Preview
KIMBERLY O. BRANSCOME (SBN 255480)
kimberly. branscome@kirkland.com
JAY L. BHIMANI (SBN 267689) . FELED
jay. bhimani@kirkland.com Superior Court of California
BENJAMIN M. SADUN (SBN 287533) County of Los Angeles
benjamin. sadun@kirkland.com
KIRKLAND & ELLIS LLP NOV 14 2018
333 South Hope Street
erri R. Carter, vyecutive Ofticer/Clerk
Los Angeles, California 90071
Telephone: +1 213 680 8400
Facsimile: +1 213 680 8500
By _ LUML LIZ
Steven Drew
, Deputy
F. CHADWICK MORRISS (Pro Hac Vice)
chad.morriss@kirkland.com
KIRKLAND & ELLIS LLP
1301 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Telephone: +1 202 389 5000
10 Facsimile: +1 202 389 5200
11 Attorneys for Defendants
JOHNSON & JOHNSON and
12 JOHNSON & JOHNSON CONSUMER INC.
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
FOR THE COUNTY OF LOS ANGELES
15
Coordinated Proceeding No. BC665257
16 Special Title (Rule 3.550)
Assigned to the Honorable Rafael A.
17 LAOSD ASBESTOS CASES
Ongkeko, Dept. 11
18 NANCY CABIBI and PHIL CABIBI, DEFENDANTS JOHNSON & JOHNSON
+19 AND JOHNSON & JOHNSON
Plaintiffs, CONSUMER INC.’S MOTION FOR
20 JUDGMENT NOTWITHSTANDING THE
V. VERDICT AND MEMORANDUM OF
21 POINTS AND AUTHORITIES IN
JOHNSON & JOHNSON, AND JOHNSON SUPPORT OF MOTION FOR
22 AND JOHNSON CONSUMER INC. JUDGMENT NOTWITHSTANDING THE
23. VERDICT
Defendants. Action filed: June 15, 2017
24 Trial Date: August 19, 2019
25 Entry of Judgment: October 18, 2019
DATE: December 10, 2019
26 TIME: 11:00 a.m.
LOCATION: SS Dept. 11
27
28 LJ ORIGINAL
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
TABLE OF CONTENTS
Page
INTRODUCTION ooo cceessesecsesseseeseecseeeesesseseesecseseesessesecsesseeeseesecseeeesessesasseaesesasatereseeeaes 1
IL. STATEMENT OF PACTS scssisssssscscisssaanssasasscaacnsenencssscnsncnegesseenccnseveenenecnessescsssonasesseueneneneeneats 2
UL. STATEMENT OF LAW uci cccesessssesetecsesseceseseeseseseeesseeeesesesacsesecsesessesesecseaeeeeasaeseseeesacseetenes 2
IV. ARGUMENT uu. cccessssssssseseseeeeseseseeseseseeseseseessesessesesesaesesassesecseseassesacseeesscseseeesacacseseeeacseees 3
A. Plaintiffs did not produce substantial evidence that Ms. Cabibi was
exposed to asbestos from using a Johnson & Johnson product .....c.ccccsescsesssesseeseeeees 3
B. Plaintiffs did not produce substantial evidence that Ms. Cabibi’s use of a
Johnson & Johnson product was a substantial factor in causing her
10 PTNOS
OTE GROTIG cassnowswsnss cxvunearasssaiavessasaassivianeascess iailsasnenteoazonecesereeseceneersenapecnesuerenvepgeney eres 7
Li CONCLUSION .W...ccccccccsesessesesesscsessessscseeesesesecscseeecsesesseseeecsenecsesesacaesesaesesesateceesasacsesteeeacscees 9
12
13
14
15
‘16
17
18
19
20
Zl
22
23
24
25
26
27
28 i
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
TABLE OF AUTHORITIES
Page(s)
Cases
Cooper v. Takeda Pharm. Am., Inc.,
239 Cal. App. 4th 555 (2015) oe eeesssssesesesesesesesssessssescseseseeeessscsesesevscacsesesesessvacscscecacecscscesscacseseesseees 8
Gonzales y. City of Atwater,
6 Cal. App. Sth 929 (2016) vc escssssesssessssseseeesssssscssscseseseeescsesesseevacscsesevsvsvsvssscacscscscscacecacsseseseavavacas 2
Guillory v. Am. President Lines, Ltd,
230 Cal. App. 2d 296 (1964) on eecccsssssssssssesssesesesescsesessssscsesesvsscsescscscscssscsssssvscsvsssesscacacsesvsnsacasavavavars 5
Jones v. Ortho Pharm. Corp.,
10 163 Cal. App. 3d 396 (1985) oe csseessssesesesesesesesesesecscscseseseeesacsssesesscscscsesessvsvscacscssscscscecscnsnssanenaes 3,4
