In February, the Pennsylvania Superior Court affirmed Quinn Emanuel’s landmark summary judgment victory in the first cosmetic talc case to approach trial in Philadelphia.
Our firm represents Colgate-Palmolive Company in multiple lawsuits filed around the country alleging that cosmetic talcum powder products manufactured by Colgate contained asbestos. The defense strategy we developed and implemented in these cases has resulted in a number of significant victories for Colgate, including three appellate decisions in the past year affirming summary judgment in Colgate’s favor.
In the most recent of these decisions, Brandt v. The Bon-Ton Stores Inc., we first attacked the scientific underpinnings of the claims alleged in the trial court with a series of Frye motions. The plaintiff’s liability case hinged on the testimony proffered from two experts who claimed to have tested talc drawn from “vintage” containers of Colgate’s Cashmere Bouquet product and found asbestos. During a week-long Frye hearing in the Pennsylvania Court of Common Pleas, we demonstrated that those experts employed flawed techniques that permitted them to count non-asbestos particles—including certain talc particles—as asbestos. The court excluded those experts’ opinions, holding that their methodologies were not generally accepted in the relevant scientific communities.
The plaintiff then sought to rely on testimony from an industrial hygienist who claimed the plaintiff was exposed to asbestos from Colgate’s products at a level sufficient to cause her disease. The expert offered this opinion by parroting test results of a non-testifying litigation expert, who had employed techniques similar to those the court had excluded—and who would never appear before the jury at this trial. In a transparent effort to avoid Frye scrutiny, the non-testifying expert’s test results had been “published” in a now-defunct journal shortly after they were excluded as unreliable in a separate case in New York. Through a series of motions in limine, we successfully moved to exclude both the “published” test results and the industrial hygienist’s exposure opinion. With no evidence left to support the plaintiff’s causation claims, we renewed our motion for summary judgment during jury selection, and the motion was granted.
On appeal, the plaintiff contested the exclusion of the non-testifying experts’ opinions and also offered an assortment of supposedly disputed facts, attempting to create a triable issue on the highly complex and technical causation issues. The Superior Court affirmed, holding, first, that the trial court had properly applied Pennsylvania law in precluding Plaintiff from using testifying experts as conduits for opinions of non-testifying litigation experts, and, second, that the court had properly granted summary judgment to Colgate in the absence of competent expert testimony establishing that asbestos exposure from Cashmere Bouquet was a substantial factor in causing the plaintiff’s disease. The Superior Court’s decision renders the summary judgment victory permanent, as the affirmance has not been appealed.