Hanson et al v. Colgate-Palmolive Company et al
Filing
202
ORDER granting 74 Motion for Partial Summary Judgment; granting 87 Motion for Summary Judgment; denying 129 Motion for Oral Argument. The Clerk is directed to enter judgment in favor of Defendant on all of Plaintiff's claims, terminate all other motions, if any, and close this case. Signed by Chief Judge J. Randal Hall on 09/28/2018. (thb)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
DOUGLAS B. HANSON, individually
as the surviving spouse of
Sharon M. Hanson, deceased, and
in his capacity as the duly
appointed
Executor
of
the
Estate of Sharon M. Hanson,
Plaintiff,
V.
*
CV 216-034
*
COLGATE-PALMOLIVE COMPANY,
*
Defendant.
ORDER
Before the Court are the following motions: (1) Defendant's
motion for partial summary judgment (Doc. 74), (2) Defendant's
motion for summary judgment (Doc. 87), and (3) Defendant's motion
for oral argument on the above motions (Doc. 129).
set
forth
herein,
(1)
Defendant's
motion
for
For the reasons
partial
summary
judgment is GRANTED; (2) Defendant's motion for summary judgment
is GRANTED; and (3) Defendant's motion for oral argument is DENIED.
I. BACKGROUND
A. Sharon M. Hanson
Sharon
M.
Hanson
("Ms.
Hanson")
was
a
loyal
customer
of
Colgate-Palmolive Company's ("^Defendant") talcum powder. Cashmere
Bouquet.
(See S, Hanson Dep. Volume (^^Vol.") I, Doc. 148-55, at
93, 94, 104; S. Hanson Video Dep., Doc. 148-56, at 31.)
Ms. Hanson
inherited the practice of using Cashmere Bouquet from her mother.
(S. Hanson Dep. Vol. I at 103-04.)
In 1961, at nine years old,
Ms. Hanson began using the talc product.
(Id. at 93-94, 104.)
She continued using Cashmere Bouquet until 1973.
(Id. at 105.)
Ms. Hanson explained that the Cashmere Bouquet was a powdery
substance that created dust clouds when transferred or applied.
(S. Hanson Video Dep. at 16-18, 20-21.)
In 2008, while working as a fitness instructor, Ms. Hanson
began to experience pain in her chest while breathing.
45.)
(Id. at
Ms. Hanson was ultimately referred to the Mayo Clinic, and,
following tests, she was initially diagnosed with mesothelioma in
2009.
Upon
(Id. at 47; Def.'s Mot. for Summ. J., Ex. 7, Doc. 90-6.)
being
diagnosed
with
mesothelioma,
Ms.
Hanson
sought
treatment at the MD Anderson Cancer Center in Houston, Texas (^^MD
Anderson").
(S. Hanson Video Dep. at 48.)
While under the care
of MD Anderson, Ms. Hanson's diagnosis changed from mesothelioma
to ovarian cancer.
(S. Hanson Video Dep. at 49; Def.'s Mot. for
Summ. J., Ex. 8, Doc. 90-7, at 1.)
In 2014, doctors at MD Anderson
later determined that Ms. Hanson did, in fact, have mesothelioma
in addition to ovarian cancer.
(S. Hanson Video Dep. at 59.)
April 21, 2018, Ms. Hanson passed away.
On
{Am. Compl., Doc. 200,
5 5.)
B. Cashmere Bouquet
Both Parties offer voluminous evidence attempting to prove
and disprove the presence of asbestos in Cashmere Bouquet.
(See
generally Def.'s Mot. for Summ. J., Doc. 87; Pis.' Br. in Opp'n to
Def.'s Mot. for Summ. J., Doc. 153.)
The Parties dispute the
presence of asbestos in talcum powder, generally.
However, the
Parties agree that Cashmere Bouquet originates from talc mines in
Italy, North Carolina, and Montana but dispute whether those mines
are
contaminated
with
asbestos.
Finally,
there
is
a
dispute
regarding the presence and level of asbestos in Cashmere Bouquet.
In support of their positions, the Parties offer various private
and
government
studies
and
expert
reports
and
testimony.
Additional important facts, however, are undisputed.
First, it is undisputed that asbestos is not an intended
ingredient of Cashmere Bouquet.
Second, a review of the record
shows that no study, test, or expert can opine as to whether the
Cashmere Bouquet to which Ms. Hanson was exposed contains asbestos.
Third, if Ms. Hanson's Cashmere Bouquet did contain asbestos, it
is undisputed that no study, test, or expert can opine as to the
quantity of asbestos contained in Ms. Hanson's Cashmere Bouquet.
C. Procedural His'bory
Ms. Hanson and Douglas B. Hanson (collectively, ^^Plaintiffs'')
initiated the present action against Colgate-Palmolive and other
defendants on March 7, 2016.
(See generally Compl., Doc. 1.)
Colgate-Palmolive is the only remaining defendant.
Compl.)
