1

Filed 1/23/23 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

SUSAN JEAN BADER, as 

Representative, etc.,

Plaintiff and Respondent,

v.

JOHNSON & JOHNSON et al.,

Defendants and 

Appellants.

 A158868

 (Alameda County

Super. Ct. No. 

RG18923615)

ORDER MODIFYING 

OPINION AND DENYING 

REHEARING; NO 

CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on December 23, 

2022, be modified as follows:

1. The last sentence on page 38 shall add the words “or 

motion to strike” after the word “objection.” The sentence 

should read as follows:

“But this was only after Dr. Longo had testified 

without objection or motion to strike from Colgate 

that ‘based on [his] testing, based on historical 

documents, based on the percentages that we find 

positive, it’s more likely than not, when she used any 

of these products . . . .’ ”

There is no change in judgment. 

The petitions for rehearing are denied.
2

Date: _____________________

________________________________ P.J.

 Streeter, Acting P.J.
1

Filed 12/23/22 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

SUSAN JEAN BADER, as 

Representative, etc.,

Plaintiff and Respondent,

v.

JOHNSON & JOHNSON et al.,

Defendants and 

Appellants.

 A158868

 (Alameda County

Super. Ct. No. 

RG18923615)

Patricia Schmitz asserted causes of action for strict 

products liability, negligence, and fraud against defendants, 

alleging that their cosmetic talc products were contaminated with 

asbestos and that her exposure thereto caused her 

mesothelioma.1 A jury returned a special verdict in plaintiff’s 

favor. 

In this appeal, defendants Johnson & Johnson and Johnson 

& Johnson Consumer, Inc. (collectively, J&J) argue: (1) the trial 

court abused its discretion by admitting certain expert testimony; 

(2) the trial court gave an adverse inference instruction that was 

unjustified and prejudicial; (3) the trial court erred when it failed 

1 Ms. Schmitz passed away after trial, and her sister, Susan 

Jean Bader, became the personal representative and named 

plaintiff. 
2

to grant a mistrial after certain references to talc causing ovarian 

cancer; (4) the trial court failed to instruct the jury on a critical 

element of fraudulent concealment; and (5) the trial court erred 

in entering judgment nunc pro tunc.

Defendant Colgate-Palmolive Company (Colgate) argues: 

(1) the trial court abused its discretion by admitting certain 

expert testimony; (2) the jury instructions on causation were 

erroneous; (3) the evidence was insufficient to support a verdict 

against Colgate for fraudulent concealment; and (4) the trial 

court erred in entering judgment nunc pro tunc. 

We affirm.

BACKGROUND

The Lawsuit

When Schmitz was a child, she applied J&J’s Baby Powder 

(JBP) to her siblings, and she herself used it from ages 11 to 13. 

She later applied JBP to her aging father and mother when she 

cared for them. Schmitz began using Colgate’s Cashmere 

Bouquet on a daily basis from the age of 13 until her late forties.2 

When she applied Cashmere Bouquet and JBP, they created 

visible dust that she breathed in. Schmitz also used perfumed 

talc sold by Avon. 

Schmitz was diagnosed with mesothelioma in the summer 

of 2018. She filed suit against ten defendants, including J&J, 

Colgate, Avon, and many talc suppliers, alleging that defendants 

2 Colgate stopped selling Cashmere Bouquet in the United 

States in 1995.
3

knowingly concealed the presence of asbestos in their products 

and the health risks the products posed.

The Trial

“Asbestos” generally refers to a group of six minerals—

chrysotile, and the five amphiboles of amosite, crocidolite, 

tremolite, anthophyllite, and actinolite—that, when occurring in 

an “asbestiform habit,” are subject to government regulation.3 

Other minerals, such as talc, can form in asbestiform habit but 

are not regulated as asbestos. 

The trial involved a variety of disputed issues, including 

whether the experts correctly identified various structures as 

asbestos, whether the talc products Schmitz used contained 

asbestos, and, if so, whether that use substantially contributed to 

her risk of developing mesothelioma. As discussed post, there 

was conflicting evidence regarding whether only the six asbestos 

minerals formed in asbestiform habit are capable of causing 

mesothelioma, and whether a threshold level of asbestos 

exposure is required before the risk of mesothelioma increases. 

William Longo, Ph.D., who was qualified as an expert in 

material science, forensic engineering, and asbestos testing and 

exposure, testified for plaintiff regarding his testing of Cashmere 

Bouquet and JBP samples. Dr. Longo followed “counting rules” 

from various analytical methods for microscopy in his testing, 

and these rules govern what constitutes a regulated asbestos 

3 “[H]abit refers to the form, crystal structure and texture 

in which a mineral is found in nature.” (Strobel v. Johnson & 

Johnson (2021) 70 Cal.App.5th 796, 804 (Strobel).) 
4

structure. Dr. Longo explained that his laboratory tested 57 

container samples and 15 railroad car samples of JBP that were 

obtained from J&J’s historical museum. He found asbestos in 68 

percent of these museum samples. He also tested two sets of 

Cashmere Bouquet samples—one set of 38 provided by various 

plaintiffs’ attorneys, and one set of 20 provided by Colgate’s hired 

defense laboratory. He found asbestos in 30 of 38 of the first set, 

and in 20 of 20 of the second set. He characterized the amounts 

of asbestos found in cosmetic talc as trace amounts.

Along with Dr. Longo, plaintiff’s microscopy expert Lee 

Poye tested 16 J&J Shower to Shower samples from the 1970s, 

1980s, and 1990s that were produced by J&J’s attorneys. He 

detected asbestos in 11 of the 16 samples. Dr. Longo testified 

that J&J sourced its talc from Vermont mines for the Shower to 

Shower product for many years, including in the 1970s.

Pathologist Dr. Jerrold Abraham testified that there is a 

dose-response concept for mesothelioma such that every asbestos 

exposure increases a person’s risk of getting the disease. He 

opined that all of Schmitz’s exposures contributed to increase the 

risk, and that there is no known safe level of asbestos exposure. 

According to Dr. Abraham, people who have had very low or brief 

exposures are at increased risk of developing mesothelioma.

Dr. Allan Smith, an epidemiologist, testified that the 

higher the level of asbestos inhalation, the greater the risk of 

getting mesothelioma, and there is no minimum safe level of 

exposure to asbestos. If a patient has mesothelioma caused by 

asbestos, then all the asbestos dust that patient inhaled over the 
5

years was a significant factor increasing the risk of getting 

cancer. Asked to assume that Schmitz was exposed to JBP up 

until she was 13, used Cashmere Bouquet for years, and that 

these products contained asbestos, Dr. Smith opined that 

Schmitz’s mesothelioma was caused by inhalation of asbestos 

dust over many years. In his view, “Any part of the causal dose is 

important and meaningful and could be described, then, as a 

substantial factor.”

Dr. Barry Horn, a lung specialist and critical care doctor, 

testified that mesothelioma is a dose-dependent disease, and the 

more chemical carcinogen exposure, the greater one’s likelihood 

of developing cancer. He was asked to assume that Schmitz used 

JBP on herself and her sisters, her family used JBP, she was 

around the dusty product, she used Cashmere Bouquet for about 

30 years, she used some Avon product, and those products 

contained trace amounts of asbestos. He testified that each of 

her exposures contributed to the risk of getting mesothelioma. 

Dr. Egilman, an occupational and preventive medicine 

physician and epidemiologist, opined that Schmitz suffered from 

malignant pleural mesothelioma caused by inhaling asbestos and 

fibrous talc when she used a variety of cosmetic talc products 

over her life. He testified that Cashmere Bouquet and JBP 

historically contained asbestos. With little explanation, he 

testified that he calculated that Schmitz inhaled between 42 and 

61 billion asbestos fibers over her lifetime from the talc products, 

which was over the allowable OSHA 7 billion fiber lifetime limit 

for workers, and a significant factor in causing Schmitz’s 
6

mesothelioma. He stated the amount of asbestos it takes to cause 

cancer is “really, really low,” and there is no known safe level of 

exposure. He testified that exposure below threshold limit values 

does not mean you would not expect to see cancer, and the OSHA 

threshold produces excess mesotheliomas for workers even 

though they are taught to minimize dust exposure. He also 

opined that both fibrous talc and cleavage fragments can cause 

mesothelioma.

For the defense, Dr. Matthew Sanchez, an expert in 

minerology, testified that one would not expect to find asbestos in 

the Italian, North Carolina, or Montana mines that had been 

used as a talc source for Cashmere Bouquet. He tested Italian 

talc from the Val Germanasca mines used by both Colgate and 

J&J as sources of cosmetic talc, and he found no asbestos. He 

found no asbestos in the talc he tested from the Vermont and 

Chinese talc mines used for JBP. He found no asbestos in the 

Cashmere Bouquet samples that he tested. For JBP, he found 

asbestos in one sample in the first set of 30 samples that he and 

Dr. Longo tested, but he concluded this sample was contaminated 

with other materials based on its unusual content. The 

remaining set of JBP museum samples did not contain asbestos. 

Based on his expertise and testing, he opined that JBP does not 

contain asbestos.

Dr. Sanchez discussed asbestos testing techniques, and he 

explained that x-ray diffraction (XRD) is used to identify the type 

of mineral. Polarized light microscopy (PLM) allows 

identification of the gross morphology—i.e., what the particle 
7

shapes and sizes are, and transmission electron microscopy 

(TEM) (Strobel, supra, 70 Cal.App.5th at p. 806), allows for 

identification of smaller particles using a higher magnification. 

Dr. Sanchez believed that, generally, single particles in a talc 

powder sample are not sufficient to draw meaningful conclusions 

about the growth habit in which the particle formed. He opined 

that Dr. Longo had misidentified some of the minerals present 

and continually reported asbestos in JBP and Cashmere Bouquet 

where he was looking at common cleavage fragments. 

Pulmonologist Dr. David Weill conceded that asbestos 

causes pleural mesothelioma but testified that there must be a 

sufficient dose of exposure, and there is no evidence that 

exposure to background levels of asbestos elevates the risk of 

disease. He testified that women are less likely to get pleural 

mesothelioma than men, and Schmitz’s tumor was spontaneous 

mesothelioma. He opined that cosmetic talc does not cause 

mesothelioma.

Epidemiologist Suresh Moolgavkar, Ph.D. & M.B.B.S., 

opined that 80 to 90 percent of mesotheliomas in women are not 

attributable to asbestos exposure. At exposure to amphibole 

asbestos at 5 fibers per cc-year, there is an increased risk of 

cancer. He opined that Schmitz’s cancer was caused by “ongoing 

biological processes” and exposure to talc had nothing to do with 

it. And he said there is no correlation between cosmetic talc and 

mesothelioma. Nonetheless, when asked whether there was a 

level of exposure to an asbestos that is considered safe for human 

beings, he responded that it “is cautious to assume that no level 
8

of exposure to a toxic substance is safe for human beings to 

expose themselves to.” He also confirmed on cross-examination 

that he had previously stated that, for amphibole asbestos, he 

does not know of a bright line or threshold below which there 

might not be some increased risk of pleural mesothelioma. 

Jennifer Sahmel, an industrial hygienist, calculated 

Schmitz’s worst case exposure from Cashmere Bouquet. She 

explained that there are background levels of asbestos of .00003 

fibers per cc to .006 fibers per cc in the air that we breathe. 

There is no evidence of risk of mesothelioma at background or at 

OSHA’s 1.1 fiber per cc-year limit. From Cashmere Bouquet, 

Schmitz’s cumulative exposure to asbestos was .008 fibers per ccyear, and she stated that no scientific publications or governing 

agencies list exposure limits in total number of fibers rather than 

in concentration (i.e., fibers per cc of air). On cross-examination, 

she conceded that Schmitz’s calculated exposure had to be added 

to background, resulting in a technical cumulative exposure 

above background, and she was asked only to consider asbestos 

exposure from Cashmere Bouquet. When asked whether, from 

her professional standpoint, applying talcum powder with 

asbestos to babies is acceptable, she conceded it was not. 

Brooke Taylor Mossman, Ph.D., testified as an expert in 

the area of cell biology with an emphasis on the development of 

mesothelioma. She opined that asbestos causes mesothelioma, 

and asbestos has many properties that are important in reacting 

with cells to cause changes that are linked to cancer. According 

to Dr. Mossman, nonasbestiform cleavage fragments and fibrous 
9

talc do not cause mesothelioma because they do not have the 

ability to generate the chemicals that interact with cells, change 

DNA, and cause cancer. 

The jury returned a verdict for plaintiff against Colgate 

and J&J on negligence, strict products liability, and concealment. 

It awarded $2,003,006 in economic damages, consisting of 

$150,000 in past medical expenses, $75,000 in future medical 

expenses, $1,287,552 in past and future lost income, and 

$490,454 in past and future household services. It further 

awarded $3.5 million in past non-economic damages and $6.5 

million in future non-economic damages, for a total award of 

$12,003,006. The jury allocated 40 percent responsibility to 

Colgate, 40 percent to J&J, and 20 percent to Avon. As to 

punitive damages, the jury found that plaintiff failed to prove 

malice, oppression, or fraud as to Colgate, but deadlocked as to 

J&J.