11 Lyons v. Colgate-Palmolive Co.,
16 Cal. App. Sth 463 (2017) w.cccesessssssssssesssesesssesesessescscsesesesessescsssesesscscscsesessscscacacacsessacececscuceseceenevaes 7
12
McGonnell v. Kaiser Gypsum Co.,
13 98 Cal. App. 4th 1098 (2002) w.ccccssesesssssscsssscssscsesessssescscsesesecscscscsesssscscscscecssescscscscsvsvavavavavacavaces 3,4
14 Miranda v. Bomel Constr. Co., Inc.,
15 187 Cal. App. 4th 1326 (2010) wc ccccsesssesesesesesescesescssscscsesecscscscsesesscscscscsessvsvscecscscscssacacacseaceees 3, 6,7
16 Newland y. City of L.A.,
24 Cal. App. Sth 676 (2018) ..cccccccsscsesssessssssssesescscscsesesececsescsesesssscscscsessvsvsvscsesesessvsvscscsvavavavavavavacaees 2,3
17
People v. Boyette,
18 29 Cal. 4th 381 (2002), as modified (Feb. 11, 2003) ...ccccccsessssesesescssssssescsescsssssscscscscscscscsescscacseseseeeeeens 5
19 People v. Moore,
51 Cal. 4th 386 (2011) cc eesesesssessesssesesesesesesessssssssesesesesesecscsesesesesacssaceessssscscscsescesssesesesesesessscseavseas 5
20
i People v. Vang,
52, Cal, 4th T0388 (QOL1) sscvssssssseisssacscssoroncansnetereanencscosensanersveseevenevesvertepestonne conseneuvnrgetaneserarvavastonvensanavenses 5
oe
2
Rutherford v. Owen-lll., Inc.,
PG-Cal, 40 953 QO TAY vesccsccoressnnnnensass neues snsasssevsiseis sidssesanctstcsenresverarennasoneessntnetensneannersaceneasagevesy 3, 4, 8,9
24 Statutes
25. Cal. Civ. Proc. Code § 12a... cccccscsssssssesssscseescseescecsesscscescsacseescsecsesscsscsecsecscsscsecssssssscsesscscsacsceacassevsceevanere 2
‘26
Cal. Civ. Proc. Code § 135 vccciessesesssseessessseseesesesesecsesessssesesscsesessesessesecacsevacsesevassesesscsesecscstscsessvscsceeeacs 2
21
28 il
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
Cal. Civ, Prod, Goda S029 cos wsccsxaasnsneraes cancuxanancinns vin vasnnanannawanessnedanan si ceniaamannes na eneaNNR AT RNaEKEATENOENE 1,2
Cal. Civ. Proc. Code § 629 w..ccccccccssccsscsssecsecsecssecesccsseceseeeseeessecessecesecseaecsaeeesaeceseeeaeeaeeeeseeeeaeeeseeseeeeeens 2
Cal. Civ. Proc. Code § 659 ....ccccsccsssssssesssesseessesecsscesecesessecsseeseceseceaessesesecesscseseaeceaesecesessesseceaseaecseseeeeaeents 2
Cal. Civ. Proc. Code § 660 oo... ccccesccssccssscssecssecssecesecsseceseeeseecesecesueceseeseaeceseeceseceeeseseseaeeeseseaesesesnesteeeeaeenae 2
Reels CHR, PGs COU GO isc cinensascis cnn ens hs canninas.nn canis iat chsh dS ck ARS SAsGeAsh ktbANiath at Ha AO AH RTA 2
DO
Cal. Civ. Proc. Code § 1005.5 wc. ccccescescssscessessscessesessessecesecsssecesecseescesessesesesecenseessecesecesseeseenseeaeesaeeeseesnees 2
nN
Cal. Gov’t Code § 6700(a)(1) .....ccesccsscssscssecssecssecssecessceseceesecesecessecessseesecessecssecessesesecesecesscesesesseeseaeeeeeenss 2
ao
\o
10
11
12
13
14
15
16
17
-18
19
20
21
9)
v3
24
25
26
2d
28 iil
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
I. INTRODUCTION
The Court should enter judgment notwithstanding the verdict in favor of Defendants Johnson &
Johnson and Johnson & Johnson Consumer Inc. because Plaintiffs Nancy and Phil Cabibi did not prove
that Ms. Cabibi’s mesothelioma was caused by exposure to asbestos from using a Johnson & Johnson
product. See Cal. Civ. Proc. Code § 629. Plaintiffs needed to prove two things at trial to establish
causation—that Ms. Cabibi was exposed to asbestos from using a Johnson & Johnson product and that
this exposure was a substantial factor in causing Ms. Cabibi’s mesothelioma. Plaintiffs failed on both
fronts.