Plaintiffs'
substantive
causes
of
initial
complaint
action
against
contained
Defendant
(See Am.
several
including
negligence, product liability negligence, breach of warranty, and
loss of consortium.^
punitive damages.
(Compl., SlSl 25-59.)
Plaintiffs also claimed
(Id., SISI 60-61.)
On September 15, 2017, Defendant moved for summary judgment
on each of Plaintiffs' substantive claims on causation grounds and
for partial summary judgment on Plaintiffs' claim for punitive
damages.
(Def.'s Mot. for Summ. J.; Def.'s Mot. for Partial Summ.
J., Doc. 74.)
The Parties also filed numerous Daubert motions
seeking to exclude the testimony of each other's expert witnesses.
On September 24, 2018, the Court entered its Order ruling on each
of the pending expert motions.
(Order, Doc. 201.)
Notably, the
Court excluded the opinions of Plaintiffs' experts Dr. Ronald
Gordon, Ph.D.; Dr. Richard Kradin, M.D.; Dr. Jacqueline Moline,
^ At the time the complaint was filed, it named both Ms. Hanson and
Mr. Hanson as plaintiffs. (Compl.)
4
M.D.; and Dr. James Webber, Ph.D.; each of whom were Plaintiffs'
designated experts on the issue of causation.
Following
Mr. Hanson's
substitute
complaint.
Ms.
Hanson's
(hereinafter,
party
plaintiff
passing,
the
''Plaintiff")
and
for
(Order, Doc. 199.)
(Id.)
Court
granted
consent
motion
to
an
leave
file
to
amended
Plaintiff's Amended Complaint
maintained the claims contained in the initial complaint and added
an additional cause of action, wrongful death.
66.)
(Am. Compl., SlSl 26-
As with the other substantive claims, the wrongful death
claim is premised upon asbestos contamination of Cashmere Bouquet
and exposure to Cashmere Bouquet causing Ms. Hanson's cancer.
II. MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
Summary judgment is appropriate only if "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law."
Fed R. Civ. P. 56(a).
Facts are
"material" if they could affect the outcome of the suit under the
governing
substantive
law,
and
a
dispute
is
genuine "if the
evidence is such that a reasonable jury could return a verdict for
the non-moving party."
242, 248 (1996).
Anderson v. Liberty Lobby, Inc., 477 U.S.
The Court must view the facts in the light most
favorable to the non-moving party, Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986), and must draw "all
justifiable inferences in [its] favor."
United States v. Four
Parcels of Real Prop., 941 F.2cl 1428, 1437 (llth Cir. 1991) (en
banc) (internal punctuation and citations omitted).
The Court
should not weigh the evidence or determine credibility.
Anderson,
477 U.S. at 255.
The moving party has the initial burden of showing the Court,
by reference to materials on file, the basis for the motion.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Because the
standard for summary judgment mirrors that of a directed verdict,
the initial burden of proof required by either party depends on
who carries the burden of proof at trial.
Id. at 323.
When the
movant does not carry the burden of proof at trial, it may carry
the initial burden in one of two ways—by negating an essential
element of the non-movant's case or by showing that there is no
evidence to prove a fact necessary to the non-movant's case.
See
Clark V. Coats & Clark, Inc., 929 F.2d 604, 606—08 (llth Cir. 1991)
(citing Adickes v. S.H. Kress &
Celotex Corp., 477 U.S. 317).
Co., 398
U.S. 144 (1970) and
The movant cannot meet its initial
burden by merely declaring that the non-moving party cannot meet
its burden at trial.
Id.
If—and only if—the movant carries its initial burden, the
non-movant must ^demonstrate that there is indeed a material issue
of fact that precludes summary judgment."
Id.
When the non-
movant bears the burden of proof at trial, the non-movant must
tailor its response to the method by which the movant carries its
initial burden.
For example, if the
movant presents evidence
affirmatively
negating
a
material
fact,
the
non-movant
^'must
respond with evidence sufficient to withstand a directed verdict
motion
at
trial
on
the
material
fact
sought
to
be
negated."
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 {11th Cir. 1993).
On the other hand, if the movant shows an absence of evidence on
a material fact, the non-movant must either show that the record
contains evidence that was ^^overlooked or ignored" by the movant
or '"come forward with additional evidence sufficient to withstand
a directed verdict motion at trial based on the alleged evidentiary
deficiency."
Id. at 1117.
The non-movant cannot carry its burden
by relying on the pleadings or by repeating conclusory allegations
contained in the complaint.
1033—34 (11th Cir. 1981).
See Morris v. Ross, 663 F.2d 1032,
Rather, the non-movant must respond
with affidavits or as otherwise provided by Federal Rule of Civil
Procedure 56.
In this action, the Clerk of Court gave Plaintiff notice of
the motions for summary judgment and informed him of the summary
judgment rules, the right to file affidavits or other materials in
opposition, and the consequences of default.
(Docs. 130, 131.)
