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Article: Product Liability Update

Business Litigation Reports

California Courts Reject Speculative Evidence of Exposure to Asbestos from Contaminated Talc. In a new wave of asbestos-related personal injury litigation, plaintiffs allege that they were exposed to talc-containing products that were possibly contaminated with asbestos. A line of recent California court decisions may, however, signal a sea change in the type of proof that is required for plaintiffs in such cases to avoid summary judgment.

Applying the settled principle in California that the “mere possibility” of exposure to asbestos does not raise a triable issue of fact, three separate trial court judges granted summary judgment to talc defendants. See DePree v. BASF Catalysts LLC, No. RG12659674, 2013 WL 8103815, at *1-3 (Cal. Super. Ct. Alameda Cnty. Oct. 12, 2013); Unterleitner v. BASF Catalysts LLC, No. RG15778755 at 4 (Cal. Super. Ct. Alameda Cnty. February 3, 2016); Fields v. Ford Motor Co., No. RG15754936 (Cal. Super. Ct. Alameda Cnty., Aug. 2, 2015). The first of these trial court decisions, Depree v. BASF Catalysts, was recently affirmed on appeal.

In Traditional Asbestos Litigation, Defendants Typically Prevailed on Summary Judgment Only Where the Plaintiff Failed to Provide Product Identification. In the first wave of asbestos-related personal injury litigation, the plaintiffs’ bar targeted companies as defendants that mined and distributed raw asbestos fibers and companies that designed, made and sold products that intentionally incorporated asbestos to resist heat or bind other materials. Epidemiology studies demonstrated that certain occupationally exposed cohorts—such as insulators and pipefitters—were suffering asbestos-related diseases, such as mesothelioma, at alarmingly high rates. In this first wave of asbestos litigation, the defendants did not dispute that products they intentionally designed to contain asbestos were “defective.” The plaintiffs were, therefore, able to get to a jury simply by identifying an asbestos-containing product from which they claimed they were exposed to visible dust.

Once Companies Began Making and Selling a Non-Asbestos-Containing Variant of the Same Products That Previously Incorporated Asbestos, California Courts Required Plaintiffs to Do More than Merely Identify a Product by Name to Avoid Summary Judgment. As the health risks associated with exposure to asbestos became widely known, most companies that designed, made and sold traditional asbestos-containing products, like insulation and gaskets, began producing another variant of the same product that no longer contained asbestos as a component. In cases where a plaintiff sued a company that was responsible for making and selling both asbestos-containing and non-asbestos containing variants of the same products, courts concluded that the plaintiff was required to do more than simply identify the product by name and allege exposure to visible dust from that product to get to a jury.

In a series of four California Court of Appeal decisions, the Courts uniformly held that a plaintiff cannot avoid summary judgment with evidence of exposure to a product where only some, but not all, of the products in the accused product line asbestos. See Collin v. Calportland Company (2014) 228 Cal.App.4th 582, 595 (affirming summary judgment in favor of defendant that made asbestos-containing and non-asbestos-containing versions of a product, because plaintiff could not “present evidence that would allow a reasonable trier of fact to find [it] more likely than not that” the plaintiff was exposed to the asbestos-containing variant.”); Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078 (evidence that some, but not all, of a product contains asbestos insufficient to defeat summary judgment because such evidence establishes only a “possibility” that the plaintiff was exposed to the asbestos-containing variant); McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1105 (“[e]vidence that creates a dwindling stream of probabilities that narrow into conjecture” cannot defeat a motion for summary judgment.); Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1237 (“Mere speculation or conjecture about exposure to asbestos . . . is insufficient to demonstrate the existence of a triable issue of fact to preclude summary judgment.”). Thus, where the evidence adduced demonstrated a “mere possibility” of exposure to asbestos, the claims failed as a matter of law.