Plaintiffs did not prove that Ms. Cabibi was exposed to asbestos from using a Johnson &
‘10 Johnson product. Plaintiffs relied on the testimony of Dr. David Madigan, a statistics professor, to
11 establish exposure. Dr. Madigan testified that Ms. Cabibi used approximately 200 bottles of asbestos-
12 containing Johnson’s Baby Powder between 1967 and 2017. Dr. Madigan’s opinion relied on Dr.
13 William Longo’s testing of 84 bottles of baby powder for the presence of asbestos. However, upon
14 further scrutiny, only 56 of these bottles were relevant to Ms. Cabibi’s usage. Nevertheless, Dr. Madigan
15 simply assumed that all the bottles tested by Dr. Longo were representative of all baby powder bottles
16 ever produced and those that Ms. Cabibi used. Plaintiffs never proved those assumptions to be true.
17 Because Dr. Madigan’s opinion rests on unsupported assumptions about Dr. Longo’s testing, Dr.
18 Madigan’s opinion is of no evidentiary value. On this basis alone, the Court should grant Defendants’
‘19 motion for judgment notwithstanding the verdict.
20 Plaintiffs did not prove that any exposure to asbestos from using a Johnson & Johnson product
21 was a substantial factor in causing Ms. Cabibi’s mesothelioma. Plaintiffs’ experts agreed that
22 mesothelioma is a dose-response disease where only exposures above a “background” level contribute to
3 disease development. But Plaintiffs failed to provide any evidence that Ms. Cabibi was exposed to an
24 amount of asbestos above background. Accordingly, even if the Court finds that Plaintiffs proved that
5 Ms. Cabibi was exposed to asbestos from using a Johnson & Johnson product, the Court should still
26 grant Defendants’ motion for judgment notwithstanding the verdict.
27 In support of this motion, Defendants below incorporate their arguments from their motion for
‘28 1
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
nonsuit filed on September 14, 2019 and argued on September 18, 2019.
Il. STATEMENT OF FACTS
Nancy Cabibi used Johnson & Johnson talcum powder products from 1967 to 2017. In 2017,
Ms. Cabibi was diagnosed with mesothelioma. Ms. Cabibi and her husband, Phil Cabibi, sued Johnson
& Johnson and Johnson & Johnson Consumer Inc. in June 2017. Plaintiffs alleged that Ms. Cabibi’s
mesothelioma was caused by exposure to asbestos from using Johnson & Johnson products.
On September 27, 2019, the jury returned a verdict in favor of Plaintiffs on their manufacturing
defect claim. In reaching its verdict, the jury found that a defect in the process of manufacturing Johnson
& Johnson’s talcum powder products allowed asbestos to contaminate the products and ultimately
10 caused Ms. Cabibi’s mesothelioma. The Court subsequently entered judgment consistent with the jury’s
“11 verdict. Defendants then timely noticed the motion for judgment notwithstanding the verdict.
12 Defendants have moved for judgment notwithstanding the verdict because Plaintiffs failed to prove that
13 Ms. Cabibi’s mesothelioma was caused by exposure to asbestos from using a Johnson & Johnson
14 product.’
