SAN FRANCISCO (Legal Newsline) - Plaintiff experts who cited evidence that Johnson & Johnson talcum powder contained asbestos, without actually performing tests themselves, can nevertheless offer their opinions the powder caused a man’s cancer, a California appeals court ruled.
A trial judge dismissed the lawsuit by Jo Ann Strobel over the death of her husband Douglas from mesothelioma, a cancer of the chest lining linked to asbestos exposure. Johnson & Johnson had argued successfully that plaintiff experts including mineralogist Sean Fitzgerald and a physician relied upon hearsay in the form of tests performed by Dr. William Longo, a materials scientist who claims to have found asbestos fibers in decades-old samples of cosmetic talcum powder.
Strobel argued her husband had no known exposure to asbestos other than applying Johnson’s Baby Powder to his feet and body habitually for years, starting after his birth in 1951. But the trial judge ruled her experts had no direct knowledge of whether the powder Strobel used contained asbestos and rejected their sources of information, including Longo’s reports, as hearsay.
The First District Court of Appeal reversed, finding an exception to the general rule barring hearsay testimony. While it is true “an absent witness’s opinion may not be smuggled into evidence through an expert by dressing it up as background information,” the appeals court ruled, experts can form their opinions upon generally available information.
In the case of talc, plaintiff lawyers have assembled a small group of highly paid experts who use x-ray microscopy and other techniques to identify what they claim are asbestos fibers in old samples of talc, including bottles lawyers purchased on eBay and a set of samples they obtained from a historical display at J&J. Those experts then provide the evidence doctors need to offer their opinion that the plaintiff contracted mesothelioma or ovarian from the fibers in the talc.
Defense experts maintain Longo, Fitzgerald and others are using improper scientific techniques to confuse lay jurors into thinking non-asbestos particles meet the definition of deadly asbestos fibers. They also argue that even if the plaintiff experts are correct, it is impossible to attribute cancer to the infinitesimal amounts of asbestos they say is in talc when people inhale billions of fibers from environmental exposure.
The appeals court, in its Sept. 21 decision, acknowledged the fundamental disagreement between plaintiff and defense experts over whether there is any asbestos in talcum powder. It also ruled that the trial judge was correct to bar Fitzgerald from telling jurors that there was asbestos in the powder Strobel used, since only Longo, not hired as an expert witness in this case, claimed to have found asbestos in samples of powder sold after Strobel was born.
The trial court went too far in barring all of Fitzgerald’s testimony, however, the appeals court ruled. It said experts can offer opinions based upon information generally accepted as reliable by experts in their field. The court cited a California Supreme Court decision that came out after the Strobel dismissal, which allowed a police expert to testify about pills based upon their markings alone, without testing them in a lab, since the manual he consulted was considered authoritative.
In this case, Fitzgerald and other experts relied upon a variety of information including government reports and industrial standards organizations to infer that asbestos was present in the raw talc coming out of mines and some of it made it through the milling process to end up in finished product.
While J&J disputes this entirely, “which of these competing views to accept must be decided at trial,” the court ruled.