In Lyons v. Colgate-Palmolive Co. (filed October 19, 2017, A150567), the California Court of Appeal, First Appellate District, held that a plaintiff’s testimony regarding use of a particular manufacturer’s product, joined with expert testimony that said product contained asbestos, was sufficient to demonstrate the existence of a triable issue of material fact, thus allowing plaintiff to defeat the defendant manufacturer’s motion for summary judgment.
In Lyons, the plaintiff alleged she developed mesothelioma from use of “Cashmere Bouquet” cosmetic talcum powder, which allegedly contained asbestos. This product was manufactured by defendant, Colgate-Palmolive Company. During plaintiff’s deposition, she testified she had used the product “from the early 1950’s to the early 1970’s.” She admitted she did not retain any of the containers or packaging of the product, but stated that the container was a “pink tin can” which depicted “little pink flowers” and the words “Cashmere Bouquet.”
Colgate filed a motion for summary judgment on the ground plaintiff could not demonstrate that the talcum powder she used actually contained asbestos. In support, Colgate offered evidence demonstrating that the “Cashmere Bouquet” talcum powder did not contain asbestos. In opposition to the Motion, plaintiff offered her deposition testimony, in conjunction with a declaration of an expert witness, who attested that Colgate’s “Cashmere Bouquet” talcum powder was derived from talc mines in only three locations in the United States. The expert further opined that some talc samples he analyzed from each of the three mining locations, and some samples of “Cashmere Bouquet” talcum powder, confirmed the presence of asbestos.
The trial court granted the Motion for Summary Judgment, but the Court of Appeal reversed, holding the expert’s testimony combined with plaintiff’s description of the product and description of usage were sufficient to establish a triable issue of material fact for purposes of defeating the motion for summary judgment.
In distinguishing several cases relied upon by Colgate, the Court of Appeal noted that the evidence demonstrated “more than an unsupported possibility” that the plaintiff contracted mesothelioma as a result of exposure to Colgate’s product. Unlike the cases relied upon by Colgate, there was no “guesswork” required of the trier of fact; reasonable inferences could be drawn that the product manufactured by Colgate: (1) contained asbestos; and (2) was used frequently by plaintiff for approximately 20 years.
The holding in Lyons is significant and troubling as it evidences the minimal burden a plaintiff must meet to survive summary judgment involving claims of disease or illness resulting from exposure to products. Despite that plaintiff had not retained any sample of the product she used, and despite evidence from the manufacturer demonstrating no asbestos was present in the product, the Court nonetheless concluded that a fact question existed on the basis of the plaintiff’s self-serving testimony of her use of the product, and an expert’s opinion that some samples of the product (and its sources) contained asbestos.
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