DISCUSSION

I. Expert Opinion Challenges

Defendants make three arguments with respect to 

plaintiff’s experts’ opinions regarding causation. First, they 

argue that Dr. Egilman did not have a reliable foundation to 

opine that asbestiform or fibrous talc, uncontaminated by 

asbestos, causes mesothelioma. Second, Colgate argues that the 

trial court erred in admitting Dr. Longo’s unsound asbestos 

contamination analysis due to concerns with the chain of custody 

for the Cashmere Bouquet samples he tested. Finally, both 

defendants argue that Dr. Longo’s exposure opinion should have 
10

been excluded under Sargon Enterprises, Inc. v. University of 

Southern California (2012) 55 Cal.4th 747, 769 (Sargon), and 

Colgate argues that certain aspects of Dr. Egilman’s opinion 

should have similarly been excluded. We consider these 

arguments in turn.

A. Applicable Legal Principles

Trial judges have a “substantial ‘gatekeeping’ 

responsibility” to ensure that an expert’s opinion is based on both 

reliable material and sound reasoning. (Sargon, supra, 

55 Cal.4th at p. 769.) Indeed, the trial court has the “duty to act 

as a ‘gatekeeper’ to exclude speculative expert testimony.” (Id. at 

p. 753.) 

The source of this gatekeeping responsibility is Evidence 

Code sections 801 and 802. Evidence Code section 801 limits 

expert testimony to opinions that are related to a “subject that is 

sufficiently beyond common experience that the opinion of an 

expert would assist the trier of fact,” and that are “[b]ased on 

matter . . . that is of a type that reasonably may be relied upon by 

an expert in forming an opinion upon the subject to which his 

testimony relates.” (Evid. Code, § 801, subds. (a) & (b).) 

Evidence Code section 802 provides that a witness, including an 

expert, may “state on direct examination the reasons for his 

opinion and the matter . . . upon which it is based, unless he is 

precluded by law from using such reasons or matter as a basis for 

his opinion.” In other words, “Evidence Code section 801 governs 

judicial review of the type of matter; Evidence Code section 802 

governs judicial review of the reasons for the opinion.” (Sargon, 
11

supra, 55 Cal.4th at p. 771.) Under these provisions, “the trial 

court acts as a gatekeeper to exclude expert opinion testimony 

that is (1) based on matter of a type on which an expert may not 

reasonably rely, (2) based on reasons unsupported by the 

material on which the expert relies, or (3) speculative.” (Id. at 

pp. 771–772.) “[A] court may inquire into, not only the type of 

material on which an expert relies, but also whether that 

material actually supports the expert’s reasoning.” (Id. at p. 

771.) “[T]he matter relied on must provide a reasonable basis for 

the particular opinion offered, and . . . an expert opinion based on 

speculation or conjecture is inadmissible.” (Id. at p. 770.)

“The trial court’s preliminary [or gatekeeping] 

determination whether the expert opinion is founded on sound 

logic is not a decision on its persuasiveness. The court must not 

weigh an opinion’s probative value or substitute its own opinion 

for the expert’s opinion. Rather, the court must simply determine 

whether the matter relied on can provide a reasonable basis for 

the opinion or whether that opinion is based on a leap of logic or 

conjecture. The court does not resolve scientific controversies. 

Rather, it conducts a ‘circumscribed inquiry’ to ‘determine 

whether, as a matter of logic, the studies and other information 

cited by experts adequately support the conclusion that the 

expert’s general theory or technique is valid. [Citation.] The goal 

of trial court gatekeeping is simply to exclude ‘clearly invalid and 

unreliable’ expert opinion. [Citation.] In short, the gatekeeper’s 

role ‘is to make certain that an expert, whether basing testimony 

upon professional studies or personal experience, employs in the 
12

courtroom the same level of intellectual rigor that characterizes 

the practice of an expert in the relevant field.’ ” (Sargon, supra, 

55 Cal.4th at p. 772.) A judge has broad discretion to exclude or 

admit expert testimony under Evidence Code sections 801 and 

802, and we overturn an evidentiary ruling only if we conclude it 

is arbitrary or irrational. (Id. at p. 773.)

B. Asbestiform or Fibrous Talc

Additional Background

After defendants filed preliminary “placeholder” motions, 

Colgate filed motion in limine No. 4A to exclude Dr. Egilman’s 

anticipated testimony on the ground that he had no scientific 

foundation to opine that fibrous, or asbestiform, talc causes 

mesothelioma. J&J joined. Plaintiff opposed, arguing that Dr. 

Egilman had properly opined that fibrous talc causes 

mesothelioma. Plaintiff's supporting papers included materials 

from the World Health Organization’s International Agency for 

Research on Cancer (IARC) which, according to plaintiff, 

characterized talc containing asbestiform fibers as a “Group 1” 

carcinogen4. At the hearing on the motion, Colgate argued there 

was not a single peer-reviewed article stating that fibrous talc, 

uncontaminated by asbestos, causes mesothelioma, and plaintiff 

4 An IARC “Group 1” agent is an agent that is carcinogenic 

to humans. “This category is used when there is sufficient 

evidence of carcinogenicity in humans. Exceptionally, an agent 

may be placed in this category when evidence of carcinogenicity 

in humans is less than sufficient but there is sufficient evidence of

carcinogenicity in experimental animals and strong evidence in 

exposed humans that the agent acts through a relevant 

mechanism of carcinogenicity.”
13

disagreed, citing the IARC materials. The court denied Colgate’s 

motion.

At trial, Dr. Egilman testified that it was his opinion that 

Schmitz’s mesothelioma “was caused by inhaling asbestos and 

fibrous talc when she used a variety of cosmetic talc products 

over her life.” He testified that IARC had published that 

asbestiform talc is a “Class 1 carcinogen,” and that was his 

opinion as well. He explained that he held this opinion because 

talc is chemically similar to anthophyllite asbestos; there are 

transition fibers that are talc on one end and asbestos on the 

other (either tremolite, actinolite, or anthophyllite); the surface 

properties of asbestiform talc are the same as anthophyllite with 

the same chemical structure; and the surface properties are what 

cause change in DNA and make asbestos carcinogenic. 

Dr. Egilman also testified that he was familiar with 

cleavage fragments. He stated that he would not agree that 

exposures to cleavage fragments that are “3 to 1 aspect ratio” are 

not harmful, and he was not aware of scientific literature 

supporting that proposition.5 He testified about case studies 

where taconite miners were exposed to cleavage fragments that 

caused a large number of mesotheliomas. When asked to identify 

the difference between asbestos fibers and cleavage fragments, 

Dr. Egilman pointed to a picture of a bundle of asbestos fibers 

and explained that the van der Waals chemical force kept the 

bundle together. He said that “chemically-the-same asbestos” 

5 “Aspect ratio” refers to the length to diameter ratio. (See 

Strobel, supra, 70 Cal.App.5th at p. 805.)
14

has “natural cleavage points” held together by the same van der 

Waals force, and, if you manipulate the latter, it will split the 

same as fiber bundles will split, with the resulting product being 

“the exact size and shape as asbestos.” He continued, “And 

studies comparing the surface properties of those cleavage 

fragments to asbestos show that they’re the same, so that there’s 

no reason to think in the body, they would be handled any 

differently or cause any different disease, because it’s the same 

size and shape, it’s the same chemical composition, and it’s the 

same surface properties. [¶] So there’s no reason logically to 

think that the body would react differently from—from one to 

another.” Dr. Egilman added that a paper published the prior 

year had looked at an amosite asbestos product and found that 

most of that product consisted of cleavage fragments, and “there’s 

no question that product causes mesothelioma.” Dr. Egilman 

confirmed that Dr. Mossman had not published anywhere that 

cleavage fragments of tremolite, actinolite, or anthophyllite do 

not cause mesothelioma, and he told the jury that, from a public 

health standpoint, if cleavage fragments are “the same size and 

shape and chemical composition as asbestos,” it was not 

appropriate to say they were not harmful or that they should not 

be called asbestos. 

At the end of his testimony, the court read the following 

jury question: “Q. [I]s it your opinion that cleavage fragments of 

certain size, shape, and structure, even if nonasbestos, are 

carcinogenic and cause mesothelioma?” Dr. Egilman responded, 

“No. It has to be chemically asbestos. Or similar. Fibrous talc is 
15

essentially similar. So just a cleavage fragment of some random 

rock, okay, that’s not—would not, in my opinion—there’s not data 

to show that that would cause mesothelioma.” He also clarified 

that OSHA does not require asbestos to be formed in a bundle to 

be regulated as asbestos, OSHA’s “standard is size and shape[,]” 

and “[a]nything that meets the size and shape and length is—is 

regulated as asbestos.”

The Trial Court Did Not Abuse Its Discretion In

Admitting Dr. Egilman’s Testimony

Defendants argue that Dr. Egilman’s opinion lacks a 

reliable foundation and should have been excluded as speculative 

under Sargon because there is no scientific support for his 

opinion that fibrous talc causes mesothelioma. In light of the 

record before the trial court, we find that defendants have failed 

to establish that the court abused its discretion in admitting Dr. 

Egilman’s opinion.

The record contains a sufficient basis for the trial court’s 

conclusion that Dr. Egilman’s testimony was not subject to 

exclusion under Sargon—in particular, materials from the IARC 

Monographs and other materials discussed post.6 

6 Some of Dr. Egilman’s statements regarding his

supporting materials are vague, and certain of the materials he 

cites do not appear to provide support for his opinion. For 

example, Dr. Egilman purported to rely on an article from “V. L. 

Roggli et al.,” but plaintiff submitted only three even-numbered 

pages from this article. What appears in the submitted pages 

suggests that the article concludes that, based on the presence of 

tremolite fibers in the lungs of the mesothelioma patients studied 

therein, tremolite fibers likely caused the mesothelioma and were 

not removed from chrysotile during the milling process. 
16

Through its Monographs, the IARC seeks to prepare and 

publish, with the help of international working groups of experts, 

critical reviews and evaluations of evidence on the carcinogenicity 

of a wide range of human exposures. Separate “working groups” 

develop each IARC Monograph after reviewing “all pertinent 

epidemiological studies and cancer bioassays in experimental 

animals,” as well as mechanistic and other relevant data. The 

“agents,” or substances, reviewed in the IARC Monographs are 

characterized based on level of carcinogenicity, and “Group 1” 

agents are those known to cause cancer in humans.7

In her papers opposing defendants’ motions to exclude Dr. 

Egilman’s opinion that fibrous talc causes mesothelioma, plaintiff 

identified specific IARC literature upon which Dr. Egilman 

relied. Plaintiff pointed to IARC Supplement 7, which listed “talc 

containing asbestiform fibres” as a “Group 1” agent, mentioning 

the occurrence of mesothelioma and lung cancers, and listed “talc 

not containing asbestiform fibres” as a “Group 3” agent.8

Plaintiff also pointed out that Dr. Egilman relied on IARC 

Monograph 93. That Monograph, published in 2010, included 

Plaintiff’s attachment of a few pages of an incomplete article is 

not, by itself, sufficient to establish a reliable, supportive source 

for Dr. Egilman’s opinion. 

7 “The term ‘agent’ refers to any entity or circumstance that 

is subject to evaluation in a Monograph,” and includes chemicals, 

groups of related chemicals, complex mixtures, occupational or 

environmental exposures, cultural or behavioral practices, 

biological organisms, and physical agents.

8 The “Group 3” category “is used most commonly for agents 

for which the evidence of carcinogenicity is inadequate in humans 

and inadequate or limited in experimental animals.”
17

review of the agent denominated “talc not containing asbestos or 

asbestiform fibres.” IARC Monograph 93 stated that “talc not 

containing asbestiform fibres” had previously been reviewed in 

IARC Supplement 7, and the review in IARC Monograph 93 

superseded the prior review. IARC Monograph 93 explained, 

“The review of talc in Supplement 7 led to evaluations for two 

agents: talc containing asbestiform fibres and talc not containing 

asbestiform fibres. The term ‘asbestiform fibre’ has been 

mistaken as a synonym for ‘asbestos fibre’ when it should be 

understood to mean any mineral, including talc, when it grows in 

an asbestiform habit. To avoid confusion over the term 

‘asbestiform fibre’, the present Working Group decided that it is 

scientifically more precise to call the agent ‘talc not containing 

asbestos or asbestiform fibres’, and this evaluation supersedes 

the earlier review of talc not containing asbestiform fibres.” 

(Italics added.) IARC Monograph 93 continued, “The present 

Working Group also decided to expand the name of the Group-1 

agent from ‘talc containing asbestiform fibres’ to ‘talc containing 

asbestos or other asbestiform fibres’. The present Working Group 

reviewed the earlier Monograph on talc containing asbestiform 

fibres and determined that the expanded name is consistent with 

what had been evaluated in Supplement 7. No update was 

undertaken for this Group-1 agent.”9

9 Citing Dr. Egilman’s deposition testimony from another 

case, defendants argue for the first time on appeal that Dr. 

Egilman’s definition of “fibrous talc” differs from IARC’s 

characterization because Dr. Egilman purportedly does not mean 

talc formed in asbestiform habit. But the record contains 
18

Disagreeing that the IARC classified asbestiform talc as a 

Group 1 agent, defendants cite to IARC Monograph 100C, 

published in 2012, which includes an update on asbestos. 