Thus, the notice requirements of Griffith v. Wainwright, 772 F.2d
822, 825 (11th Cir. 1985) (per curiam), are satisfied.
The time
for filing materials in opposition has expired, and the motion is
now ripe for consideration.
B. Discussion
Defendant's motion for summary judgment contends that summary
judgment is proper because there is no evidence in the record that
(1) the talcum powder that Ms. Hanson used contained asbestos and
(2)
even
assuming
some
of the
talcum
powder
Ms.
Hanson
used
contained asbestos, there is no evidence as to Plaintiff's level
of exposure to that asbestos.
Defendant's motion, therefore,
asserts that Plaintiff s claims fail on the issue of causation as
a
matter
of law.^
For the
reasons
set forth
below, the Court
agrees.^
1. Causation
Plaintiff alleges several causes of action against Defendant;
each one premised upon Ms. Hanson's alleged exposure to asbestos.
2 Defendant requests oral argument on its summary judgment motions
presently before the Court.
(Doc. 129.)
Upon consideration of the
issues presented and the Parties' submissions, the Court finds that the
matters considered in this Order have been sufficiently explored in the
Parties' filings and that oral argument would not materially aid the
Court in resolving the pending motions.
^ In its motion for summary judgment. Defendant argues that even
assuming admission of Plaintiff's experts, no genuine issue of material
facts exists as to causation.
(See Def.'s Mot. for Summ. J., at 18—21,
22—24.)
The Court agrees, and this Order assumes the admission of
Plaintiff's experts' opinions. However, in an Order dated September 24,
2018, four of Plaintiff's causation experts were excluded under Daubert.
(Doc. 201.)
McClain v. Metabolite Int'l, Inc., 401 F.3d 1233, 1237 (11th
Cir. 2005) (noting that proof of causation in toxic tort cases requires
expert testimony); Butler v. Union Carbide Corp., 712 S.E.2d 537, 544
(Ga. Ct. App. 2011) ("Causation is an essential element of a toxic tort
case, and proof of causation in such cases, ^generally requires reliable
expert testimony.' Absent reliable expert testimony that exposure to a
[defendant's] product contributed to the development of [plaintiff's]
mesothelioma, there is insufficient evidence to create a jury issue as
to causation.") (internal citations omitted). Even assuming Plaintiff's
expert testimony was sufficient to create an issue of fact regarding
asbestos in Ms. Hanson's Cashmere Bouquet and the level of her exposure
8
Defendant's summary judgment motion contends that Plaintiff cannot
prove causation, required for each claim, as a matter of law.
an asbestos action, ^^causation is an essential element."
In
Butler
V. Union Carbide Corp., 712 S.E.2d 537, 544 (Ga. Ct. App. 2011).
For claims involving toxic exposure, including asbestos, causation
is broken down into two types: general causation and specific
causation.
Id.
at
540-41.
""'General
causation
is
whether
a
substance is capable of causing a particular injury or condition
in the general population, while specific causation is whether a
substance caused a particular individual's injury."
Id.
Most
toxic tort cases fit into two categories: "first, those cases in
which the medical community generally recognizes the toxicity of
the drug or chemical at issue, and second, those cases in which
the medical community does not generally recognize the agent as
both toxic and causing the injury plaintiff alleges."
Metabolife Int'l, Inc., 401
McClain v.
F.3d 1233, 1239 (11th Cir. 2005).
Asbestos is grouped in the former.^
Id.
For cases in the first
to that asbestos. Plaintiff can no longer offer expert testimony on the
issue of causation.
Plaintiff points to no other evidence sufficient
to establish causation as a matter of law.
As such, summary judgment
is proper for the additional reason that the exclusion of Plaintiff's
experts eliminates any existing issue of material fact as to causation.
^ Asbestos falls in the first category because the medical community
widely accepts that asbestos causes asbestosis and mesothelioma.
McClain, 401 F.3d at 1239.
It does not appear that the connection
between asbestos exposure and ovarian cancer is as concrete. However,
as the focal point of this motion for summary judgment is specific
causation, the Court need not reach a conclusion on whether the medical
community generally accepts that asbestos exposure causes ovarian
cancer.
category, specific causation is the only type of causation at
issue.
Id.
"Specific
plaintiff
causation
refers
to
has demonstrated that the
injury in her particular case."
the
issue
substance
of
whether
the
actually caused
Chapman v. Procter
& Gamble
Distrib., LLC, 766 F.3d 1296, 1308 (11th Cir. 2014); McClain, 401
F.3d at 1239 (Specific causation focuses on questions such as:
"was plaintiff exposed to the toxin, was plaintiff exposed to
enough of the toxin to cause the alleged injury, and did the toxin
in fact cause the alleged injury?").
When a plaintiff proceeds
against a defendant for an alleged asbestos-related injury, "the
threshold for every theory is proof that an injured plaintiff was
exposed to asbestos-containing products for which the defendant is
responsible."
