LOS ANGELES (Legal Newsline) - The testimony of an Avon executive can't be used to defeat a lawsuit that alleges exposure to asbestos from the company's talcum powder, a California appeals court has found.
The Second Appellate District ruled against Avon on Jan. 23 because much of what Lisa Gallo testified to occurred before she began work at the company in the mid-1990s. Alicia Ramirez's lawsuit says she started using the Avon products in the 1970s.
"This case highlights the difficulties both sides encounter when litigating a latent injury possibly caused by exposure to a toxic substance 50 years ago," says the ruling, which overrules the judgment obtained by Avon in Los Angeles Superior Court.
That trial court had overruled objection to Gallo's declaration that said her statements were hearsay. The Second District's decision allows lawyers at Maune Raichle Hartley French & Mudd and attorney Ted Pelletier to pursue the case on behalf of Alicia's estate (she died while the appeal was pending).
The complaint also alleged exposure to asbestos from Alicia's work in the garment industry and from the clothing of her husband, who worked in automotive repair.
Gallo started at Avon's research and development department in 1994 and was picked by the company to be deposed.
"Virtually all of her statements, however, concerned activities at Avon in the 1970s, and all but two of the documents she attached were also from that decade."
Gallo testified Avon never used asbestos as an ingredient and since the early 1970s required its talc suppliers to provide asbestos-free talc. The company also had a quality assurance measure to ensure the talc contained no asbestos and that if a single fiber of asbestos was detected during a three-step screening program, the product would not make it to market.
Plaintiff lawyers said her testimony lacked foundation and personal knowledge and contained hearsay. The trial court disagreed and added that her declaration shifted the burden of proof to the plaintiffs, who now essentially needed to find Avon-brand talcum powder from decades ago that contained asbestos.
That shift led to the dismissal of the complaint and the appeal that followed. The Second Division said the trial court erred in overruling the plaintiff's objections to Gallo's testimony.
"Avon does not cite any California case or statutory law holding that notwithstanding the... clear statutory law, a person deposed as a corporate person most qualified... may testify at trial unrestrained by the rules of evidence which apply to ordinary lay witnesses," the ruling says.
"What Avon is in effect suggesting is that if a party deposes a corporate entity, the corporate entity is no longer bound by the rules of evidence at any subsequent trial or hearing. This is simply nonsense."
The issue of exposure is far from over, however, as both sides face hurdles in proving what was in talcum powder more than 40 years ago. The ruling says Gallo testified Avon knew in the early 1970s some of its talc was contaminated and took steps to address that, but the Second District questioned why the company did not document those measures.