Defendants point to the following statement in IARC Monograph 

100C: “For talc that contains asbestiform fibres, previous 

Working Groups assessed studies on talc described as containing 

asbestiform tremolite and anthophyllite (IARC, 1987a, b). These 

fibres fit the definition of asbestos, and therefore a separate 

review of talc containing asbestiform fibres was not undertaken 

by this Working Group.”10 Defendants assert that the IARC 

additional deposition testimony from Dr. Egilman wherein he 

clarified that he did not believe that platy talc caused 

mesothelioma, but “fibrous talc,” meaning talc that forms as true 

asbestiform fibers, caused cancer.

10 The IARC Monograph also points the reader to the 

“General Remarks.” Therein, IARC Monograph 100C states, 

“The previous IARC Monographs on Talc Containing Asbestiform 

Fibres (Volume 42 and Supplement 7, IARC, 1987a, b) concerned 

talc described as containing asbestiform tremolite and 

anthophyllite. These fibres fit the definition of asbestos and 

therefore a separate review of talc containing asbestiform fibres 

was not undertaken. The studies on talc containing asbestiform 

fibres were considered when developing the Monograph on 

asbestos. Talc containing asbestos as well as other mixtures 

containing asbestos should be regarded as carcinogenic to 

humans. [¶] In evaluating the carcinogenicity of asbestos fibres, 

the Working Group evaluated experimental data using the six 

types of asbestos fibres (Chrysotile, Amosite, Crocidolite, 

Tremolite, Actinolite and Anthophyllite) and erionite based on in 

vitro cellular assays and/or cancer bioassays. It should be 

understood that minerals containing asbestos in any form should 

be regarded as carcinogenic to humans. The Working Group 

agreed that the most important physicochemical properties of 

asbestos fibres relevant for toxicity and carcinogenicity are 

surface chemistry and reactivity, surface area, fibre dimensions, 
19

never analyzed the effects of talc containing “asbestiform fibres,” 

but not asbestos. 

At least based on the information before it, the trial court 

could reasonably conclude that Dr. Eligman’s opinion had some 

support in materials from the IARC. The IARC Working Group

for Monograph 100C reviewed prior Monographs and concluded 

the Group 1 agent deemed carcinogenic in IARC Supplement 7 

was talc with asbestiform tremolite and anthophyllite. In 

contrast, in its review of IARC Supplement 7, the Working Group 

for IARC Monograph 93 opined that the studies and Supplement 

7 supported the conclusion that the broader agent “talc 

containing asbestos or asbestiform fibres” was a Group 1 agent, 

expressly defining “asbestiform fibres” to include talc growing as 

fibers in an asbestiform habit. Defendants did not address the 

apparent conflict in how Monographs 93 and 100C construed 

Supplement 7, nor did they attempt to resolve it. The trial 

court’s gatekeeping role does not involve choosing between 

competing expert opinions (Sargon, supra, 55 Cal.4th at p. 772), 

and there was no request for an evidentiary hearing on Dr. 

Egilman’s opinion in motion in limine No. 4A.

In addition, Dr. Egilman relied on a statement made in a 

published letter to the editor of an academic journal by two 

doctors who maintained that talc should not be used for 

and biopersistence. Extrapolation of toxicity to other crystalline 

mineral fibres should not be done in the absence of 

epidemiological or experimental data based on in vitro and in 

vivo assays.” (Italics removed.)
20

pleurodesis in non-malignant patients because “[e]ven if the 

product [i.e., the talc] is ‘asbestos-free,’ the mechanism of cancer 

induction by asbestos (i.e., metal-catalyzed radical generation) is 

similarly pertinent to talc and the occurrence of fibrous forms of 

the sheet silicate itself (Figures EI and E2 in the online data 

supplement to this letter) raises issues about clearance and longterm safety.” The tone of the doctors’ letter is cautionary, but its 

substance reflects two scientists expressing their opinion that the 

mechanism of cancer induction by asbestos is similarly pertinent 

to fibrous talc.

Dr. Egilman also cited animal studies that support his 

opinion. He stated, “Animal studies show that talc, including 

fibrous talc, is significantly correlated with lung lesions, and talc 

fibers have repeatedly been found in cancer tissue,” and he 

described one such study. He further stated that Dr. Boorman, 

an employee of the National Institutes of Environmental Health 

Sciences, reviewed a National Toxicology Program (NTP) study of 

talc on rats and mice, and Dr. Boorman found “talc fibers” in “the 

lungs of exposed rodents, some of whom developed cancer.” Dr. 

Egilman reported that J&J subsequently pressured Dr. Boorman 

to change the term “talc fiber” to “talc particle” in the published 

report, and he went on to state, “The NTP study reported a 

statistically significant association in female rats between all 

types of lung cancers and the highest levels of talc exposure.” On 

appeal, citing deposition testimony from one of its corporate 

witnesses admitted at trial, J&J states that the NTP symposium 

concluded the opposite—that “talc was not a causative effect in 
21

the cancer of any rats that got cancer.” But neither defendant 

offered that testimony or similar evidence at the in limine stage. 

Finally, Dr. Egilman stated that “[h]uman case reports also 

support the carcinogenicity of fibrous talc,” he named the three 

supporting case reports, and defendants did not address this 

material in the trial court.

In sum, the materials plaintiff presented to the trial court 

in support of Dr. Egilman’s fibrous talc testimony, at least some 

of which defendants failed to address, provided a reasonable 

basis for the opinion at issue, and we cannot say the court abused 

its discretion in admitting this testimony. While defendants 

maintain that the broader consensus of experts do not believe 

that fibrous talc causes cancer, they sought to exclude Dr. 

Egilman’s testimony under Sargon, which does not speak to 

whether a theory has achieved a consensus in the field sufficient 

to render it “generally accept[ed].” (Cf. Sargon, supra, 55 Cal.4th 

at p. 772, fn. 6, citing People v. Leahy (1994) 8 Cal.4th 587, 604 

and People v. Kelly (1976) 17 Cal.3d 24 [admissibility of evidence 

obtained by use of a new scientific technique depends upon 

whether technique is generally accepted as reliable in relevant 

scientific community].)11 On this record, the court did not abuse 

11 To the extent that defendants now contend that the trial 

court should have excluded Dr. Egilman’s fibrous talc opinion 

because it was a novel theory not generally accepted within the 

relevant scientific community, we emphasize that their motion to 

exclude did not challenge his testimony based on Kelly and its 

progeny. We express no view on whether such an argument 

would have been successful. (Compare People v. Davis (2022) 

75 Cal.App.5th 694, 711 [“The Kelly test applies only to expert 
22

its discretion in permitting Dr. Egilman to offer his opinion that 

fibrous talc causes mesothelioma. 

Any Evidentiary Error Was Harmless

Even if the court erred in allowing Dr. Egilman’s fibrous 

talc theory, the error was not prejudicial. Defendants argue that 

Dr. Egilman’s opinion that fibrous talc could cause mesothelioma 

was prejudicial because it allowed the jury to sidestep deciding 

whether the talc products Schmitz used were contaminated with 

the asbestiform variety of the six relevant minerals. Defendants 

analogize to a recent New Jersey opinion reversing a plaintiff’s 

verdict in a case involving JBP and another J&J talcum powder 

where the court found a deficient scientific foundation for expert 

testimony that non-asbestiform cleavage fragments of the six 

relevant asbestos minerals can cause mesothelioma. (Lanzo v. 

Cyprus Amax Minerals (N.J. Sup. 2021) 254 A.3d 691 [467 

N.J.Super. 476, 487, 517–518].) As set forth post, in light of our 

review of the record and Dr. Egilman’s introduction of the opinion 

that Lanzo rejected as unsound—to which defendants here did 

testimony ‘ “ ‘ “based, in whole or in part, on a technique, process, 

or theory which is new to science and, even more so, to the law” ’ ” 

’ ”; italics added] with Roberti v. Andy’s Termite (2002) 113 

Cal.App.4th 893, 901–902 [reversing trial court’s exclusion of 

expert opinion testimony that pesticide caused plaintiff’s autism; 

“[Plaintiff’s experts] did not rely upon any new scientific 

technique, device or procedure that has not gained general 

acceptance in the relevant scientific or medical community. 

Rather it was the theory of causation, that [the pesticide] caused 

plaintiff’s autism, that has not gained general acceptance in the 

relevant medical community. The Kelly test is not applicable 

even though the proffered evidence presents a new theory of 

medical causation”], italics added.)
23

not object—we perceive no prejudice from the admission of his 

opinion as to fibrous talc. (Cassim v. Allstate Ins. Co. (2004) 

33 Cal.4th 780, 804 [error in evidence admission is reversible if 

there is a reasonable probability, or a reasonable chance, 

appellant would have obtained a more favorable result].)

In opening argument, plaintiff promised to challenge Dr. 

Mossman’s “cleavage fragment hypothesis” that non-fibrous 

asbestos cleavage fragments do not cause cancer or disease, and 

plaintiff argued that fibrous talc causes cancer. Defense counsel 

countered that Dr. Mossman would explain that talc and 

cleavage fragments do not cause mesothelioma. 

During the testimony phase, Dr. Mossman opined that, 

based on her in vitro experiments, non-asbestos cleavage 

fragments and fibrous talc do not have the capacity to generate 

the chemical signals that cause mesothelioma, as asbestos does. 

Dr. Weill testified the body can destroy cleavage fragments, 

whereas it cannot do the same for asbestiform particles of the six 

asbestos minerals, although he conceded the French government 

released a paper disagreeing with his conclusion. As set forth 

above, Dr. Egilman testified that cleavage fragments cause 

mesothelioma, as does fibrous talc. To the cleavage fragment 

issue, Dr. Abraham added that research suggesting that a 

tremolite cleavage fragment cannot cause asbestos disease 

“doesn’t make any sense,” although he recognized there were no 

pure cleavage fragment studies showing that such fragments 

cause mesothelioma. And Dr. Sanchez testified that the particles 

Dr. Longo identified in the JBP and Cashmere Bouquet samples 
24

he tested were amphibole cleavage fragments that Dr. Longo 

misidentified as asbestiform fibers. 

In closing argument, plaintiff argued she had proven all 

she had promised in her opening statement, and she argued that 

case reports were significant to show causation. Plaintiff 

discredited Dr. Mossman’s “cleavage fragment doesn’t hurt 

defense” by arguing that Mossman was biased to the talc 

industry, and she never tested cosmetic talc. Plaintiff argued 

that asbestiform talc causes mesothelioma. Defendants, in turn, 

argued amphibole cleavage fragments are not asbestos; Dr. 

Mossman’s studies show that amphibole cleavage fragments and 

talc particles do not cause mesothelioma; and Dr. Longo 

identified cleavage fragments in his testing.

On this record, defendants have not established prejudice. 

They contend that prejudice was plain because, if the jury 

believed Dr. Egilman’s opinion on fibrous talc, it may have 

concluded that the asbestiform/non-asbestiform distinction did 

not matter, and might therefore have reached a verdict without 

finding defendants’ products were contaminated with the 

asbestiform variety of the six asbestos minerals. But defendants 

did not object to the introduction of testimony that cleavage 

fragments cause mesothelioma, this theory was advanced 

similarly to the fibrous talc theory, and defendants’ own expert 

told the jury that Dr. Longo misidentified amphibole cleavage 

fragments in defendants’ products as asbestiform fibers. Indeed, 

Colgate concedes in its briefing that Dr. Egilman’s views “about 
25

cleavage fragments are indistinguishable from his views about 

fibrous talc.”12 

Defendants fail to show prejudice from Dr. Egilman’s 

testimony regarding fibrous talc for the additional reason that 

they did not object to Dr. Abraham’s testimony suggesting that 

fibrous talc causes mesothelioma. When asked whether it is 

difficult to answer the question of whether, for example, fibrous 

talc causes mesothelioma because it co-exists with asbestos fibers 

in the same mines, Dr. Abraham confirmed that was the case. 

He did concede that he had not seen any evidence that 

“nonasbestos fibers” cause mesothelioma, and he had only 

“attributed mesothelioma to asbestos exposure.” Nonetheless, in 

response to a question about whether he had studied the ability 

of fibrous talc to cause inflammation and irritation in human cell 

tissue, Dr. Abraham testified: “Yes. I mean, in the people that 

have a lot of the fibrous talc exposure, especially with the 

noncosmetic talc, the industrial talcs, they develop lung fibrosis 

that looks like asbestosis because there’s so much fibrous talc in 

the—in those mines in some of those industrial talc products. 

And some of them have developed mesotheliomas as well.” 

Furthermore, without objection, Dr. Abraham confirmed that in a 

1997 report in a mesothelioma case allegedly caused by JBP, he 

wrote that he had “previously reviewed several cases of 

mesothelioma apparently related to asbestiform talc fibers.”

12 At oral argument, plaintiff’s counsel stated that no 

expert testified that cleavage fragments cause mesothelioma, but 

the record does not support that assertion.
26

In sum, defendants fail to show reversible prejudice from 

the admission of Dr. Egilman’s testimony that fibrous talc can 

cause mesothelioma. 