F.2d
1480,
specific
Blackston v. Shook & Fletcher Insulation Co., 764
1481
(11th
causation
Cir.
1985).
requirement,
the
To
ultimately
plaintiff
satisfy the
must
show
the
exposure to the defendant's asbestos was more than de minimis.
Scapa Dryer Fabrics, Inc. v. Knight, 788 S.E.2d 421, 425-26 (Ga.
2016) (citing John Crane, Inc. v. Jones, 604 S.E.2d 822, 825 (Ga.
2004)).
To survive summary judgment. Plaintiff must direct the Court
to evidence that (1) Ms. Hanson was actually exposed to asbestos
in Cashmere Bouquet and (2) the exposure was, under Georgia law,
greater than de minimis and a meaningful contributing factor to
her diseases.
If Defendant shows the absence of evidence on these
10
requirements, Plaintiff must point to evidence that Defendant, as
the movant, overlooked or ignored.
Fitzpatrick, 2 F.3d at 1116.
a. Ms. Hanson's Exposure to Asbestos
It is undisputed that asbestos is not an intended ingredient
of Cashmere Bouquet.
(Def.'s Statement of Undisputed Material
Facts, Doc. 87-1, SI 7 (admitted).)
case
differs
occupational
from
most
exposure
Therefore, at the outset, this
occupational
cases,
exposure
asbestos
is
cases.
generally
a
common, and uniform ingredient of the defendant's product.
In
known,
See,
e.g., Scapa Dryer, 788 S.E.2d at 423 (some of manufacturer's pipes
and boilers were insulated with a material containing asbestos and
some
manufacturing
Butler,
712
S.E.2d
processes
at
539
used
yarn
(detailing
asbestos-containing products).
containing
plaintiff's
asbestos);
exposure
to
As a result, to survive summary
judgment on specific causation in this case. Plaintiff is first
required to put forth evidence that Plaintiff was actually exposed
to asbestos present in Cashmere Bouquet.
Plaintiff fails to direct
the court to such evidence.
The Parties point to substantial evidence supporting their
competing positions regarding the presence of asbestos in talc and
talc mines, generally; asbestos in talc mines harvested for the
talc used in Cashmere Bouquet, specifically; and tests regarding
specific samples of packaged Cashmere Bouquet.
However, to survive
summary judgment. Plaintiff needed to point to evidence that she
was in proximity to Cashmere Bouquet contaminated with asbestos.
11
See Adamson v. Gen. Elec. Co., 694 S.E.2d 363, 367 (Ga. Ct. App.
2010}
('"To
present
survive
evidence
containing
summary judgment, the
that
product
the
was
used
manufacturer
at
the
appellant
defendants'
location
of
^needed
to
asbestos-
[plaintiff's]
employment and that he was in proximity to that product at the
time it was being used.").
As
evidence
that
Ms.
Hanson
was
in
the
proximity
of
contaminated Cashmere Bouquet, Plaintiff offers test results and
testimony of proffered expert. Dr. Ronald E. Gordon, Ph.D.
In his
first test of a sample from a Cashmere Bouquet container.
Dr.
Gordon concluded to a reasonable degree of scientific certainty
that the sample did not contain asbestos.
Dep., Doc. 147-23, at 98-100.)
(Gordon May 1, 2017
Since that time, Dr. Gordon has
tested '^a little over" fifty containers of Cashmere Bouquet from
the 1930s to the 1990s.
(Gordon Aff., Doc. 148-38, 5 7; Gordon
May 1, 2017 Dep. at 100.)
Dr. Gordon opines through extrapolation
that despite the initial negative test, because all of the over
fifty
samples
containers
of
he
subsequently
Cashmere
tested
Bouquet
contained
necessarily
asbestos,
contain
all
asbestos.
(Gordon May 1, 2017 Dep. at 101.)
On the issue of exposure within the overarching element of
causation, showing that a small number of samples, at some point,
contained the toxic substance does not create a jury issue.
described by the Fifth Circuit:
12
As
It does not follow, however, that the delivered talc
actually contained asbestos. It is true that a study by
Dr. William E. Longo, Ph.D., apparently concluded that
[manufacturer's]
talc
contains
[three-percent]
asbestos.
That study, however, was based on small
samples from the [defendant's] plant some time in 1987.
There is no evidence that talc containing traces of
asbestos in 1987 indicates asbestos in talc delivered
several years earlier. To the contrary, asbestos does
not appear uniformly in talc. . . . Plaintiffs had, in
short, no evidence that [manufacturer's] talc contained
asbestos during the years in which plaintiffs allege
that they were injured. We hold, therefore, that the
district court did not err in awarding summary judgment
in favor of [manufacturer].
Slaughter v. S. Talc Co., 949 F.2d 167, 170-71 (5th Cir. 1991).
As in Slaughter, there is no evidence of Ms. Hanson's exposure to
the same talc that Dr. Gordon tested.