15 I. STATEMENT OF LAW
16 A court “shall render judgment in favor of the aggrieved party notwithstanding the verdict
7 whenever a motion for a directed verdict for the aggrieved party should have been granted had a
18 previous motion been made.” Cal. Civ. Proc. Code § 629. “A trial court may grant a motion for JNOV
19 only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict,
20 that there is no substantial evidence to support it.” Gonzales v. City of Atwater, 6 Cal. App. 5th 929, 946
21 (2016). “For evidence to be substantial, it must be of ponderable legal significance, reasonable, credible,
22 and of solid value.” Newland v. City of L.A., 24 Cal. App. 5th 676, 684 (2018). “The plaintiff must
23
24
Judgment was entered on October 18, 2019. Notice of entry of judgment was served by the clerk that
25 same day. Defendants made this motion for judgment notwithstanding the verdict when the motion was
noticed on November 4, 2019. (See Cal. Civ. Proc. Code §§ 12a, 135, 629, 659, 1005.5; Cal. Gov’t
26
Code § 6700(a)(1).) Accordingly, the Court must decide this motion no later than January 2, 2020. (See
27 Cal. Civ. Proc. Code §§ 660, 661.)
28 a
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
[have] produce[d] evidence [at trial] which supports a logical inference in h[er] favor and which does
more than merely permit speculation or conjecture.” Jones v. Ortho Pharm. Corp., 163 Cal. App. 3d
396, 402 (1985). “The focus is on the quality, not the quantity, of the evidence.” Newland, 24 Cal. App.
5th at 684. (quotation marks omitted).
IV. ARGUMENT
Plaintiffs did not produce substantial evidence that Ms. Cabibi’s mesothelioma was caused by
exposure to asbestos from using a Johnson & Johnson product. At trial, Plaintiffs bore the burden of
proving that Ms. Cabibi’s mesothelioma was caused by exposure to asbestos from using a Johnson &
Johnson product. In Rutherford v. Owen-ill., Inc., 16 Cal. 4th 953, 982 (2014), the Supreme Court of
10 California established the “controlling two-part test for determining whether exposure to asbestos from a
11 particular product was a legal cause of a plaintiff's injury in an asbestos-induced personal injury case.”
12 Miranda vy. Bomel Constr. Co., Inc., 187 Cal. App. 4th 1326, 1338 (2010). Under the Rutherford test, a
13 plaintiff must first “establish some threshold exposure to the defendant’s defective asbestos-containing
14 products.” Rutherford, 16 Cal. 4th at 982. If a plaintiff proves a threshold exposure, she must then
15 establish to a “reasonable medical probability that a particular exposure or series of exposures was a
16 ‘legal cause’ of [her] injury, i-e., a substantial factor in bringing about the injury.” Jd. The Court should
17 grant Defendants’ motion for judgment notwithstanding the verdict because Plaintiffs failed to carry
18 their burden at both steps of the Rutherford test.
19 A. Plaintiffs did not produce substantial evidence that Ms. Cabibi was exposed to
20 asbestos from using a Johnson & Johnson product
a2 “A threshold issue in asbestos litigation is exposure to [a] defendant’s product” that contained
22 asbestos. McGonnell v. Kaiser Gypsum Co., 98 Cal. App. 4th 1098, 1103 (2002). “If there has been no
23 exposure, there is no causation.” Jd. Plaintiffs failed to prove that Ms. Cabibi was exposed to asbestos
from using a Johnson & Johnson product. Therefore, the Court should grant Defendants’ motion for
25 judgment notwithstanding the verdict.
26 In a typical asbestos-induced personal injury case, the first element of the Rutherford test (“some
27 threshold exposure”) is met by testimony from the plaintiff that he or she used or worked with an
28 3
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
asbestos-containing product manufactured by the defendant. But this is not a typical case because it does
not involve a product that was intentionally manufactured to contain asbestos. Plaintiffs’ allegation was,
instead, that Johnson & Johnson’s consumer talcum powder products were contaminated with asbestos.
Thus, to show “some threshold exposure,” Plaintiffs were required to do more than adduce testimony
that Ms. Cabibi used Johnson’s Baby Powder. They needed to demonstrate that the Johnson & Johnson
products that Ms. Cabibi personally used were contaminated with asbestos. See McGonnell, 98 Cal.
DD
App. 4th at 1105 (affirming summary judgment where there was no evidence that the products at issue
YN
contained asbestos at the time of their use). Plaintiffs did not do so here.
