possibility’ of exposure.”).) Case 1:15-cv-01066-TFH Document 99 Filed 11/01/17 Page 2 of 5 3 Finally, due to the California state procedure in “preference cases,” Cal. Code Civ. Proc. § 36(d), in Lyons Colgate was forced to file its motion for summary judgment before filing its Sargon motions to preclude the plaintiff’s experts’ scientifically unreliable declaration that the Court of Appeal found was sufficient to raise a triable issue of fact. But on a similar record, another division of the California Court of Appeal affirmed a trial court’s preclusion of the same expert’s opinion post-summary judgment, but before trial, and affirmed the jury’s verdict in favor of Colgate. Alfaro v. Imerys Talc Am. Inc., 2017 WL 3668610, at *12-15 (Cal. Ct. App. Aug. 25, 2017). As such, the Lyons court assumed, in the absence of any argument or analysis, that the plaintiff’s proffered expert evidence pertaining to the testing of samples alleged to be Cashmere Bouquet was admissible evidence that was sufficient to create a genuine dispute of material fact. Here, the Court should decide the Daubert and Rule 702 challenges to Plaintiff’s proffered exposure expert before deciding Colgate’s motion for summary judgment.2 Second, Plaintiff cites to a hearing transcript in Schoeniger v. Brenntag North America, No. MID-L-005869 (N.J. Super. Ct. Oct. 19, 2017),3 in which the trial court, before the Honorable Ana C. Viscomi, granted in part and denied in part Colgate’s Motion in Limine to Preclude All Testimony and Evidence Regarding Purported Testing of Talc By Plaintiff’s Experts Based on Lack of Authenticity. Judge Viscomi’s opinion conflicts with her 2015 ruling in Fishbain v. Colgate, et al., No. MID-L-5633-13AS (N.J. Super. Ct. July 21, 2015) (available at Doc. 45-5), in which she had previously excluded vintage product containers, reasoning that the plaintiffs had failed to meet their burden to establish authenticity as the plaintiffs could not account for “the gap in time from 2 Even if Plaintiff’s expert Dr. Ronald Gordon’s opinions are not precluded in whole or in part, Dr. Gordon lacks a sufficient basis to opine that most or all Cashmere Bouquet containers that Ms. Jackson used were contaminated with asbestos and, therefore, Plaintiff can only speculate that Ms. Jackson used contaminated product. 3 Plaintiffs’ broad-brush characterization of the Schoeniger ruling is misleading. (See Doc. 98-2.) Case 1:15-cv-01066-TFH Document 99 Filed 11/01/17 Page 3 of 5 4 which these purported [Cashmere Bouquet] samples were purchased and the intervening time frame.” Aside from additional talc samples purporting to be Cashmere Bouquet that plaintiff’s experts tested since the Fishbain decision, nothing about the authenticity of any of the talc samples had changed—the plaintiff in Schoeniger, like the plaintiff in Fishbain, failed to proffer any evidence to account for “the gap in time” for any of the talc samples to prove that the talcum powder tested was in fact Cashmere Bouquet. Although Judge Viscomi recognized that she had “address[ed] a nearly identical issue in Fishbain v. Colgate-Palmolive,” she declined to follow that same ruling because “other samples [were] made available, additional testing [had] been done, and – and new experts [had been introduced].” Despite those “additional” factors supporting her admission of some of the talc samples, the crux of her reasoning in Fishbain— that is, the plaintiff could not account for the “gap in time” for the talc samples—remained the same as in Schoeniger. As such, the Schoeniger decision is neither dispositive nor persuasive. Indeed, Judge Viscomi’s earlier opinion in Fishbain is consistent with a number of courts across the country that likewise have properly excluded evidence of Plaintiff’s experts testing of samples claimed to be Cashmere Bouquet for lack of authenticity in the samples. See, e.g., Barlow v. ACandS, Inc., et al., Consolidated No. 24X11000783 (Balt. City Cir. Ct. Nov. 13, 2015) (available at Doc. 45-4) (concluding that “all of Plaintiffs’ talcum powder samples shall be excluded from trial,” because of plaintiffs’ “inability to account for the extraordinary attenuation of time, indeed multiple consecutive decades, commencing with the manufacturing of the Cashmere Bouquet and ending with the purported Cashmere Bouquet samples making their way into the hands of Plaintiffs’ testing experts”); Greene v. ACandS, Inc., et al., Consolidated No. 24X16000314 (Bal. Cir. Ct. May 9, 2017) (available at Doc. 92-2) (determining that “Greene has not in the context of this motion established that the test results of the samples establish that they Case 1:15-cv-01066-TFH Document 99 Filed 11/01/17 Page 4 of 5 5 are in substantially the same condition as they were when they left Colgate’s custody”); Alfaro v. Imerys Talc Am. Inc., No. B277284, 2017 WL 3668610, at *1 (Cal. Ct. App. Aug. 25, 2017) (concluding that “due to the substantial gaps in the chain of custody,” the plaintiffs’ proffered expert lacked “a logical basis to conclude” that the samples he tested, and in which he claimed to have found asbestos, were what they purported to be—Cashmere Bouquet talcum powder in the same condition it was in when it left Colgate’s manufacturing facility decades ago). Accordingly, based on those decisions as well as for all the reasons stated in Colgate’s briefing and oral argument at the motions hearing, the Court should preclude Plaintiff from presenting any evidence or argument pertaining to Plaintiff’s experts testing of talc samples. Respectfully submitted, /s/ Matthew T. Wagman Michael A. Brown (D.C. Bar No. 434094) Matthew T. Wagman (D.C. Bar No. 472684) Matthew R. Schroll (D.C. Bar No. MD29424) Miles & Stockbridge P.C. 100 Light Street Baltimore, MD 21202-1487 (410) 727-6464 (T) (410) 385-3700 (F) mbrown@milesstockbridge.com mschroll@milesstockbridge.com mwagman@milesstockbridge.com Attorneys for Colgate-Palmolive Company Case 1:15-cv-01066-TFH Document 99 Filed 11/01/17 Page 5 of 5