C. Chain of Custody for Cashmere Bouquet Samples

Additional Background

Colgate’s motion in limine No. 1 attacked the “purported 

testing of talc by [p]laintiff’s testing experts.” Colgate asserted 

that Dr. Longo could not authenticate the 38 samples of 

Cashmere Bouquet that came from various plaintiffs’ attorneys, 

who in turn obtained them from: the internet or antique shops; 

Colgate-provided vintage containers collected by employees that 

were displayed as memorabilia at Colgate facilities; and an 

asbestos laboratory at the Mount Sinai School of Medicine. 

Colgate’s main argument for excluding the test results for the 38 

samples was that an expert cannot reasonably rely on test results 

of samples that are not adequately shown to reflect or represent 

the items in question. In a single sentence in its motion, Colgate 

mentioned that Dr. Longo had recently reported on 20 additional 

Cashmere Bouquet samples, but Colgate stated that, at that 

time, it had no information about how those samples were 

obtained. Plaintiff opposed the motion, arguing there was no 

physical evidence of tampering on the containers; many of the 

containers were unopened; and the asbestos types found in the 

samples were not used commercially, thus refuting a claim of 

ambient air contamination. The court denied the motion, 

determining that Colgate’s objections went to weight, not 

admissibility. 
27

On the same day the court heard motion in limine No. 1, 

Colgate filed motion in limine No. 3A targeting various aspects of 

Dr. Longo’s opinion and including a request for exclusion of his 

testing of “unauthenticated containers of Cashmere Bouquet.” 

Therein, Colgate repeated its lack of reliability and 

authentication objections to the 38 Cashmere Bouquet samples 

discussed in motion in limine No. 1. Colgate also mentioned that 

Dr. Longo had produced a report on testing of 20 additional 

Cashmere Bouquet samples the day Colgate filed motion in 

limine No. 1, and, in a footnote, stated, “Given the timing of 

[p]laintiff’s disclosure of this testing, Colgate hereby incorporates 

the same challenges to the authenticity of these [20] samples as 

incorporated in Colgate’s Motion in Limine No. 1.” (Italics 

removed.)

At the subsequent hearing on motion in limine No. 3A, 

Colgate told the court that motion in limine No. 3A was “a really 

focused motion,” and Colgate’s concern was with Dr. Longo’s 

extrapolation opinion, not the results of the specific samples that 

he tested. Colgate’s counsel explained: “I don’t have a concern 

with Dr. Longo speaking about the testing that he personally did, 

but where it becomes problematic is when he attempts to 

extrapolate from his own handful—subset of testing that he’s 

done to try to say whether or not what the plaintiff used was 

contaminated and at what levels specifically. . . . [¶] And so, 

again, I’ve got no problem with him coming in here and talking 

about the samples he’s tested. It’s well within—well within his 

realm.” 
28

Analysis

Expert testimony regarding the features of an examined or 

tested item may be excluded on the basis of a so-called “ ‘chain of 

custody’ ” claim. (People v. Catlin (2001) 26 Cal.4th 81, 134.) The 

crux of such a claim is that the expert testimony relies on tests of 

a sample not adequately shown to reflect or represent the item in 

question. “In a chain of custody claim, ‘ “[t]he burden on the 

party offering the evidence is to show to the satisfaction of the 

trial court that, taking all the circumstances into account 

including the ease or difficulty with which the particular evidence 

could have been altered, it is reasonably certain that there was 

no alteration. [¶] The requirement of reasonable certainty is not 

met when some vital link in the chain of possession is not 

accounted for, because then it is as likely as not that the evidence 

analyzed was not the evidence originally received. Left to such 

speculation the court must exclude the evidence. [Citations.] 

Conversely, when it is the barest speculation that there was 

tampering, it is proper to admit the evidence and let what doubt 

remains go to its weight.” [Citations.]’ ” (Id., at p. 134.) 

Colgate maintains the trial court abused its discretion by 

denying motion in limine No. 1 and allowing Dr. Longo to testify 

that he found asbestos in 38 vintage bottles of Cashmere Bouquet 

obtained from third-party sources. Assuming, without deciding, 

that Colgate is correct and that the trial court abused its 

discretion in denying motion in limine No. 1, for the reasons set 

forth post, Colgate fails to establish reversible prejudice.
29

In addition to the 38 vintage talc samples, Dr. Longo tested 

the set of 20 Cashmere Bouquet samples his laboratory obtained 

from Colgate’s defense laboratory, to which defendants have not 

preserved any evidentiary challenge. (See People v. Morris (1991) 

53 Cal.3d 152, 190 [a motion in limine is sufficient to preserve 

objection if it is directed to a particular, identifiable body of 

evidence; states a specific legal ground for exclusion; and is made 

at a time before or during trial when the trial court can 

determine the evidentiary issue in its appropriate context], 

disapproved on other grounds by People v. Stansbury (1995) 

9 Cal.4th 824, 830, fn.1; Evid. Code, § 353.) Colgate’s first 

motion, including the rationale for exclusion therein, was 

directed to the 38 samples. Colgate relegated to a footnote its 

objections to the second set of 20 samples, which was insufficient 

to preserve the evidentiary objection. (See Evid. Code, § 353, 

subd. (a).) And in any event, Colgate waived any such objection 

to these 20 samples at the hearing on motion in limine No. 3A by 

stating that it had no concern regarding Dr. Longo telling the 

jury about the results for the testing that he actually performed. 

Contesting waiver, Colgate points to a generic “foundation” 

objection that it made at trial after Dr. Longo was asked whether 

Cashmere Bouquet historically included asbestos, considering his 

historical review of company documents, his review of the 

scientific literature, and his testing of Cashmere Bouquet. But 

this too was insufficient to preserve an objection specific to the 20 

samples. “[W]here the objection is lack of proper foundation, 

counsel must point out specifically in what respect the foundation 
30

is deficient.” (People v. Moore (1970) 13 Cal.App.3d 424, 434, 

fn. 8.) Colgate’s objection did not specifically inform the trial 

court that it was raising an authenticity objection to the most 

recent 20 samples Dr. Longo tested, and, up to that point, it had 

not indicated that it was objecting to Dr. Longo’s reliance on 

those 20 samples. 

Dr. Longo detected asbestos in all twenty samples from 

Colgate’s laboratory, and he relied on these results. 

Furthermore, evidence of asbestos contamination in Cashmere 

Bouquet was corroborated by certain historical documents upon 

which Dr. Longo also relied. Accordingly, we cannot conclude, 

without more, that it is reasonably probable the jury would have 

reached a different result had Dr. Longo’s testimony regarding 

the set of 38 samples been excluded. (See Soule v. General 

Motors Corp. (1994) 8 Cal.4th 548, 574 (Soule).)

D. The Exposure Opinions

Defendants argue that Dr. Longo’s exposure opinion should 

have been excluded, and Colgate makes a similar argument as to 

Dr. Egilman’s exposure calculation. We address these arguments 

in turn.

Dr. Longo

a. Additional Background 

As noted above, Colgate filed motion in limine No. 3A to 

prevent Dr. Longo from opining that Schmitz had substantial 

exposure to asbestos from Cashmere Bouquet. The thrust of its 

argument was that Dr. Longo could not opine that Schmitz had 

substantial exposure to asbestos because he did not perform any 
31

scientific, mathematical, or statistical analysis to support his 

conclusion that she used contaminated product. Colgate asserted 

that Dr. Longo did not test the talc Schmitz used, he allegedly 

conceded there was no generally accepted basis for extrapolating 

an asbestos concentration in a bulk sample to an airborne 

concentration, and he did not perform any “actual statistical 

analysis” to permit him to draw a conclusion about the 

probability of the products Schmitz used containing asbestos 

(hence, he was merely guessing). 

At the hearing on the motion, which was postponed at 

Colgate’s request and held right before Dr. Longo was set to 

testify, Colgate represented that its motion was “targeted,” and 

reiterated its claim that Dr. Longo had not done anything 

“scientifically, whether it’s some sort of analysis or calculation, 

whether it be mathematical or statistical or anything at all, that 

allows him to make the jump from the small subset of samples 

that he has tested to the—to the entire product line or even to the 

products that Ms. Schmitz used. There’s simply nothing there . . 

. . [¶] And so if we’re going to keep him to—if we are going to keep 

him in his lane and have him talk about his samples that he has 

looked at personally, no problem. But as soon as he makes that 

jump to what Ms. Schmitz used and whether that’s appropriate, I 

think it’s not, and I don’t think it’s supported.” J&J joined 

Colgate’s argument.

Plaintiff responded that she assumed Colgate had provided 

Dr. Longo’s exposure report to the court. She argued that Dr. 

Longo relied on his own testing and the historical documents, 
32

and, under Lyons v. Colgate-Palmolive Co. (2017) 16 Cal.App.5th 

463 (Lyons), he could render an opinion without testing the 

bottles Schmitz used. Colgate responded that nothing in Dr. 

Longo’s background allowed him to make the statistical leap 

about what Schmitz may have used, and “[h]e, himself, testified 

at his deposition that the reason he gets from his subset of 58 

samples to what Ms. Schmitz used was because he took the 

number of positives, divided it by the total number of samples he 

tested, and says, ‘Well, that’s the percentage. I’m going to be a 

little bit conservative, because there’s some nondetects’—and he 

tested some samples where he found nothing, by the way—and 

then he says, ‘I’m going to take that percentage and apply it to 

the universe of products.’ [¶] That’s—that’s not expertise, Your 

Honor. I could do that for anything.” The court denied the 

motion.

At trial, Dr. Longo opined that, based upon his review of 

historical company documents, scientific literature, and his 

laboratory’s testing, Cashmere Bouquet and JBP historically 

included asbestos. The court overruled Colgate’s “foundation” 

objection as Dr. Longo gave this opinion about Cashmere 

Bouquet. Dr. Longo stated he had evaluated Schmitz’s exposure 

to Cashmere Bouquet and JBP, and it was his opinion that she 

was exposed to asbestos from the use of both. Later in his 

testimony, Dr. Longo opined that Schmitz had significant 

exposure to cosmetic talcum powder from J&J and Colgate, and, 

using an IARC figure for ambient asbestos, “based on [his] 

testing, based on historical documents, based on the percentages 
33

that we find positive, it’s my opinion that more likely than not, 

when she used any of these products . . . that she would have had 

a significant exposure to airborne asbestos—and it’s interesting—

significantly over background, even though there is no 

background of tremolite/anthophyllite in the natural 

environment, unless there is a source.” The court overruled 

J&J’s objection that Dr. Longo was not an expert in statistics as 

he gave this last opinion. Shortly thereafter, over Colgate’s 

“foundation” objection, Dr. Longo testified that Schmitz had 

significant exposures above background to asbestos from 

Cashmere Bouquet.

b. Analysis 

Colgate argues that the judgment must be reversed for two 

reasons. First, it contends that Dr. Longo had no basis to 

extrapolate from his bulk testing of Cashmere Bouquet samples 

to “any airborne asbestos exposure by Schmitz.” Second, citing 

Sargon, Colgate argues there was too large an analytical gap 

between Dr. Longo’s data sources and his conclusion that 

Schmitz had significant exposure to asbestos from Cashmere 

Bouquet. J&J argues that Dr. Longo failed to test the talc 

Schmitz used and that his opinion regarding Schmitz’s exposure 

to JBP suffers from an insurmountable analytical gap similar to 

that of his opinion as to Cashmere Bouquet. As set forth post, 

defendants fail to establish reversible error.

Colgate’s first argument lacks merit because Colgate failed 

to establish that Dr. Longo had no basis to opine on airborne 

exposure. Colgate mentioned airborne exposure in its motion in 
34

limine in one sentence, citing to Dr. Longo’s deposition testimony 

from another case wherein he conceded that no generally 

accepted basis for extrapolation from bulk testing to an airborne 

exposure level exists because it depends on what one does with 

the material. In the submitted material, Dr. Longo also testified 

that a study could be performed, and he cited one for Cashmere 

Bouquet done by MVA/Dr. Gordon. Colgate did not submit Dr. 

Longo’s exposure summary for Schmitz with its motion or discuss 

Dr. Longo’s airborne exposure opinion in this case, which, looking 

to his summary judgment declaration, appeared to include the 

opinion that background air does not generally contain 

measurable amounts of anthophyllite or tremolite fibers, so any 

exposure to these fibers in Cashmere Bouquet would be 

substantially above background. And Dr. Longo’s bulk testing 

reports from this case cited the Gordon study and MVA 

materials. Thus, based on the materials before it, the trial court 

did not abuse its discretion in failing to exclude Dr. Longo’s 

exposure opinion. Furthermore, when Dr. Longo first testified at 

trial that Schmitz would have had significant, above-background 

airborne exposure to asbestos from “any of these products,” 

including Cashmere Bouquet, Colgate did not object. 

Next, the trial court did not abuse its discretion in rejecting 

Colgate’s argument that Dr. Longo failed to use accepted 

scientific principles to reach his conclusion that the Cashmere 

Bouquet products used by Schmitz contained asbestos. In 

response to Colgate’s motion to exclude Dr. Longo’s opinion, 

plaintiff pointed to Lyons, supra, 16 Cal.App.5th 463, and argued 
35

that Dr. Longo had relied on his own testing and historical 

documents, and he could render an opinion without testing the 

bottles Schmitz used. 

