Hepler Broom, LLC

Courts Deny Evidence of Asbestos Contamination of Talcum Powder as Hearsay

November 23, 2021

by Audra Zobrist

Regardless of the type of case being tried, it is a longstanding tenet of evidence practice that hearsay statements are inadmissible at trial. The problem with admitting such evidence is that the maker cannot be cross-examined to scrutinize the accuracy, context, and other aspects of the statement. Recently, courts in California, Kentucky, and Pennsylvania, reviewing cases based on exposure to talcum powder allegedly contaminated with asbestos, have held that certain evidence presented to establish proof of contamination was inadmissible as hearsay.

Pennsylvania Court Rules Quoting Another Expert’s Report is Hearsay

In Brandt v. Bon-Ton Stores, Inc., 2020 WL 865276 (2020), Sally Brandt allegedly developed malignant pleural mesothelioma from exposure to asbestos-contaminated Cashmere Bouquet talcum powder. Plaintiff offered industrial hygienist Susan Raterman to opine as to the presence of asbestos in Cashmere Bouquet powder. Raterman testified regarding air sampling data collected by Dr. John Millette that purportedly demonstrated asbestos fiber release during use of the powder. Based on Millette’s data, Raterman quantified Brandt’s asbestos exposure from using the Cashmere Bouquet powder as significant, potentially at 10,000 times background level. Utilizing Raterman’s conclusion, Plaintiff’s pathologist, Dr. John Maddox, concluded that Brandt’s exposure to the talcum powder was a substantial factor in causing her mesothelioma.

Defendant Colgate-Palmolive filed a Motion in Limine to preclude testimony at trial about testing performed by Dr. Millette on the basis that such testimony was hearsay as Millette was not a witness in the case. The Pennsylvania trial court granted this motion and, ultimately, Colgate-Palmolive was granted summary judgment based on lack of causation evidence. The appellate court upheld this ruling, finding that Ms. Raterman simply “quoted verbatim and at considerable length from
Dr. Millette’s reports” and “did not rely on this extrajudicial evidence to formulate her own, independent, expert opinion.” Such being the case, the appellate court agreed the trial court properly excluded Raterman’s testimony and that Dr. Maddox was without a scientific basis for his causation opinions.

Kentucky Courts Rule Quoting Published Articles is Still Relying on Hearsay

In early 2021 in Hayes v. Colgate-Palmolive, 2021 WL 298377 (2021), an appellate court in Kentucky affirmed the lower court’s exclusion from evidence an article titled “Asbestos in Commercial Cosmetic Talcum Powder as a Cause of Mesothelioma in Women,” authored by Ronald E. Gordon, Sean Fitzgerald, and James Millette (“Gordon article”). Plaintiff in the case wished to use the Gordon article because it contained details about testing performed by the authors on various brands of talcum powder, including a brand at issue in their case. In particular, the article concluded that the relevant brand of talcum powder was contaminated with asbestos. None of the authors of the article were offered as witnesses in the case.

Prior to trial, a motion was made to preclude the use of the Gordon article as evidence because the article was hearsay. The trial court agreed and granted the motion. On appeal, Plaintiff argued that the trial court erred because the Gordon paper addressed the central issues of the case, was reliable evidence because it was peer reviewed and published, and the article was relied upon by Plaintiff’s experts. These arguments were not persuasive to the appellate court, which upheld the trial court’s ruling. The higher court asserted that an article’s characteristics of being relevant, peer reviewed, and published do not make the contents of an article or paper admissible evidence. Further, they noted that Plaintiff’s expert in the case merely parroted information from the Gordon report and did not rely on the report in developing an opinion. Therefore, there was no error on the part of the lower court in excluding the Gordon article on the basis that it was hearsay.

California Trial Court Ruling on Hearsay Upheld in Part

Most recently, in the California case of Strobel v. Johnson & Johnson, 69 Cal.App.5th 34 (2021), a written declaration of Dr. Sean Fitzgerald was disallowed as evidence, in part on the basis of hearsay. In this case, Decedent Douglas Strobel, a user of Johnson & Johnson Baby Powder, developed mesothelioma. Plaintiffs produced no containers of product that were used by Mr. Strobel over the course of his product use. Instead, to attempt to prove asbestos contamination, Plaintiff produced written declarations from five experts including Sean Fitzgerald. Fitzgerald’s declaration gave the opinion that asbestos was present in the Johnson & Johnson Baby Powder during the period of time Strobel used the product. This opinion was based on testing and data collected by Dr. William Longo, who was not an expert in this case, as well as on testing performed by governmental agencies, Johnson & Johnson, and himself. Johnson & Johnson moved for summary judgment based on lack of causation evidence due to hearsay inadmissibility of Plaintiff’s expert’s declarations relying on Longo testing and data. The trial court granted the motion.

On appeal, the trial court’s order granting summary judgment was reversed. The higher court agreed with the lower court as to the inadmissibility of a portion of Fitzgerald’s opinions. Specifically, they agreed that to the extent that Fitzgerald’s opinions relied on Longo’s testing and data, such opinions should be inadmissible as hearsay. However, Fitzgerald’s opinions based on his own testing and that of governmental entities and professional standard-setting groups were admissible. The court believed there remained sufficient inferences as to causation in Fitzgerald’s legally allowable opinions to survive summary judgment.

The Takeaway

In cases where development of mesothelioma is alleged from exposures to asbestos-contaminated talcum powder, it is rare that a sample of the powder actually used by the Plaintiff is available for testing. Therefore, attempts at proof of contamination come in many forms. It is important to make appropriate challenges to the offered evidence. One such challenge (as seen in the California, Kentucky, and Pennsylvania cases discussed above) is moving for exclusion of the evidence based on its inadmissibility as hearsay.

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