Dr. Gordon confirms that he
cannot opine as to the presence of asbestos in Ms. Hanson's
Cashmere Bouquet:
Q: And you have not tested any talcum powder from a container
of Cashmere Bouquet that was actually owned or used by
Ms. Hanson, correct?
A: Correct.
(Gordon May 1, 2017 Dep. at 15-16.)
Q: And with respect to the three particles found in the lung
tissue and the one particle found in the ovarian tissue,
you're not able to say to a reasonable degree of scientific
certainty that it originated in the Cashmere Bouquet talcum
powder, correct?
A: Well -
Q: You can't say that?
A: I can't - I can't prove that it came directly from a
Cashmere Bouquet container.
(Id. at 53.)
13
Q: You never tested any talcum powder that was personally
used by Mrs. Hanson for asbestos contamination, correct?
A: Correct.
(Id. at 55.)
Q: Dr. Gordon, you've testified on multiple occasions under
oath that you can only testify to a reasonable degree of
scientific certainty about the contents of Cashmere Bouquet
containers that you actually tested, correct?
A: Correct.
(Id. at 99.)
Q: For now, though, sir, can we agree that you cannot opine,
to a reasonable degree of scientific certainty, about the
contents of any talcum powder you did not personally test
or personally review test data?
A: I can't.
(Daubert Hr'g, Jackson v. Colqate-Palmolive Co., No. 15-01066
(TFH) (D.D.C. Feb. 13, 2017), Doc. 61-7, at 129 (excerpts).)
The
fifty-plus
samples
that
Dr.
Gordon
tested
are
insufficient to create a fact issue as to actual exposure, the
threshold issue for an asbestos exposure action.
Blackston, 764
F.2d at 1481. Under Georgia law, without evidence that a plaintiff
is exposed to asbestos, a tort claim premised on asbestos exposure
cannot succeed as a matter of law.
In Hoffman v. AC&S, Inc., the court affirmed summary judgment
in favor of two defendants because the plaintiff failed to present
evidence that asbestos-containing products were in the shipyard at
the same time as plaintiff.
2001).
548 S.E.2d 379, 383-84 (Ga. Ct. App.
A witness testified that a certain brand of insulation and
14
insulating cement were used in the shipyard at some point.
383.
Id. at
The witness, however, could not state when the asbestos-
containing products were in the shipyard.
Id.
Therefore, there
was no evidence creating a genuine issue of material fact regarding
whether
the
asbestos-containing
product
was
in
the
shipyard
concurrently with the plaintiff. Id. The Georgia Court of Appeals
determined, "'To
infer from this testimony that . . . asbestos
products were used at the shipyard during [plaintiff's] threemonth span . . . would be sheer speculation."
Id. (^^Guesses or
speculation which raise merely a conjecture or possibility are not
sufficient to create even an inference of fact for consideration
on summary judgment.") (internal citation omitted).
Plaintiff's
allegation
that
Ms.
Hanson
was
exposed
to
Cashmere Bouquet containing asbestos is analogous to Hoffman.
First, through the testimony and reports of Plaintiff's experts.
Plaintiff can show that some containers of Cashmere Bouquet contain
asbestos.
However, as in Hoffman, Plaintiff is unable to point to
evidence showing that Ms. Hanson was exposed to containers of
Cashmere Bouquet that did, in fact, contain asbestos.
Accepting
as true that Ms. Hanson used Cashmere Bouquet regularly from 1961
to 1973 does not change the analysis.
Plaintiff does not point to
evidence that in Dr. Gordon's test of approximately fifty samples
of Cashmere Bouquet representing approximately sixty years of
Cashmere Bouquet production, any of the samples represented the
twelve-year window that Ms. Hanson used the product.
15
Even if Dr.
Gordon's test did sample Cashmere Bouquet manufactured during the
twelve-year period of Ms. Hanson's use, there is no evidence that
he tested a sample that Ms. Hanson actually used.
If the Court were to accept Plaintiff's position that some
contamination is evidence that Ms. Hanson was exposed to asbestos,
the Court would allow a jury to find a defendant liable exclusively
on the following reasoning: (1) a
product sometimes contains
asbestos; (2) plaintiff used the product in question; (3) asbestos
causes mesothelioma; (4) plaintiff contracted mesothelioma; and
(5) therefore, the product caused plaintiff's mesothelioma.
This
reasoning, however, bypasses the established rule in Georgia that
a plaintiff show actual exposure to satisfy the specific causation
requirement.
Instead, the reasoning permits the jury to find
liability on an assumption of exposure and the general cause and
effect relationship between asbestos exposure and mesothelioma.^
For
this
reason,
courts
grant
summary
judgment
when
a
plaintiff alleges a product caused an exposure-related illness by
showing only that the product sometimes contains the toxin at
issue.
See, e.g., Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488,
^ McClain cautioned against confusing a temporal relationship with
causation.
401
F.3d
at
1243
(^^P]roving
a
temporal
relationship • . . does not establish a causal relationship. In other
words, simply because a person takes drugs and then suffers an injury
does not show causation.