In Lyons, the appellate court reversed the trial court’s 

grant of summary judgment in a case where plaintiff Lyons 

developed mesothelioma after using Cashmere Bouquet from the 

early 1950s to the early 1970s. (Lyons, supra, 16 Cal.App.5th at 

p. 465.) Lyons presented a declaration from an expert 

minerologist, Mr. Fitzgerald, reporting positive test results for 

asbestos in raw talc taken from three talc mines used for 

Cashmere Bouquet and in bulk testing of Cashmere Bouquet. 

(Id. at pp. 465–467.) Colgate argued that Fitzgerald’s declaration 

supported nothing more than a possibility of some asbestos in 

some retail Cashmere Bouquet at some time, which left to 

conjecture whether the talcum product Lyons used exposed her to 

asbestos. (Id. at pp. 467–468.) Colgate further argued that 

Fitzgerald had not tested the product Lyons used, and his 

generally stated opinion as to the presence of asbestos in all 

Cashmere Bouquet lacked foundation. (Ibid.) The appellate 

court saw no basis for the evidentiary attack. It pointed to 

Fitzgerald’s opinion that “the evidence that talc from all three 

mines used in the manufacture of Cashmere Bouquet contained 

asbestos, repeatedly found in multiple tests and studies 

conducted before, during and after the 1950 to 1970 time period, 

coupled with plaintiff’s use of the product over those 20 years, 

particularly in the absence of evidence of any other source of the 

asbestos causing plaintiff's mesothelioma, creates more than an 
36

unsupported possibility.” (Id. at p. 469.) “Rather, there is a 

sufficient basis for the ‘inference[ ] reasonably deducible from the 

evidence’ that all or most of the Cashmere Bouquet that plaintiff 

used almost daily for 20 years contained harmful asbestos.” 

(Ibid.)

In Strobel, supra, 70 Cal.App.5th 796, a different panel of 

this Division similarly found there to be a triable issue of fact 

regarding causation where the plaintiff alleged that his JBP use 

from 1951 to 2014 caused mesothelioma. (Id. at pp. 800–801, 

811.) Expert declarations reported asbestos in the Italian and 

Vermont talc ore used for JBP, and Mr. Fitzgerald opined that 

the geology of the Chinese talc mine also used for JBP was such 

that it would contain asbestos. (Id. at pp. 807–808.) In support 

of his conclusion that JBP contained asbestos, Fitzgerald relied 

upon accepted source material in the field—published materials 

from government agencies, academic articles, and published 

reports of historical testing, including a 1972 study by Lewin and 

a 1976 study by Rohl and Langer finding asbestos in JBP, and an 

FDA report finding asbestos in JBP manufactured from Chinese 

talc; Fitzgerald also relied on four of five of his own tests showing 

that JBP before 1951 contained asbestos. (Id. at pp. 822–826.) 

Strobel rejected J&J’s argument that there was too great an 

evidentiary gap between the data and Fitzgerald’s opinion. 

(Ibid.) The court found that Fitzgerald “formulated his opinion 

based upon principles generally accepted in his area of expertise 

and . . . applied those principles upon a proper evidentiary 

foundation,” and “fairly dr[ew] the inference . . . that JBP of a 
37

vintage dating from within the exposure period contained 

asbestos.” (Id. at pp. 823, 815.) 

Considering Lyons, Strobel, and the record before the trial 

court, Colgate has not established that the court abused its 

discretion in failing to exclude Dr. Longo’s opinion under Sargon. 

Colgate argued that Dr. Longo could not go beyond his testing 

because he did not utilize scientific principles to conclude that 

Schmitz used contaminated product, but plaintiff pointed out 

that Dr. Longo relied on his testing and historical documents 

similar to the expert in Lyons. And, in the month prior to the 

hearing on the motion in limine, Dr. Longo had listed some of the 

materials on which he relied with his summary judgment 

declaration, including the 1972 Lewin and 1976 Rohl and Langer 

studies referenced in Strobel.13 Colgate argued that Dr. Longo’s 

opinion encompassed the entire “universe” of Cashmere Bouquet 

products, but the deposition testimony Colgate submitted 

suggested that Dr. Longo had concluded that it was more likely 

than not the Cashmere Bouquet products for the years he tested

contained asbestos. On this record, the court acted within its 

discretion in rejecting Colgate’s request for wholesale exclusion 

on the basis that Dr. Longo had not used any reliable principles 

to formulate his opinion that Cashmere Bouquet used by Schmitz 

contained asbestos.

13 Colgate used talc from Italy, North Carolina, and 

Montana for Cashmere Bouquet. Dr. Longo had positive results 

from Cashmere Bouquet samples from before 1968 made with 

Italian talc, and from samples in the 1970s when Colgate was 

using mixes of North Carolina and Montana talc.
38

Colgate now argues on appeal that data underlying Dr. 

Longo’s opinion suffered from “serious problems,” causing too 

great an analytical gap between the data and the opinion 

proffered, but Colgate does not show that it raised any of these 

specific arguments to the court below.14 (Evid. Code, § 353, 

subd. (a) [requiring timely and specific objection].) 

Furthermore, to the extent that Dr. Longo’s opinion at trial 

stretched beyond the years represented by the samples he tested, 

Colgate cannot show prejudice. Toward the end of his direct 

testimony, the court allowed Dr. Longo to opine over Colgate’s 

“foundation” objection that Schmitz had significant exposures 

above background to asbestos from Cashmere Bouquet. But this 

was only after Dr. Longo had testified without objection from

Colgate that “based on [his] testing, based on historical 

documents, based on the percentages that we find positive, it’s 

my opinion that more likely than not, when she used any of these 

products [Cashmere Bouquet, JBP, and Avon’s products] . . . that 

she would have had a significant exposure to airborne asbestos—

and it’s interesting—significantly over background, even though 

there is no background of tremolite/anthophyllite in the natural 

14 Colgate stated in conclusory fashion in motion in limine 

No. 3A that Dr. Longo “merely guess[ed]” that Schmitz was 

exposed to asbestos, referencing purported deposition testimony 

of Dr. Longo where he allegedly admitted that he assumed his 

samples were representative, but even that reference was 

unsupported, as the materials submitted with the motion do not 

contain the alleged testimony. 
39

environment, unless there is a source.”15 Putting aside the 

generic nature of Colgate’s “foundation” objection (People v. 

Moore, supra, 13 Cal.App.3d at p. 434, fn. 8), any failure to 

exclude the testimony Colgate objected to was harmless in light 

of the fact that Dr. Longo had already testified that Schmitz 

would have had significant exposure to airborne asbestos over 

background when she used any of the Cashmere Bouquet, Avon, 

or JBP cosmetic talc products. 

J&J suggests on appeal, as was argued in motion in limine 

No. 3A, that Dr. Longo’s opinion on plaintiff’s exposure to 

asbestos was inadmissible because he did not test the cosmetic 

talc from bottles Schmitz actually used. But we are not aware of 

any such burden. (See Lyons, supra, 16 Cal.App.5th at p. 468 

[“[t]he absence of the packaging and testing of the very container 

that plaintiff used is hardly sufficient reason to reject the 

testimony identifying the product that she used, combined with 

the expert testimony that all of that product contained 

‘significant concentrations of airborne asbestos’ ”]; Strobel, supra, 

70 Cal.App.5th at pp. 801, 827 [finding triable issue of fact on 

causation without evidence of testing of talc containers plaintiff 

actually used].)

Like Colgate, J&J also attempts on appeal to attack the 

data set Dr. Longo relied on to render his opinion that Schmitz 

used JBP contaminated by asbestos. But, as plaintiff points out, 

15 J&J objected to Dr. Longo’s qualifications here, stating, 

“He’s not an expert in statistics.” It does not pursue a 

qualification objection on appeal.
40

J&J’s sole objection to Dr. Longo’s trial testimony was that he 

was not an expert in statistics. J&J does not dispute this, 

instead claiming that its joinder in motion in limine No. 3A was 

sufficient to preserve its claims for appeal. But Colgate never 

argued below that there was too large an analytical gap between 

the JBP samples Dr. Longo tested and his resulting opinion with 

respect to JBP. J&J has thus not preserved the claim on appeal. 

(Evid. Code, § 353, subd. (a).) 

Dr. Egilman

Colgate next argues that the court should have excluded 

Dr. Egilman’s exposure opinion regarding how many asbestos 

fibers Schmitz inhaled in her lifetime because he simply took the 

percentage positive from Dr. Longo’s testing and assumed the 

same percentage applied to all the cosmetic talc containers 

Schmitz used. Even assuming Dr. Egilman should not have been 

able to testify that Schmitz inhaled 42 to 61 billion asbestos 

fibers in her lifetime, Colgate does not establish prejudice. 

As presented, the thrust of Colgate’s prejudice argument is 

that Egilman’s opinion was prejudicial because it provided 

testimony about Schmitz’s substantial exposure to asbestos. But 

Colgate makes the same argument for Dr. Longo’s exposure 

testimony, and we have found no reversible error in the 

admission of his testimony, including his testimony that it was 

more likely than not that, each time Schmitz used defendants’

products, she was exposed to asbestos. Furthermore, plaintiff’s 

medical experts opined that there is no known safe level of 

exposure to asbestos. Drs. Abraham and Egilman testified about 
41

cases where people developed mesothelioma after only one day of 

asbestos exposure. Dr. Egilman testified that “the amount of 

asbestos it takes to cause cancer is really, really low,” and he 

rejected defense counsel’s suggestion that, if you kept exposure 

levels below threshold limit values, you would not expect to see 

cancer. Drs. Horn and Abraham further stated that 

mesothelioma is dose-dependent, with every inhalation 

increasing the risk of disease. Plaintiff argued the “no safe 

exposure” theory, referring to all the doctors’ testimony, and the 

jury’s verdict shows that it rejected the defense experts’ opinions 

that there was no increased risk of mesothelioma at the low 

threshold asbestos exposure levels they expressed in fibers per 

cc/year.16 Given this evidence, Colgate does not show that it is 

reasonably probable the jury would have returned a more 

favorable result for Colgate in the absence of Dr. Egilman’s 

opinion.

II. Causation Instructions

Colgate next contends that the trial court erred by 

instructing the jury with negligence, product liability, and 

concealment instructions that incorporated the asbestos-specific 

16 Dr. Moolgavkar opined that exposure to amphibole 

asbestos of 5 fibers per cc-year would increase the risk. Dr. Weill 

opined there is no scientific evidence that exposure to background 

levels of asbestos elevates the risk of disease, and stated that it 

would take “several hundred fiber-years” of exposure to chrysotile 

asbestos contaminated with tremolite or 35 to 75 fiber-years of 

exposure to tremolite asbestos to increase the risk. Sahmel 

stated there was no scientific evidence of increased risk of 

mesothelioma at OSHA’s allowable lifetime asbestos exposure 

limit of 1.1 fiber per cc-year. 
42

standard of proof for causation set forth in Rutherford v. OwensIllinois, Inc. (1997) 16 Cal.4th 953 (Rutherford). As framed by 

Colgate, the alleged error was allowing the use of Rutherford’s 

“substantial factor in contributing to the risk” language17 to 

describe the burden of proof for causation when Rutherford 

applies only where the theory is that asbestos caused a plaintiff’s 

cancer, not where the theory is that fibrous talc caused 

mesothelioma. 

A. Additional Background

After the parties submitted proposed jury instructions, 

plaintiff proposed modifications to CACI Nos. 400, 406, 431, 1203, 

1205, 1220, 1900 and 1901. J&J filed written objections to these 

modifications, arguing that plaintiff had incorrectly changed the 

CACI text requiring that the wrongful conduct be “a substantial 

factor in causing [plaintiff]’s harm” to a “substantial factor in 

contributing to Patricia Schmitz’s risk of developing 

mesothelioma.” 

At the hearing on the objections, J&J highlighted plaintiff’s 

changes and defense counsel pointed out that the parties had 

agreed on the normal CACI language. Colgate remarked that 

17 CACI No. 435 sets forth this standard and provides, “A 

substantial factor in causing harm is a factor that a reasonable 

person would consider to have contributed to the harm. It does 

not have to be the only cause of the harm. [¶] [Plaintiff] may 

prove that exposure to asbestos from [name of defendant]’s 

[product] . . . was a substantial factor causing [plaintiff’s] illness 

by showing, through expert testimony, that there is a reasonable 

medical probability that the exposure was a substantial factor 

contributing to [plaintiff’s] risk of developing cancer.”
43

plaintiff had introduced a theory that fibrous talc, and not 

asbestos, caused her harm, so Colgate suggested that the parties 

give both CACI 430 and 435 and leave the remaining instructions 

as they normally appear. J&J suggested the same. 

Plaintiff responded that the modified versions provided the 

proper causation standard for two reasons. First, she argued 

that talc that is formed in an asbestiform habit is asbestos. 