At most, Plaintiffs’ experts sponsored the opinion that isolated samples—never used by Ms.
10 Cabibi—contained asbestos. But Plaintiffs did not put forward substantial evidence that the tested
11 samples were representative of Johnson & Johnson products sold across the United States let alone used
12 by Ms. Cabibi or even sold in the markets in which Ms. Cabibi would have purchased the product.
13 Because the jury was not qualified to assess statistical power, or assess whether certain samples—
14 whether they be Dr. Longo or Dr. Compton’s samples, or samples described in the literature or in
15 internal Johnson & Johnson documents—were proportionate or representative of the Johnson and
16 Johnson products that Ms. Cabibi used, Plaintiffs failed the first Rutherford requirement.
17 Dr. Madigan’s testimony did not remedy this problem because his testimony did not provide the
ig: type of “scientific testimony that can be interpreted as an inference of hypothetical probability” that
19 Jones requires. Jones, 163 Cal. App. 3d at 403. Nor did Dr. Madigan’s testimony demonstrate that Dr.
20 Longo’s samples were representative of all of Johnson & Johnson’s cosmetic talcum powder products.
21 There is no dispute that Dr. Madigan merely assumed that the samples Dr. Longo tested were
wee representative of all containers of Johnson & Johnson cosmetic talcum powder ever produced. Ex. 3,
23. Trial Tr., Day 15, 9/9/19, 3520:26-3521:1 1 Plaintiffs never introduced evidence supporting this
24 assumed fact. Indeed, Dr. Madigan wholly ignored evidence to the contrary, openly ignoring testing
25; done by anyone other than Dr. Longo. /d. at 3527:1-3528:21.
26
a7 All exhibit references are to the concurrently-filed Declaration of Jay Bhimani.
28 4
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
In total, Dr. Longo analyzed 84 bottles of Johnson & Johnson talcum powder products.” But the
sample included dozens of irrelevant bottles, which means that the actual sample size is much smaller
than 84 bottles. For example, the Dr. Longo’s sample bears little resemblance to the time when Ms.
Cabibi used Johnson & Johnson products—from 1967 through 2017. Ex. 5, Trial Tr., Day 18, 9/12/19,
4386:24-4387:2. The sample includes 25 bottles from before 1967, when Ms. Cabibi could not have
been exposed to asbestos from using a Johnson & Johnson product because Ms. Cabibi was not using
Johnson & Johnson products. Also, Dr. Longo’s sample includes three bottles of Shower to Shower that
were not manufactured by Johnson & Johnson. Therefore, even if the Shower to Shower was
contaminated with asbestos, it would not prove that Ms. Cabibi was exposed to asbestos from the use of
“10 a Johnson & Johnson product.
11 Dr. Madigan never presented any statistical evidence that the samples Dr. Longo tested were
2 actually representative of Johnson & Johnson’s cosmetic talcum powder products. Hypothetical
13 opinions must be rooted in facts borne out by the evidence. People v. Moore, 51 Cal. 4th 386, 405
“14 (2011). A party cannot use hypotheticals to place before the jury facts for which no evidence is ever
15 introduced. People v. Boyette, 29 Cal. 4th 381, 449 (2002), as modified (Feb. 11, 2003). When an
16 expert’s opinion is based on assumed facts in a hypothetical that do not exist in the record, that expert’s
7 hypothetical opinion is irrelevant and of no help to the jury. People v. Vang, 52 Cal. 4th 1038, 1046
18 (2011); see also Guillory v. Am. President Lines, Ltd, 230 Cal. App. 2d 296, 302 (1964) (“[i]f the
‘19 existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon
20 whom the burden rests to establish [any] fact[s] should suffer, and not [her] adversary.”).
al Dr. Longo’s testimony also failed to bridge this gap. Dr. Longo’s testimony regarding
22 representativeness was wholly based upon his intuitions regarding the samples’ purported
2B representativeness. Ex. 2, Trial Tr., Day 12, 9/4/19, 2742:5-2743:14. He cited no scientific analysis of
24 statistical probability to support his opinions regarding his samples’ representativeness. Jd. Accordingly,
2, Plaintiffs failed to present any competent expert or scientific evidence of statistical representativeness of
26
ZA * Dr. Madigan incorrectly testified about 88 samples. Ex. 3, Trial Tr., Day 15, 9/9/19, 3529:5-9.
