A California appellate panel appeared skeptical Tuesday of Johnson & Johnson‘s summary judgment win in an asbestos-talc case, questioning the trial judge’s decision to preclude plaintiffs’ experts’ reliance on third-party testing finding asbestos in consumer talc and pressing J&J to explain its “magical” process for filtering out asbestos particles.
All three judges on the panel appeared leery of J&J’s summary judgment win in a lawsuit brought by a now-deceased man and his family claiming his lifetime use of Johnson’s Baby Powder exposed him to harmful levels of asbestos.
The panel pushed back against J&J’s assertion that there was no triable issue of fact and appeared to agree with the plaintiffs’ argument that the trial judge wrongly concluded that the material underlying plaintiffs’ expert’s analysis was based on case-specific hearsay.
Judge Tracie Brown said there appeared to be a triable issue of fact “unless you assume that there’s some magic in the milling process that removes the mere, even possibility, that asbestos in the mined ore could make its way into the product.”
“I don’t see how you have put forward irrefutable, undisputed evidence that there is some magical mining process that filters out these incredibly tiny particles from the ore before it gets into the product,” Judge Brown told Paul R. Johnson of King & Spalding LLP, an attorney for J&J.
But Johnson said that when cosmetic talc is being mined, it is “selected” and that “in the milling process, they test it.”
Johnson’s responses elicited laughter from opposing counsel Gilbert Lynn Purcell of Brayton Purcell LLPand prompted tough questioning from Judge Jon Streeter.
“We’re talking about particles at the submicron level,” Judge Streeter told J&J’s counsel. “You’re telling us that they do some kind of sorting that screens out for ‘purity’ things at the submicron level based on a visual inspection. How does that make sense?”
J&J’s attorney tried to clarify his argument, saying he had meant to say that “when they mill it, they test it.”
Judge Alison M. Tucher also pushed J&J for any admissible evidence “that would sever the commonsense presumption that if it’s in the mine, it’s going to be in the baby powder milled from the mine.”
Johnson replied, “Even if we assume there are bits of diamonds somewhere in a coal mine, it doesn’t mean that everything taken out of the coal mine is laced with diamonds.” He said the same is true “if we assume there is some asbestos contamination [somewhere] in a mine.”
The Strobels sued J&J in California state court in 2019, making claims that included negligence, product liability and fraud. The trial court judge granted J&J summary judgment in January 2020, and the Strobel family appealed the ruling shortly thereafter.
Purcell, who represents Douglas Strobel’s family, told the panel Tuesday that J&J’s assertion that its talc products are asbestos-free is “baloney.” He said that asbestos fibers are smaller and thinner than the wavelength of light and that J&J has been improperly testing its talc and calling it asbestos-free, when it’s not.
“You’ve got to do transmission electron-microscopy, which is what’s done here,” Purcell said referring to the plaintiffs’ expert’s analysis.
Purcell urged the judges to reverse J&J’s win, saying there was a triable issue of fact given that J&J’s expert found there to be no asbestos in ore, while plaintiffs’ expert says asbestos is present in the ore and in the final product.
The panel took the arguments under consideration.