Second, she argued that the California Supreme Court held in 

Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71 

(Bockrath), that “in complicated causation standard—complicated 

causation cases involving cancers where, as in Rutherford, you 

cannot isolate the ‘but for’ [cause] of the harm, that the 

Rutherford causation standard is the appropriate standard.” The 

court elected to give plaintiff’s modified jury instructions, stating, 

“[The] CACI 435 causation standard is what we are looking at in 

this case, irrespective of [defendants’] argument about whether or 

not fibrous talc is asbestos or is not asbestos.”

B. Rutherford

In Rutherford, the court addressed a local court rule that 

allowed plaintiffs in asbestos cases tried on a products liability 

theory to request a jury instruction shifting the burden of proof to 

defendants to prove their products were not a legal cause of a 

plaintiff’s injuries, provided the plaintiff first established that the 

defendant manufactured or sold defective asbestos-containing 

products to which plaintiff was exposed, and that plaintiff’s 

exposure to asbestos fibers generally was a legal cause of 

plaintiff’s injury. (Rutherford, supra, 16 Cal.4th at pp. 957–958.) 
44

In rejecting the need for a burden-shifting instruction that ran 

counter to normal causation principles, Rutherford addressed and 

refined both the plaintiff’s burden of proof on causation in 

“asbestos-related cancer” cases, and the corresponding jury 

instructions to be given in such cases. (Id. at pp. 974–983.) 

The court first discussed the limits on the plaintiff’s burden 

of proof, explaining “the medical problems and uncertainties 

accompanying factual proof of causation” in an asbestos-cancer 

case. (Rutherford, supra, 16 Cal.4th at p. 974.) “At the most 

fundamental level, there is scientific uncertainty regarding the 

biological mechanisms by which inhalation of certain microscopic 

fibers of asbestos leads to lung cancer and mesothelioma,” 

including whether a single fiber or multiple fibers cause the 

cancer. (Id. at pp. 974–975.) And there exists an “irreducible 

uncertainty” regarding “which particular fiber or fibers actually 

caused the cancer to begin forming.” (Id. at p. 975.) The court 

also observed that, given the long latency period of asbestosrelated cancers, uncertainty exists as to whether the plaintiff was 

even exposed to the fibers from a particular defendant’s product. 

(Ibid.) Further, “at a level of abstraction somewhere between the 

historical question of exposure and the unknown biology of 

carcinogenesis,” sits the question of whether the risk of cancer 

created by a plaintiff’s exposure to a particular asbestoscontaining product was significant enough to be considered a 

legal cause of the disease. (Ibid.) 

Rutherford ultimately concluded that the conceded 

impossibility of proving the scientifically unknown details of 
45

carcinogenesis, or of tracing the unknowable path of a given 

asbestos fiber, did not justify shifting the burden to defendants to 

prove a lack of legal cause. (Rutherford, supra, 16 Cal.4th at 

p. 976.) “Instead, we can bridge this gap in the humanly 

knowable by holding that plaintiffs may prove causation in 

asbestos-related cancer cases by demonstrating that the 

plaintiff’s exposure to defendant’s asbestos-containing product in 

reasonable medical probability was a substantial factor in 

contributing to the aggregate dose of asbestos the plaintiff or 

decedent inhaled or ingested, and hence to the risk of developing 

asbestos-related cancer, without the need to demonstrate that 

fibers from the defendant’s particular product were the ones, or 

among the ones, that actually produced the malignant growth.” 

(Id. at pp. 976–977, fn. omitted.)

The court then addressed jury instructions, observing that 

jurors given the standard concurrent causation jury instruction 

“might well conclude that the plaintiff needed to prove that fibers 

from the defendant’s product were a substantial factor actually 

contributing to the development of the plaintiff’s or decedent’s 

cancer,” and, “[i]n many cases, such a burden will be medically 

impossible to sustain, even with the greatest possible effort by 

the plaintiff, because of the irreducible uncertainty regarding the 

cellular formation of an asbestos-related cancer.” (Rutherford, 

supra, 16 Cal.4th at p. 977.) “We therefore hold that, in the trial 

of an asbestos-related cancer case, although no instruction 

‘shifting the burden of proof as to causation’ to defendant is 

warranted, the jury should be told that the plaintiff’s or 
46

decedent’s exposure to a particular product was a substantial 

factor in causing or bringing about the disease if in reasonable 

medical probability it was a substantial factor contributing to 

plaintiff’s or decedent’s risk of developing cancer.” (Ibid.) 

“In conclusion, our general holding is as follows. In the 

context of a cause of action for asbestos-related latent injuries, 

the plaintiff must first establish some threshold exposure to the 

defendant’s defective asbestos-containing products, and must 

further establish in reasonable medical probability that a 

particular exposure or series of exposures was a ‘legal cause’ of 

his injury, i.e., a substantial factor in bringing about the injury. 

In an asbestos-related cancer case, the plaintiff need not prove 

that fibers from the defendant’s product were the ones, or among 

the ones, that actually began the process of malignant cellular 

growth. Instead, the plaintiff may meet the burden of proving 

that exposure to defendant’s product was a substantial factor 

causing the illness by showing that in reasonable medical 

probability it was a substantial factor contributing to the 

plaintiff's or decedent’s risk of developing cancer. The jury 

should be so instructed. The standard instructions on substantial 

factor and concurrent causation (BAJI Nos. 3.76 and 3.77) remain 

correct in this context and should also be given.” (Rutherford, 

supra, 16 Cal.4th at pp. 982–983, fns. omitted.) 

C. Analysis

We start with two observations about our high court’s 

precedent. First, Rutherford adopted its refined standard of proof 

for legal causation only for cases involving asbestos-related 
47

cancer. (Rutherford, supra, 16 Cal.4th at p. 983, & fn. 13 

[expressly declining to determine whether the “substantial factor 

contributing to the . . . risk” standard applied to asbestosis cases, 

as opposed to asbestos-related cancer cases].) Next, while 

plaintiff contends that Bockrath, supra, 21 Cal.4th 71, which 

addressed causation pleading requirements in a non-asbestos 

toxic tort case, held that Rutherford’s “substantial factor 

contributing to the risk” standard is the governing standard of 

proof for causation in all toxic tort cases, we do not read Bockrath

so expansively. Rather, Bockrath adopted the rule that, “[i]n 

cases like the one before us, presenting complicated and possibly 

esoteric medical causation issues, the standard of proof ordinarily 

required is ‘ “a reasonable medical probability based upon 

competent expert testimony that the defendant’s conduct 

contributed to [the] plaintiff's injury.” ’ ” (Id. at p. 79 [citing to 

different pages of Rutherford for the applicable “ordinary” 

standard of proof and the standard of proof for asbestos-related 

cancer claims].)18

Despite the above observations, Colgate’s claim of 

instructional error fails. Rutherford endorsed the refined 

standard of proof for causation announced therein because of the 

18 Some courts have commented, without deciding, that 

Rutherford’s refined standard for proving causation “would 

appear appropriate for toxic torts beyond asbestos.” (Whiteley v. 

Philip Morris Inc. (2004) 117 Cal.App.4th 635, 700; see also 

Major v. R.J. Reynolds Tobacco Co. (2017) 14 Cal.App.5th 1179, 

1197 [citing Bockrath and noting that “subsequent authority has 

extended Rutherford to cancer caused by long-term exposure to 

multiple different toxins.”].) 
48

state of the science and the impossibility of proving whether a 

particular fiber or fibers from defendant’s product caused the 

cancer. (Rutherford, supra, 16 Cal.4th at p. 976 [reviewing the 

impossibility of proving “the scientifically unknown details of 

carcinogenesis, or [of tracing] the unknowable path of a given 

asbestos fiber”].) The endorsed standard “bridge[d] this gap in 

the humanly knowable,” (ibid.), and on the record before us, we 

see no reason why Rutherford’s rationale for applying a refined 

standard of proof for causation should not apply to a theory based 

on fibrous talc.

Dr. Egilman testified that fibrous talc is carcinogenic 

because its chemical structure is identical or very close to 

anthophyllite asbestos, and he noted that asbestos fibers can 

become talc fibers over the course of millions of years. He 

testified that, when you have fibers of asbestiform talc with the 

same shape and substantially the same chemical structure as 

anthophyllite asbestos, the surface properties of the fibers at 

issue are identical, and the human body cannot tell the difference 

between the fibers of the asbestos minerals and the talc. Both 

minerals are indestructible such that the human body’s 

macrophages cannot clear them from the lung. Dr. Egilman 

explained that the surface properties are what interact with DNA 

to make the mineral particles carcinogenic, and he testified that 

both asbestos fibers and fibrous talc cause cancer in the same 

way. At least in this case, it appears from the testimony that the 

same challenges inherent in proving causation in asbestosrelated cancer cases apply similarly to plaintiff’s theory of fibrous 
49

talc-related mesothelioma—i.e., the “irreducible uncertainty” 

regarding “which particular fiber or fibers actually caused the 

cancer to begin forming” and of tracing the unknowable path of a 

given fiber. (Rutherford, supra, 16 Cal.4th at p. 975.) As such, 

we conclude that Rutherford’s rationale applies and was properly 

extended in this case as a refined standard of proof for legal 

causation.19

III. Motion for a Mistrial

J&J contends the trial court erred in refusing to grant its 

motion for a mistrial after plaintiff played for the jury deposition 

excerpts containing references to talc being linked to ovarian 

cancer. We conclude that the trial court did not abuse its 

discretion in denying the motion. (See People v. Williams (1997) 

16 Cal.4th 153, 210 [denial of mistrial motion reviewed for abuse 

of discretion].)

A. Additional Background

J&J moved in limine to exclude any reference to talc and 

ovarian cancer. Plaintiff opposed, arguing that she was entitled 

to establish J&J’s notice of the hazards of talc use, and she 

referenced a J&J document that discussed finding asbestos and 

particles consistent with talc in ovarian tissue. The trial court 

denied the motion, with a caveat: “I think that the right thing to 

19 Colgate’s argument is that the trial court’s modification 

of the causation language in CACI Nos. 400, 406, 1202, 1203, 

1205, 1900, and 1901 was erroneous solely because a Rutherford 

standard of proof does not apply to fibrous talc. It does not 

contend that, even if Rutherford’s “substantial factor in 

contributing to the risk” standard of proof applies to fibrous talc, 

the modified instructions were prejudicially erroneous.
50

do on this motion is to deny it with an exception to the denial, 

so—because the demonstration is on the part of the plaintiff to 

have notice attributed to the defendant as of the date with regard 

to health consequences and, presumably, subsequent testimony 

that there was no change in the product following that notice. 

Nobody said that, but it doesn’t make any sense otherwise. [¶] 

But the reference to the specific disease of ovarian cancer is 

unnecessary. It’s prejudicial. So it’s denied, except that ovarian 

cancer is not something that’s going to be brought up as being a 

consequence. You can just call it a health issue or a health 

problem. But it’s going to be granted only to that extent, and the 

rest denied.” 

When the video of the deposition of J&J corporate 

representative Dr. John Hopkins was played, Dr. Hopkins was 

questioned about a 1997 letter criticizing the Cosmetic Toiletry 

and Fragrance Association (CTFA). The letter’s author critiqued 

three CTFA response statements, and, in doing so, the author 

referenced talc particles having been found in ovarian tissue and 

studies showing “a statistically significant association between 

hygienic talc use and ovarian cancer.” J&J did not object or ask 

to stop the video. Afterwards, outside the jury’s presence, J&J’s 

counsel inquired of the court whether an objection to references 

to ovarian cancer had been overruled. The parties had filed pageline designations and objections for video deposition testimony to 

be played to the jury, and the court explained that it overruled 

the objections to Dr. Hopkins’ deposition because no one 

specifically objected that it referenced ovarian cancer, and the 
51

court did not notice the reference. Regarding the reference 

played to the jury, the court stated, “But it’s pretty de minim[i]s.” 

J&J’s counsel asked that, going forward, there be no further 

references, and the court agreed. 

Later that day, during the video of Mr. Rosolowsky’s 

deposition, he was asked, “Did Johnson & Johnson, when you 

were in market research, ever do focus groups to understand 

whether the consumer had concerns about cancer risk after using 

Johnson & Johnson talcum powder?” He said, “No, sir, not that I 

can recall.” Then, the text of the next question appeared, asking 

whether J&J had done any research about whether consumers 

had concerns about ovarian cancer, and it purportedly froze on 

screen. Although the word “ovarian” was deleted in the audio 

played, the text appeared on the screen. Rosolowsky responded, 

“I can’t recall that sir. I don’t believe so.” After the video 

finished playing, outside the presence of the jury, J&J’s counsel 

told the court, “We had—we had a little issue on the video with 

‘ovarian cancer,’ and I just—I think we should just take 30 

seconds tomorrow to talk about that.” The court inquired what 

counsel would like the court to do, and J&J’s counsel responded, 

“That’s what I’d like to think about, Your Honor. Maybe we’d 

want a quick instruction. I don’t know. I’d like to think about it, 

if we could, and discuss it for a second tomorrow.” 

J&J filed a motion for a mistrial the following week, with 

one of its arguments being that a mistrial was required because 

of the ovarian cancer references. At the argument on the motion, 

J&J requested curative instructions for various other issues 
52

raised therein, but not for the ovarian cancer issue. The court 

denied the motion.