28 5
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
the samples Dr. Longo tested. As a result, Plaintiffs’ evidence failed to create a nexus between what Dr.
Longo tested and what Nancy Cabibi would have used.‘
In fact, Plaintiffs’ evidence revealed that testing of products Nancy Cabibi actually used failed to
detect the presence of asbestos. Dr. Longo testified that he tested a bottle of Johnson’s Baby Powder
used by Nancy Cabibi and that he did not detect asbestos within that bottle. Jd. at 2743:15-23.
Plaintiffs’ expert Dr. Jaqueline Moline’s testimony fared no better. Dr. Moline, relying on Dr.
Longo, was the only medical expert in this case to testify regarding specific causation. But there is no
dispute that Dr. Moline is not a statistician and has no expertise in assessing the representativeness of
Dr. Longo’s or Dr. Compton’s test results. Ex. 11, Day 9, 8/29/19, 1860:7-24.
10 On this point, Miranda is instructive. The plaintiff in that case was infected with “Valley Fever,”
Ad a fungal infection contracted from spores commonly found in dirt in California’s San Joaquin Valley.
12 Miranda, 187 Cal. App. 4th at 1328. The plaintiffs office was located next to a vacant lot, used for
13 stockpiling excess dirt from a large construction project. Jd. at 1328-29. The plaintiff sued the general
14 contractor and subcontractor, claiming that they negligently allowed the excavated dirt to be ina
AS dangerous condition so as to cause his injury from inhaling particles from the dirt and dust. Jd. In
16 dismissing plaintiffs claims, the trial court rejected the plaintiff's experts’ causation opinions as
17 speculative. /d. at 1337. The Court of Appeal concluded that “/plaintiff] certainly established he was
18 exposed to dirt and dust for several months. But... he did not establish it was defective, harmful,
19 Jungus-containing, or disease-packed dust or air.” Id. at 1339 (emphasis added).
20 The expert evidence presented by the plaintiff in Miranda played a critical role in the court’s
21 decision. Two physicians in that case opined that exposure to dust from soil is a critical factor in
22 determining the risk for infection of Valley Fever, and both concluded that the plaintiff's exposure to
23 dust from the stockpile of dirt was a substantial factor in causing his condition. Jd. The trial court
24
25. 4 ae . .
No Plaintiffs’ expert even attempted to testify as to the representativeness of raw talc ore
samples tested by Plaintiffs’ expert Dr. Steven Compton. Dr. Madigan conceded during his cross-
26
examination that he had not reviewed or assessed a single testing result for source talc ores. Ex. 3, Trial
27 Tr., Day 15, 9/9/19, 3541:4-21.
28 6
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
rejected these opinions as speculative because, among other things, “neither expert offered an opinion on
whether there was a way to medically or scientifically determine the origins of the infecting fungal
spore.” Jd. The Court of Appeal further noted that the physicians “skip[ped] the] threshold step”—both
rendered exposure opinions without presenting evidence as to whether the stockpiled dirt was the source
of the fungus spore causing the plaintiff's illness. Jd. This is identical to the evidence presented by
Plaintiffs’ experts in this case—their experts rendered exposure opinions without presenting evidence as
to whether the Johnson & Johnson cosmetic talcum powder Ms. Cabibi used actually contained asbestos.
Defendants anticipate that Plaintiffs will argue they have proved causation under Lyons y.
Colgate-Palmolive Co., 16 Cal. App. 5th 463 (2017). But because Dr. Madigan simply assumes the
10 representativeness of Dr. Longo’s samples, this case is readily distinguishable from Lyons. In Lyons,
11 there was “expert testimony that all of th[e] product contained significant concentrations of airborne
12 asbestos.” Id. at 468. Plaintiff's expert geologist would “not agree that some talc might contain no
13 significant level of asbestos.” Jd. Without Dr. Madigan’s analysis, Plaintiffs cannot prove that Ms.
14 Cabibi used any bottles that were contaminated with asbestos, let alone that a// of her bottles contained
15 asbestos.