Drawing such a conclusion from temporal
relationships leads to the blunder of the post hoc ergo propter hoc
fallacy. The post hoc ergo propter hoc fallacy assumes causality from
temporal sequence. It literally means, ''after this, because of this.")
(citing Post Hoc Ergo Propter Hoc, Black's Law Dictionary (7th ed. 1999)).
16
497-98 (6th Cir. 2005); Hoffman, 548 S.E.2d at 384 (finding that
evidence of proximity to a product that routinely contains asbestos
is
insufficient
requirement
of
to
survive
summary
exposure).
The
judgment
opposite
on
the
threshold
conclusion
would
effectively create a presumption that showing a product sometimes
contains asbestos is sufficient to establish actual exposure to
asbestos.
The Eleventh Circuit has rejected similar invitations
to create presumptions involving asbestos exposure in the past.
See Blackston, 764 F.2d at 1484 (refusing to create judicial
presumption that exposure exists when an asbestos-containing
product
and
plaintiff
were
simultaneously
at
a
place
of
employment).
In conclusion, Defendant met its initial summary judgment
burden to show no genuine issue of material fact as to Ms. Hanson's
asbestos exposure.
In response. Plaintiff failed to present
evidence of such an exposure in the Cashmere Bouquet she used.
Finding that Ms. Hanson was exposed to asbestos in her Cashmere
Bouquet would require the jury to speculate that because some
containers of Cashmere Bouquet contain asbestos, Ms. Hanson s
containers of Cashmere Bouquet contained asbestos.
This type of
speculation does not create a genuine issue of material fact.
Hoffman, 548 S.E.2d at 383-84.
b. Ms. Hanson's Level of Exposure
Even
if
Dr.
Gordon's
study
qualified
as
evidence
that
Ms. Hanson suffered exposure to asbestos through Cashmere Bouquet,
17
Defendant has shown that there is no evidence regarding the level
of that exposure and the contribution of Ms. Hanson's Cashmere
Bouquet to her mesothelioma and ovarian cancer.
Plaintiff fails
to demonstrate evidence refuting Defendant's contention concerning
Plaintiff's lack of evidence.
Georgia rejects the notion that
showing a plaintiff experienced any exposure to asbestos greater
than
naturally
occurring
background
establish proximate cause.
levels
is
sufficient
to
Scapa Dryer^ 788 S.E.2d at 425-26.
Yet, Plaintiff, in brief, relies on the theory that any exposure
above background causes asbestos-related diseases.
(Pis.' Br. in
Opp'n to Mot. for Summ. J., at 18-19.)
Plaintiff cites several studies, including two government
studies, for the proposition that any above background exposure is
sufficient
to
cause
asbestos-related
disease:
(1)
''Because
asbestos fibers remain in the body, each exposure increases the
likelihood
of
developing
an
asbestos-related
disease;"
(2)
"Researchers have concluded that there is no threshold below which
there is no risk from exposure to asbestos;" and (3)
Asbestos
exposures as short as [sic] in duration as a few days have caused
mesothelioma in humans.
can
Every occupational exposure to asbestos
cause injury of disease; every occupational exposure to
asbestos contributes to the risk of getting an asbestos-related
disease."
(Id.) (citations omitted).
Regardless of the validity
of these studies, Georgia's rejection of the "any exposure above
background" causation theory solidifies that these studies do not
18
constitute evidence or provide the standard for proving legal
causation.
Moreover,
the
Eleventh
Circuit
has
distinguished
governmental agency risk analysis from legal causation.
McClain,
401
F.3d
at
1249
(distinguishing
governmental
See
cost-
benefit and risk analysis from legal causation).
Although
Scapa
Dryer
assessed
admissibility
of
expert
testimony, the Court excluded plaintiff's expert by reasoning that
pointing to any asbestos exposure does not prove that the asbestos
caused the injury in question.
788 S.E.2d 421.
In Scapa Dryer,
plaintiff's expert testified that each exposure above background
levels contributed to plaintiff s mesothelioma regardless of the
extent of each exposure. Id. at 424. Excluding plaintiff's expert
on relevance grounds, the Georgia Supreme Court determined that
merely testifying that any exposure to asbestos above background
levels caused an asbestos-related disease did not assist the jury
with its task in determining legal causation: whether the exposure
was more than de minimis and at a level sufficient to cause the
disease.®
Id. at 426-27.
Following Scapa Dryer, if a de minimis
exposure to asbestos will not support the jury finding the exposure
® Plaintiff acknowledges that the level of proof for the ovarian
cancer is higher than for mesothelioma. Plaintiff states that while
mesothelioma requires proof that the asbestos exposure was a ^^meaningful"
factor, ovarian cancer requires a showing that the asbestos exposure was
a ^^substantial" factor.
(Pis.' Br. in Opp'n to Mot. for Summ. J., at
24.) Because the burden on causation for ovarian cancer is higher.