B. Analysis

A trial court has discretion to declare a mistrial “when ‘an 

error too serious to be corrected has occurred.’ ” (Velasquez v. 

Centrome, Inc. (2015) 233 Cal.App.4th 1191, 1214.) However, a 

curative instruction to disregard improper testimony is generally 

sufficient to cure prejudice. (People v. Navarrete (2010) 181 

Cal.App.4th 828, 834, 836.) “The trial court, ‘present on the 

scene, is obviously the best judge of whether any error was so 

prejudicial to one of the parties as to warrant scrapping the 

proceedings up to that point.’ [Citation.] A trial court should 

grant a mistrial only when a party’s chances of receiving a fair 

trial have been irreparably damaged.” (Velasquez, at p. 1214.)

J&J does not persuade us that this is an exceptional case 

where the trial court abused its discretion in denying the motion 

for a mistrial. J&J did not move to correct the allegedly 

egregious errors until its motion for a mistrial filed a week after 

the errors occurred. The trial court concluded that the references 

to ovarian cancer in Dr. Hopkins’ transcript were “de minim[i]s,” 

and the record supports that conclusion as these were brief 

references in the span of a multi-week trial. Furthermore, while 

the question referencing ovarian cancer apparently froze on 

screen, the question was only whether J&J had done any 

research into whether consumers had concerns about ovarian 

cancer. We thus reject J&J’s contention that the trial court 

abused its discretion in deciding that the brief references to
53

ovarian cancer were not so prejudicial as to irreparably damage 

J&J’s right to a fair trial. 

IV. The Adverse Inference Instruction

The trial court determined there was sufficient evidence to 

support an adverse inference instruction in this case, and the 

jury was instructed: “You may consider whether one party 

intentionally concealed or destroyed evidence. If you decide that 

party did so, you may decide that the evidence would have been 

unfavorable to that party.” J&J argues the evidence was 

insufficient to support this instruction, and that the error 

requires reversal of the judgment. As set forth post, we disagree.

“ ‘Spoliation’ is ‘ “the destruction or significant alteration of 

evidence, or the failure to preserve property for another’s use as 

evidence in pending or reasonably foreseeable litigation.” ’ ” 

(Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 

681 [citing federal case law].) One remedy for spoliation is an 

adverse evidentiary inference—allowing the jury to infer that 

evidence which one party has willfully destroyed or rendered 

unavailable was unfavorable to that party. (Evid. Code, § 413; 

Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 

1, 11; CACI No. 204.) Such an instruction may be given only if 

there is evidence of willful suppression, which one appellate court 

has described as “evidence that a party destroyed evidence with 

the intention of preventing its use in litigation.” (New Albertsons, 

Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434.)

Even assuming the trial court erred in giving the adverse 

inference instruction, J&J has not shown that it is reasonably 
54

probable the instructional error affected the jury’s verdict. (See 

Soule, supra, 8 Cal.4th at pp. 574, 580.) In assessing prejudice, 

the reviewing court should consider the nature of an instructional 

error, “ ‘including its natural and probable effect on a party’s 

ability to place his full case before the jury,’ ” as well as the 

likelihood of actual prejudice, considering “ ‘(1) the state of the 

evidence, (2) the effect of other instructions, (3) the effect of 

counsel’s arguments, and (4) any indications by the jury itself 

that it was misled.’ ” (Rutherford, supra, 16 Cal.4th at p. 983.)

Here, J&J argued its full case to the jury, and the 

instruction did not inform the jury that defendants had 

intentionally concealed or destroyed evidence. Rather, it merely 

permitted the jury to consider whether defendants had done so 

and, if it so found, that it may (but did not have to) decide that 

the evidence would have been unfavorable to defendants.

Plaintiff did refer to the suppression instruction, arguing in 

closing that J&J destroyed a document with a code that would 

show which company’s 1976 cosmetic talc products were linked to 

positive results in CTFA blind asbestos testing, and plaintiff 

briefly alluded to J&J’s destruction of documents before it sold 

the Vermont talc mine in 1989. Nonetheless, there was abundant 

evidence that Vermont talc and JBP, during the time J&J used 

Vermont talc, contained asbestos. Apart from Dr. Longo’s and 

Mr. Poye’s testing, there was testimony that in 1991, Alice 

Blount, Ph.D., documented trace levels of tremolite asbestos in 

samples of JBP sourced from the Vermont mines in a peerreviewed and published paper. There was evidence of a number 
55

of historical reports of asbestos in Vermont talc and the JBP 

derived therefrom. Dr. Sanchez testified there were asbestiform 

amphiboles in the Vermont mines, although he said they were 

outside the talc ore body. And Dr. Egilman testified that JBP 

historically contained asbestos, studies found asbestos in the 

Vermont talc mine, and six or seven different laboratories found 

asbestos in JBP in the early 1970s. Plaintiff spent a large 

amount of time highlighting this evidence in her closing 

argument as opposed to the brief amount of time she spent on the 

adverse inference instruction. On this record, J&J has not shown 

that without the challenged instruction, it is reasonably probable 

it would have obtained a more favorable result.

V. The Fraudulent Concealment Instruction

J&J raises a final instructional error claim—that it was 

entitled to correct, nonargumentative jury instructions upon its 

request, and the court erred in failing to instruct the jury that it 

had to find the requisite transactional relationship to succeed on 

a claim for fraudulent concealment. Plaintiff argues the 

instruction given was appropriate, and both parties cite BiglerEngler v. Breg, Inc. (2017) 7 Cal.App.5th 276 (Bigler-Engler), to 

support their positions. We conclude that, even assuming some 

error in failing to instruct as J&J requested, it is not reasonably 

probable that J&J would have received a more favorable result

had the jury been instructed under Bigler-Engler.

A. Additional Background

When discussing the jury instruction and special verdict 

form for concealment, J&J took the position that the court should 
56

add a preamble to the beginning of CACI No. 1901, as follows: 

“That plaintiff, Patricia Schmitz and the defendants, were 

engaged in a transactional relationship based on direct dealings.” 

The court requested that the parties provide a complete proposed 

written instruction for its consideration, commenting that what 

was before it was an outline. The parties do not cite to a 

proposed instruction in the record, but the reporter’s transcript 

shows that plaintiff sent a proposed instruction for CACI No. 

1901 to defendants, and J&J provided a redline. The court 

elected to give plaintiff’s proposed instruction, instructing the 

jury that, to find concealment, plaintiff had to prove that 

“defendant directly advertised its products to consumers such as 

Patricia Schmitz or Patricia Schmitz purchased defendant’s 

product.” In closing, J&J’s counsel argued that Schmitz never

saw advertisements or brochures for JBP, and she never 

purchased JBP.

B. Governing Law and Standard of Review

The elements of a cause of action for ‘‘ ‘concealment are:

“ ‘(1) the defendant must have concealed or suppressed a material 

fact; (2) the defendant must have been under a duty to disclose 

the fact to the plaintiff; (3) the defendant must have intentionally 

concealed or suppressed the fact with the intent to defraud the 

plaintiff; (4) the plaintiff must have been unaware of the fact and 

would not have acted as he did if he had known of the concealed 

or suppressed fact; and (5) as a result of the concealment or 

suppression of the fact, the plaintiff must have sustained 
57

damage.’ ” ’ ” (Bigler-Engler, supra, 7 Cal.App.5th at pp. 310–

311.)

“ ‘There are “four circumstances in which nondisclosure or 

concealment may constitute actionable fraud: (1) when the 

defendant is in a fiduciary relationship with the plaintiff; (2) 

when the defendant had exclusive knowledge of material facts 

not known to the plaintiff; (3) when the defendant actively 

conceals a material fact from the plaintiff; and (4) when the 

defendant makes partial representations but also suppresses 

some material facts.” ’ ” (Bigler-Engler, supra, 7 Cal.App.5th at 

p. 311.) Where a fiduciary relationship does not exist between 

the parties, only the latter three circumstances may apply, and 

those three circumstances presuppose the existence of some other 

relationship between the plaintiff and defendant in which a duty 

to disclose can arise. (Id. at p. 311.) This relationship has been 

called a “transaction” and may include “ ‘ “seller and buyer, 

employer and prospective employee, doctor and patient, or parties 

entering into any kind of contractual arrangement.’ ” ’ ” (Ibid.) 

In Bigler-Engler, patient Whitney Engler sued her doctor, 

the doctor’s medical group, and a medical device manufacturer, 

among others, for numerous torts, including fraudulent 

concealment causing injury from minor Engler’s use of a cold 

therapy device available by prescription only. (Bigler-Engler,

supra, 7 Cal.App.5th at pp. 285–286.) Engler was injured in high 

school and obtained the device from her doctor’s medical group 

for use after surgery. (Id. at p. 286.) The court reversed the 

jury’s verdict on fraudulent concealment against the 
58

manufacturer “because there was no evidence of a relationship 

between Engler (or her parents) and [the manufacturer] 

sufficient to give rise to a duty to disclose.” (Id. at p. 314.) The 

court noted that the manufacturer did not transact with Engler 

or her parents, the manufacturer was not involved “in any way” 

with Engler or her parents, and the evidence did not show that 

the manufacturer “directly advertised its products to consumers 

such as Engler or that it derived any monetary benefit directly 

from Engler’s individual rental of the Polar Care device.” (Ibid.) 

Instead, the medical group obtained the device from the 

manufacturer several years before Engler’s surgery and 

maintained it for rental to its patients. (Ibid.)

“A party is entitled upon request to correct, 

nonargumentative instructions on every theory of the case 

advanced by him which is supported by substantial evidence.” 

(Soule, supra, 8 Cal.4th at p. 572.) We review de novo whether a 

jury instruction correctly states the law. (Strouse v. Webcor 

Construction, L.P. (2019) 34 Cal.App.5th 703, 713.) “[T]here is no 

rule of automatic reversal or ‘inherent’ prejudice applicable to 

any category of civil instructional error, whether of commission or 

omission. A judgment may not be reversed for instructional error 

in a civil case ‘unless, after an examination of the entire cause, 

including the evidence, the court shall be of the opinion that the 

error complained of has resulted in a miscarriage of justice.’

[Citation.] . . . [¶] Instructional error in a civil case is prejudicial 

‘where it seems probable’ that the error ‘prejudicially affected the 

verdict.’ ” (Soule, supra, 8 Cal.4th at p. 580; see also People v. 
59

Watson (1956) 46 Cal.2d 818, 836.) Insofar as relevant, courts 

should consider (1) the degree of conflict in the evidence on the 

critical issues; (2) whether the winning side’s argument to the 

jury may have contributed to the instruction’s misleading effect; 

(3) whether the jury requested rereading of the erroneous 

instruction or related evidence; (4) the closeness of the jury’s 

verdict; and (5) the effect of other instructions in remedying the 

error. (See Soule, at pp. 570–571, 580–581.) 

C. Analysis

Even assuming it was error not to tell the jury that they 

had to find a transaction arising from direct dealings between 

plaintiff and J&J, J&J has not established prejudice. J&J 

concludes in its opening brief, with no citations to the record, that

the jury’s result would have been different without the alleged 

instructional error. Bigler-Engler, however, discussed the 

question of whether there was a sufficient transaction or 

relationship between the defendant and the minor Engler or her 

parents, with the court noting that there was no evidence of a 

transaction or relationship between Engler or her parents and 

the defendant, nor was there evidence that the manufacturer 

directly advertised its products to consumers such as Engler or 

derived any monetary benefit directly from Engler’s rental of the 

device at issue. (Bigler-Engler, supra, 7 Cal.App.5th at p. 314.) 

A proper instruction under Bigler-Engler thus would have 

instructed the jury here to consider whether similar evidence of 

transactions, advertising, or J&J’s direct monetary benefit 

supported the transactional requirement. (Id. at p. 311.) 
60

In contrast to Bigler-Engler, the undisputed evidence in 

this case was that Schmitz lived with her parents growing up, 

her mom used and kept JBP in the house, and Schmitz used JBP 

on her siblings as a kid and then on herself from age 11 to about 

age 13. There was also evidence showing that J&J was involved 

in retail sales of JBP to consumers and profited therefrom. 

On this record, J&J cannot show it is reasonably probable 

the jury would have found for J&J had it been instructed under 

Bigler-Engler that it had to find a transaction between J&J and 

Schmitz or her parents. For the same reasons, J&J’s conclusory 

suggestion that the court should have granted its requests for 

nonsuit and directed verdict fails.

VI. Sufficiency of the Evidence of Concealment

Colgate challenges the trial court’s denial of its motion for 

judgment notwithstanding the verdict on concealment, 

contending that the evidence is insufficient to show that it knew 

Cashmere Bouquet contained asbestos. (Bigler-Engler, supra, 

7 Cal.App.5th at p. 311 [reciting intentional concealment as an 

element of fraudulent concealment]; Goodman v. Kennedy (1976) 

18 Cal.3d 335, 348 [discussing deficient pleading failing to allege 

defendant’s knowledge of existence and materiality of omitted 

matter].)