Applying Settled California Law to the New Wave of Asbestos-Related Personal Injury Litigation Involving Talc-Containing Products, Claims Involving the Mere Possibility of Exposure to Asbestos from Contaminated Talc Also Fail as a Matter of Law. In a new wave of litigation filed against companies that mine, process and distribute raw talc and companies that design, make and sell consumer products that contain talc, none of the products at issue was formulated to contain asbestos. Instead, plaintiffs allege that they were exposed to products that contained talc and that talc was occasionally and sporadically contaminated with asbestos. Because such products were never designed to include asbestos as an ingredient, and because not every, or even most, of the talc-containing products were contaminated with asbestos, multiple courts have required the plaintiff to do more than merely identify a talc product by name and claim exposure to visible dust from that product to get to a jury.

Absent direct evidence that one or more of the talc-containing product containers used by the plaintiff were actually contaminated with asbestos, or circumstantial evidence that all, or at least most, of the accused talc-containing products were contaminated with asbestos, a jury could not conclude that a talc company was responsible for the plaintiff’s asbestos-related disease without impermissibly resorting to conjecture and surmise. Under California law, courts have begun finding that such claims fail as a matter of law.

For example, in DePree v. BASF Catalysts LLC, No. A140681, 2016 WL 1039497 (Cal. Ct. App. Mar. 15, 2016) (unreported), the plaintiffs alleged that Plaintiff John Depree had developed mesothelioma from exposure to an auto body filler product called Bondo. The product was formulated to contain 20 to 40% talc but no asbestos as an ingredient. Id. at *1-2. Relying on the opinions of a geology expert, the plaintiffs claimed that the talc used in Bondo was contaminated with asbestos. Id. at *3, *8-10. However, plaintiffs could not present evidence that any can of Bondo actually used by Mr. Depree contained asbestos, or that any talc shipped to defendant ever contained asbestos. The court recognized: “The question before us is not whether plaintiffs produced evidence from which a jury could conclude Mr. DePree was exposed to Bondo containing Emtal talc. Instead, the question is whether plaintiffs produced evidence from which a jury could conclude—without speculating—that Mr. DePree was exposed to Bondo containing asbestos-contaminated Emtal talc.” Id. at *11 (emphasis in original). Relying on established California case law the court held: “In the absence of evidence that all or even most of the talc was contaminated with asbestos, plaintiffs could show only a possibility of asbestos exposure,” and “such a possibility is insufficient to support a finding in plaintiffs’ favor on the issue of causation.” Id. at *1. The court emphasized that “at best” the evidence before the trial could have permitted an inference that “some” of the talc at issue contained asbestos and it was “possible” plaintiff was exposed to a can or cans of Bondo containing asbestos-contaminated talc. Id. at *12 (emphasis in original). Consistent with the quartet of California Court of Appeal decisions involving products where only some variants contained asbestos, the possibility of exposure to asbestos from a talc-containing product is insufficient as a matter of law to create a disputed issue of material fact.

The DePree decision also comports with California case law concerning exposure to other materials that were allegedly contaminated, rather than formulated, with a toxin. For example, in Miranda v. Bomel Const. Co., Inc. (2010) 187 Cal. App. 4th 1326, the plaintiff alleged that he contracted “Valley Fever” from contaminated soil stockpiled in the defendant’s vacant lot next to his office. Id. at 1328. The trial court granted summary judgment because the plaintiff had no evidence that his disease was caused by contaminated soil on the defendant’s lot as opposed to another source and because the plaintiff had presented no evidence that the soil on the defendant’s lot was actually contaminated. Id. at 1337, 1344. In affirming the trial court’s decision, the Court of Appeal observed that cases involving exposure by contamination must be distinguished from cases involving exposure to products intentionally designed to contain asbestos where defendants “acknowledge the products under their control contained asbestos.” Id. at 1339. The Court of Appeal concluded that in a contamination case, the plaintiff must prove the specific product or substance to which she was exposed actually contained the disease-producing toxin.

Conclusion. Under California law, where there is no direct evidence of asbestos in the product the plaintiff actually used, a plaintiff cannot defeat summary judgment merely by showing that some, but not all, of a defendant’s product contained asbestos. The recent application of this law to the novel issue of exposure to talc-containing products is an important—and logical—development.