Plaintiff s failure to create a genuine issue of material fact as to the
cause of Ms. Hanson's mesothelioma demands a finding that there is no
genuine issue of material fact as to the causation of her ovarian cancer.
19
caused the asbestos-related disease, then the plaintiff must show,
as a matter of law, an exposure greater than de minimis.
As Plaintiff offers no evidence that Ms. Hanson was exposed
to asbestos through her use of Cashmere Bouquet, Plaintiff faces
an even more difficult task of pointing to evidence that her
containers
of
Cashmere
Bouquet
exposed
her
sufficient levels to cause her mesothelioma.
to
asbestos
at
In an attempt to
direct the Court to such evidence. Plaintiff relies on studies of
Dr. Gordon and additional medical expert testimony.
However, none
of the proffered experts offer evidence that Ms. Hanson's specific
exposure was sufficient to cause her cancer. Instead, Plaintiff's
experts (1) discuss asbestos exposure levels that users of Cashmere
Bouquet may have experienced, generally; and (2) state that because
Plaintiff contracted mesothelioma, her exposure to asbestos in
Cashmere
Bouquet
was
necessarily
above
background
Dr. Gordon's study regarding exposure levels to
levels.
asbestos in
Cashmere Bouquet, like his studies on the existence of asbestos in
Cashmere Bouquet, tested random samples.
(Docs. 151-6, 151-7,
151-8, 151-9, 151-10, 151-11, 151-12, 151-13.) As discussed supra,
he cannot offer an opinion as to Ms. Hanson's exposure because he
did not test the samples that she used.
Dr. Gordon testified to
such in this case and others in which he offered expert opinions:
Q:
If your lab does a
anthophyllite
fiber,
digestion
is
that
study and finds one
automatically
above
background?
A: Yes, if it's five microns or greater in length.
20
(Gordon May 1, 2017 Dep. at 65—66.)
Q: You have no evidence that Ms. Jackson actually used a
contaminated container of talcum power; do you?
A: I don't. But it has always been my assessment, based on
finding it in all the containers that I have actually
looked at, to extrapolate that it should be in all of them.
To what degree, I don't know.
(Daubert Hr'g, Jackson v. Colqate-Palmolive Co., No. 15-01066
(TFH) (D.D.C. Feb. 13, 2017), Doc. 61-7, at 128-29.)
Q: You have not performed any type of exposure assessment,
you're not going to be offering any opinions of exposure
assessment of Mrs. Hanson, correct?
A: No.
(Gordon May 1, 2017 Dep. at 44.)
Q; Because the mineral particles you found in Ms. Jackson's
tissue cannot be demonstrated to a reasonable degree of
scientific certainty they came from Cashmere Bouquet talcum
powder, you would be asking this jury to speculate that
the fibers that you found in tissue can be correlated with
the fibers that you found in a product; correct?
A: Yes.
(Daubert Hr'g, Jackson v. Colqate-Palmolive Co., No. 15-01066
(TFH) (D.D.C. Feb. 13, 2017), Doc. 67-4, at 100 (excerpts).)
Dr.
Gordon's testimony confirms that his studies are insufficient to
establish causation under Georgia law.
He is unable to opine
regarding the level of Ms. Hanson's exposure and assumes above
background exposure upon discovering asbestos in his digestion
studies.
Without deciding the reliability of the opinion under
21
Daubert,
his
opinions
do
not
create
an
issue
of
fact
as
to
causation.
The
opinions
of
Plaintiff s
medical
expert
on
specific
causation also fail to create a genuine issue of material fact.
In his expert report, Dr. Kradin states, ''When it comes to the
disease mesothelioma, no occupational exposure can scientifically
be
discounted
or
considered
irrelevant
—
all
occupational,
domestic and para-occupational exposures, which by definition are
above background, cause the disease." (Kradin Expert Report, Doc.
119-5, at 4.)
He continues, "There is no level of asbestos
exposure above background levels that has been shown to not
contribute to causing mesothelioma.
It is generally accepted in
the medical and scientific community that all levels of asbestos
exposure
above
mesothelioma."
background
(Id. at 12.)
levels
contribute
to
causing
Finally, Dr. Kradin confirms that
his opinion is that any exposure above background is a substantial
cause of mesothelioma:
If a person sustains asbestos exposures above
background/ambient levels of exposure as reflected by an
occupational,
para-occupational
and/or
domestic
asbestos exposure and goes on to develop mesothelioma,
it is my opinion that the exposures above background
levels, taken in context of the individual's total
(cumulative) asbestos exposures, are significant and
non-trivial, and are medical and scientific causes in
the development of the individual's mesothelioma. In
the legal context, such asbestos exposures are often
described or classified as 'substantial contributing
factors' or 'contributing causes' or 'significant
factors' to the development of the
individual's
mesothelioma.
It is not my opinion that a 'single
fiber,' or that 'each and every' or 'any' exposure to
22
asbestos, even those below background levels, are a
substantial contributing factor in causing mesothelioma.