Our standard of review is well established. “A motion for 

judgment notwithstanding the verdict may be granted only if it 

appears from the evidence, viewed in the light most favorable to 

the party securing the verdict, that there is no substantial 

evidence in support.” (Sweatman v. Department of Veterans 
61

Affairs (2001) 25 Cal.4th 62, 68.) “As in the trial court, the 

standard of review is whether any substantial evidence—

contradicted or uncontradicted—supports the jury’s conclusion.” 

(Ibid.)

Here, substantial evidence supports the jury’s verdict. 

Colgate’s policy was that “any indication of the presence of 

asbestos . . . is unacceptable.” Colgate’s XRD testing detected 

tremolite in Italian and North Carolina talc, and tremolite and 

anthophyllite in Montana talc in 1976. In 1974, McCrone found 

chrysotile asbestos in North Carolina Regal talc and in Cashmere 

Bouquet. Dr. Longo confirmed that, with TEM, the 1974 pictures 

from McCrone showed chrysotile asbestos, and Dr. Sanchez did 

the same. While Colgate points to a memorandum from Dr. 

Simko, the head of the analytical group assisting research & 

development at Colgate at the time, wherein he stated that “it is 

believed” that the contamination was due to laboratory 

contamination, the jury was not required to believe that 

explanation or that Dr. Simko was being truthful. Another 1974 

McCrone test of Cashmere Bouquet reported one fiber of 

tremolite. McCrone stated that it “may well just be stray 

contamination,” but McCrone did not report that it was 

conclusively stray contamination, and the jury was not required 

to so conclude. 

In 1976, the Mt. Sinai School of Medicine published a study 

finding that Cashmere Bouquet contained asbestos after testing 

the product sample with an electron microscope. Colgate knew of 

Mt. Sinai’s findings around the time they came out. Colgate used 
62

XRD to test the same sample as Mt. Sinai and identified 

anthophyllite and possible tremolite therein. The sample was 

sent to McCrone, and Colgate’s corporate representative testified 

that it came back with pictures, but she could not recall what the 

pictures depicted. 

Also in 1976, records from Cyprus, a potential new talc 

supplier for Colgate at the time, stated that Colgate “found some 

tremolite in [its] other talc source and this has really gotten them 

up in arms.” A similar memorandum documented a lunch 

between Cyprus and Colgate employees, including Dr. Simko, 

and stated that Colgate was having “quite a few problems with 

their present [talc] source with respect to asbestos.”

In 1984, Colgate sent samples of “finished product” to 

McCrone for testing, coded 0613BK, 1813AX and 2713EX with a 

formula of 1 percent magnesium carbonate, 1 percent zinc 

stearate, and perfume as additives. McCrone detected chrysolite 

asbestos in these samples. Colgate’s corporate representative 

testified that the samples “could be” Cashmere Bouquet, but then 

said she remembered Dr. Simko saying they were actually 

experimental samples for a developing product, although she 

could not name the experiment. But the formula for these 

samples matched that for Cashmere Bouquet in 1985 and 1986, 

and entries in the laboratory testing notebook of Colgate 

employee Pasquale Briscese identifying Cashmere Bouquet 

contain similar naming codes, such as 4515EX. 

In light of the above, the trial court did not err in failing to 

grant Colgate’s motion for judgment notwithstanding the verdict.
63

VII. Entry of Judgment Nunc Pro Tunc

Relying on Code of Civil Procedure section 377.34, 

subdivision (a),20 defendants challenged the award of damages for 

pain and suffering, contending the court improperly entered 

judgment nunc pro tunc to a time prior to Schmitz’s death. 

Plaintiff asserts that the enactment Code of Civil Procedure 

section 377.34, subdivision (b) has mooted this argument, and we 

agree.

Effective January 1, 2022, Code of Civil Procedure section 

377.34, subdivision (b) states, “Notwithstanding subdivision (a), 

in an action or proceeding by a decedent’s personal representative 

or successor in interest on the decedent’s cause of action, the 

damages recoverable may include damages for pain, suffering, or 

disfigurement if the action or proceeding was granted a 

preference pursuant to Section 36 before January 1, 2022, or was 

filed on or after January 1, 2022, and before January 1, 2026.” 

Given the statute’s specific language and the grant of preference 

in this case before January 1, 2022, the damage awards for pain 

and suffering were not improper.21 (Myers v. Philip Morris 

20 This subdivision provides, “In an action or proceeding by 

a decedent’s personal representative or successor in interest on 

the decedent’s cause of action, the damages recoverable are 

limited to the loss or damage that the decedent sustained or 

incurred before death, including any penalties or punitive or 

exemplary damages that the decedent would have been entitled 

to recover had the decedent lived, and do not include damages for 

pain, suffering, or disfigurement.” (Code Civ. Proc., § 377.34, 

subd. (a).)

21 In its opening brief, Colgate discussed future economic 

loss. In its reply brief, Colgate states that, although the court 

erred by entering judgment nunc pro tunc, “[T]his reply brief will 
64

Companies, Inc. (2002) 28 Cal.4th 828, 844 [a statute may be 

applied retroactively only if it contains express language of 

retroactivity].)

DISPOSITION

The judgment is affirmed.

BROWN, J.

WE CONCUR:

STREETER, ACTING P. J.

GOLDMAN, J.

not further address that argument in light of the enactment of 

subdivision (b) of section 377.34 of the Code of Civil Procedure, 

which occurred after the filing of Colgate’s Opening Brief.” Colgate 

thus appears to have abandoned its argument regarding future 

economic losses.
1 

STREETER, Acting P. J., Concurring. 

 I join the opinion in full, but offer some separate views on 

one aspect of the evidentiary challenges to the expert testimony. 

 I agree with the conclusion that there was no error under 

Sargon Enterprises, Inc. v. University of Southern California

(2012) 55 Cal.4th 747, in the admission of Dr. Egilman’s 

testimony that fibrous talc causes asbestos. It is not the logic of 

this opinion that was potentially problematic, but instead its 

“newness” as an asbestos causation theory and lack of any 

showing that it is empirically testable. I write briefly to say that, 

had there been an objection under People v. Kelly (1976) 

17 Cal.3d 24—there was not—that was the appropriate way to 

challenge the admissibility of Dr. Egilman’s fibrous talc opinion, 

not a Sargon objection. 

 When asked about this at oral argument, counsel for 

Colgate said that Kelly applies to scientific methodologies and 

techniques. It does, yes, but the Supreme Court’s recent 

formulation of the threshold criteria for applying Kelly focuses on 

whether the challenged expert has used a “ ‘ “technique, process, 

or theory” ’ ” that may be considered new to science and law. 

(People v. Peterson (2020) 10 Cal.5th 409, 444, italics added 

[canine scent detection opinion not subject to Kelly]; People v.

Jackson (2016) 1 Cal.5th 269, 316 [same]; see People v. Cowan

(2010) 50 Cal.4th 401, 470 [ballistics testimony].) Recent Court 

of Appeal formulations of the eligibility criteria for applying Kelly

seem to be phrased with similar breadth. (See, e.g., People v. 

Davis (2022) 75 Cal.App.5th 694, 711 [“The Kelly test applies 
2 

only to expert testimony ‘ “ ‘based, in whole or in part, on a 

technique, process, or theory which is new to science and, even 

more so, the law.’ ” ’ ”].) 

 For context, the evolution in this area of law over the last 

few decades is useful to recall. Of course, “gatekeeping” 

screening for expert testimony has been a highly contested issue 

since the adoption of a heightened federal standard for expert 

testimony under Federal Rules of Evidence, rule 702 in Daubert 

v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579. Before 

that, our Kelly standard in California limited such gatekeeping to 

scientific evidence, and our Supreme Court had not embraced the 

Daubert idea that there ought to be strict “gatekeeping” of the 

foundation for expert opinion, at least not in a mode that was any 

more rigorous than the rules of evidence require for opinion 

testimony in general. 

 In People v. Leahy (1994) 8 Cal.4th 587, a landmark postDaubert opinion cited in our opinion, the California Supreme 

Court adhered to Kelly and declined to merge Kelly into a more 

generalized Daubert-like screening test. Both before and after 

Leahy, it was often stated in Kelly cases that its screening rule 

does not apply to medical causation opinions outside the context 

of new scientific techniques, processes or procedures, arguably a 

narrower formulation than we see later in cases like Peterson and 

Jackson. Roberti v. Andy’s Termite & Pest Control, Inc. (2003) 

113 Cal.App.4th 893, another case cited in our opinion, is among 

the most cited cases for that idea. 
3

But then came Sargon, which changed the landscape by 

adopting a Daubert-like gatekeeping rule for expert testimony in 

general. After Sargon, we now have two regimes of admissibility 

rules for expert testimony on scientific topics in California, one 

under Sargon and one under Kelly. No case has ever explored the 

interplay between these two regimes. Sargon expressly says it is 

focused on foundational logic, not scientific validity. And notably, 

the post-Sargon Kelly cases utilizing the broader formulation 

(i.e., Peterson and Jackson) emphasize that the Kelly test is not 

limited to methodological “techniques” or “processes,” which

suggests that there may be some types of causation opinions—

i.e., scientific opinions based on untested hypotheses—that are 

subject to Kelly. If that is the case, it seems consistent with the 

Roberti rule, since Roberti explicitly lays down a caveat for 

causation opinions that are based on new scientific techniques, 

processes or procedures.

Having laid out in broad strokes the evolution of the law in 

this area, I wish to emphasize that I am not suggesting that 

Dr. Egilman’s theory of fibrous talc asbestos causation was 

necessarily vulnerable to challenge under Kelly, and I am 

certainly not labelling it “junk science.” Which is why I agree 

that we “express no view on whether such an argument would 

have been successful.” (Lead opn., ante, at p. 21, fn. 11.) We do 

not have a sufficient record to evaluate the question raised. But I 

do think we are dealing with an important legal issue here, one

that this case illustrates quite well because the fibrous talc 

theory can easily be characterized as “new” for Kelly purposes. 
4 

The bottom line, though, is that because the admissibility of 

Dr. Egilman’s fibrous talc opinion was not subject to a Kelly

objection, we cannot tell on this record.

 In 2016, the President’s Council of Advisors on Science and 

Technology (PCAST) issued a ground-breaking report to the 

President of the United States on the use of forensic science in 

the courtroom. (PCAST, Forensic Science in Criminal Courts: 

Ensuring Scientific Validity of Feature-Comparison Methods 

(September 2016)22 (PCAST Report).) While the PCAST Report 

focused on the use of forensic evidence in criminal cases, I believe 

it lays out some important considerations for the assessment of 

scientific validity of science-based expert opinion in civil cases as 

well, and that these considerations ought to be recognized on the 

Kelly side of expert opinion screening in California. 

 The debate about whether fibrous talc may be considered to 

have the same pathogenic qualities as asbestos fibers or instead 

should be placed in the category of benign cleavage fragments, at 

bottom, implicates one of the most important aspects of assessing 

what the PCAST Report called “foundational validity”—not just 

whether the opinion has been subjected to peer review and 

publication in the scientific community, but whether it is a 

“scientific theory” that is testable by “empirical demonstration of 

accuracy.” (PCAST Report, at p. 46; id. at p. 60 [referring to 

National Academy of Sciences’ definition of a “scientific theory” 

22<https://obamawhitehouse.archives.gov/sites/default/files/

microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf>

(as of Dec. 23, 2022). 
5

as a “ ‘comprehensive explanation of some aspect of nature that is 

supported by a vast body of evidence’ ”].)

Among the most important criteria for testable empirical 

accuracy is whether “error rates” have been taken into account, 

so that conclusions based on mere coincidence and association 

may be distinguished from reliable conclusions suggesting actual 

causality. (PCAST Report, at p. 62.) I have no idea how 

Dr. Egilman’s fibrous talc opinion would stand up to scrutiny 

against such an assessment, but I suspect it may have fallen 

short, particularly given its apparent “newness” in the field of 

asbestos causation. The proper vehicle for mounting such a 

challenge, however, was a Kelly objection and a request for an 

Evidence Code section 402 hearing to assess the scientific 

foundation for the opinion, not a Sargon objection with back-andforth arguments from lawyers on an undeveloped record about 

the “logic” of the opinion.

STREETER, Acting P. J.

Bader v. Johnson & Johnson et al. (A158868)
1

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Frank Roesch

Counsel: Orrick, Herrington & Sutcliffe, Naomi J. 

Scotten, Robert M. Loeb, Upnit K. Bhatti, 

Jeffrey T. Quilici; King & Spalding, Alexander 

G. Calfo, Paul R. Johnson, Susan V. Vargas for 

Defendants and Appellants Johnson & Johnson 

and Johnson & Johnson Consumer, Inc.

Wilson Sonsini Goodrich & Rosati, Fred A. 

Rowley, Jr.; Munger, Tolles & Olson, Jeffrey Y. 

Wu, Matthew K. Donohue, Anne K. Conley,

Maggie Thompson; Foley & Mansfield, Gary D. 

Sharp, Peter M. Mularczyk; Cravath, Swaine &

Moore, Darin McAtee for Defendants and 

Appellants Colgate-Palmolive Company.

Kazan, McClain, Satterley & Greenwood, 

Joseph D. Satterley, Denyse F. Clancy, Ian A. 

Rivamonte, Michael T. Stewart for Defendant 

and Respondent.