(Id.)
When his report is broken down to its foundation. Dr. Kradin
opines that ^^each and every" or "any" exposure above background is
a
substantial
contributing
factor
to
the
contraction
of
mesothelioma, and, therefore, that any above background exposure
to asbestos in Cashmere Bouquet caused Ms. Hanson's mesothelioma.
Scapa Dryer determined causation requires a showing more than what
Dr. Kradin offers because Dr. Kradin's opinion does not meet the
"de minimis" causation requirement:
According to [plaintiff's expert], the precise point at
which cumulative exposure is sufficient to cause any
particular
person
to
develop
mesothelioma
is
not
scientifically knowable, and for that reason, when a
person
actually
attributed
to
has
his
mesothelioma,
cumulative
it
exposure
can
as
only
a
be
whole.
Because each and every exposure to respirable asbestos
in excess of the background contributes to the
cumulative exposure, [plaintiff's expert] reasoned, each
and every exposure in excess of the background is a
contributing cause of the resulting mesothelioma,
regardless of the extent of each exposure. . . . But by
his testimony, [plaintiff's expert] essentially told the
jury that it was unnecessary to resolve the extent of
exposure . . . if the jury determined that plaintiff was
exposed at the facility to any asbestos beyond
background, that exposure contributed to his cumulative
exposure, and according to [plaintiff's expert], it was,
therefore, a contributing cause of the mesothelioma.
788 S.E.2d at 423-24, 426 (emphasis in original).
Additionally,
Dr. Kradin relied on the aforementioned studies of Dr. Gordon,
23
and, therefore, is unable to express an opinion as to Ms. Hanson's
specific level of exposure."^
In essence. Defendant shows that Plaintiff offers no evidence
establishing Ms. Hanson's specific level of exposure from Cashmere
Bouquet was greater than de minimis.
Plaintiff fails to rebut.
Both of Plaintiff's experts (1) assume the presence of asbestos in
Ms.
Hanson's Cashmere Bouquet and (2) assume the quantity of
asbestos in Ms. Hanson's Cashmere Bouquet was sufficient to cause
Dr. Kradin acknowledged Ms. Hanson's exposure levels cannot be
established:
Q: And you would have no way of determining the percentage of
powder in a container of Cashmere Bouquet that was actually
used by Ms. Hanson. Correct?
A: No.
I can only give you the type of description that she
gives in her deposition for how often and with what
frequency, duration that she used this type of talcum
powder.
Q: Okay.
And in order to attribute that Ms. Hanson's use of
Cashmere
Bouquet
was
substantial,
we
would
establish that it was above ambient levels.
need
to
Correct?
A: Again I — I can't imagine that it would not be above
ambient levels.
A: — I wanted to clarify my answer as well because I think
the question was put to me as to whether or not I would to
- it would
need
to be
established
that Mrs. Hanson's
exposures were above background. I think there would be
no way at this point to establish in real time what her
exposures were, and so we would have to rely upon
simulations such as what was put forth — in the Gordon
study.
(Kradin Dep., Doc. 148-59, at 48-50.)
24
her mesothelioma.
In Georgia, the specific causation requirements
demand evidence of a level of exposure sufficient to cause the
disease in question, not an assumption of exposure.
evidence
on
Plaintiff's
the
essential
claims
related
element
to
Ms.
of
Without any
specific
Hanson's
causation.
alleged
asbestos-
exposure necessarily fail.
2. Punitive Damages
Defendant filed a motion for partial summary judgment as to
Plaintiff's claim for punitive damages.
(Doc. 74.)
Because a
claim for punitive damages is derivative of a plaintiff s tort
claim, a claim for punitive damages cannot survive absent the
underlying tort claim.
Mann v. Taser Int'l, Inc., 588 F.3d 1291,
1304-05 (11th Cir. 2009) fBecause the court has concluded that
[defendants] are entitled to summary judgment with respect to all
the [plaintiff's] substantive claims, the claim for punitive
damages cannot survive.").
judgment
on
Plaintiff's
Defendant is entitled to summary
tort
claims.
Accordingly,
summary
judgment is required as to Plaintiff's claim for punitive damages
as a matter of law.
IV. CONCLUSION
Based on the foregoing, it IS HEREBY ORDERED that Defendant's
motion for summary judgment (Doc. 87) is GRANTED, Defendant's
motion for partial summary judgment (Doc. 74) is GRANTED, and
Defendant's
motion
for
oral
argument
25
on
its
summary
judgment
motions (Doc. 129) is DENIED.
to
ENTER
JUDGMENT
in
favor
Accordingly, the Clerk is directed
of
Defendant
on
all
of
Plaintiff's
claims, TERMINATE all other pending motions, if any, and CLOSE
this case.
ORDER
ENTERED
at
Augusta,
Georgia,
this
September, 2018.
X
UNITED/ STATES DISTRICT COURT
:RN DISTRICT OF GEORGIA
26
Of
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