16 At most, even drawing all inferences in Plaintiffs’ favor and disregarding conflicting evidence,
17 Plaintiffs showed a mere “possibility” that Ms. Cabibi came into contact with Johnson & Johnson
18 cosmetic talcum powder products contaminated with asbestos. Thus, Plaintiffs “failed to make the
19 threshold showing of exposure to a harmful product” necessary to establish causation. See Miranda, 187
20 Cal. App. 4th at 1339.
al B. Plaintiffs did not produce substantial evidence that Ms. Cabibi’s use of a Johnson
22 & Johnson product was a substantial factor in causing her mesothelioma
53 Even if Plaintiffs’ had established a threshold exposure, there must still be evidence that that
24 exposure was a substantial factor in causing Ms. Cabibi’s mesothelioma.
s “Plaintiffs may prove causation in asbestos-related cancer cases by
demonstrating that the plaintiff's exposure to defendant’s asbestos-
26
containing product in reasonable medical probability was a substantial
zy factor in contributing to the aggregate dose of asbestos the plaintiff or
28 7
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
decedent inhaled or ingested, and hence to the risk of developing asbestos-
related cancer”
Rutherford, 16 Cal. 4th at 976-77 (ellipsis omitted). A product “is deemed to be a substantial
factor in bringing about the injury if its contribution to the plaintiff or decedent’s risk or probability of
developing cancer was substantial.” /d. at 977. The plaintiff “bear[s] the burden of proof” on the
“question of which exposures to asbestos-containing products contributed significantly enough to the
OD
total . .. dose to be considered ‘substantial factors’ in causing the disease.” Jd. Not every exposure is a
nN
substantial factor. An exposure that is “negligible or theoretical” is not a substantial factor. Jd. at 978.
“[C]ausation must be proven within a reasonable medical probability based upon competent expert
testimony. Mere possibility alone is insufficient to establish a prima facie case.” Cooper v. Takeda
10
Pharm. Am., Inc., 239 Cal. App. 4th 555, 577 (2015). “[T]here is a distinction between a reasonable
11
medical ‘probability’ and a medical ‘possibility.’” Jd. “There can be many possible ‘causes.... A
12
possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it
13
becomes more likely than not that the injury was a result of its action.” Jd.
14
“With cancer the question of causation is especially troublesome.” Jd. at 578. “[T]he unknown
15
and mysterious etiology of cancer is beyond the experience of laymen and can only be explained
16
through expert testimony.” Jd. (citation omitted). “[T]he plaintiff must offer an expert opinion that
17
contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore
18
should convince the jury, that it is more probable than not the [] act was a cause-in-fact of the plaintiff s
19
injury.” Jd. The quality of an expert opinion is especially important in an asbestos case because
20
“[a]sbestos products have widely divergent toxicities, with some asbestos products presenting a much
21
greater risk of harm than others.” Rutherford, 16 Cal. 4th at 972 (1997).
22
The question for the plaintiff's expert is:
yes
Taking into account the length, frequency, proximity and intensity of
24 exposure, the peculiar properties of the individual product, any other
25, potential causes to which the disease could be attributed (e.g., other
asbestos products, cigarette smoking), and perhaps other factors affecting
26 the assessment of comparative risk, should inhalation of fibers from the
particular product be deemed a ‘substantial factor’ in causing the cancer?
27
28 8
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
Id. at 975.
Therefore, to satisfy the second Rutherford requirement, Plaintiffs must demonstrate that Ms.
Cabibi’s exposure was at a level that would contribute to her risk of developing mesothelioma. Yet
Plaintiffs’ own experts testified that exposure to asbestos must be above “background” or ambient levels
to meaningfully increase the risk of developing mesothelioma. Ex. 11, Trial Tr., Day 9, 8/29/19,
1662:25-27; Ex. 6, Trial Tr., Day 10, 8/30/19, 2166:18-21. Accordingly, in order for an exposure to be
“a substantial factor” and contribute to a “risk of developing cancer,” it must be above background or
ambient levels. Ex. 11, Trial Tr., Day 9, 8/29/19, 1662:25-27. Likewise, Plaintiffs’ experts acknowledge
that mesothelioma is a dose-response disease. Ex. 6, Trial Tr., Day 10, 8/30/19, 2122:11-14. But no
10 Plaintiffs’ expert testified regarding the claimed dose of asbestos to which Ms. Cabibi was allegedly
11 exposed from Johnson & Johnson products. Jd. at 2123:2-7. Plaintiffs called no industrial hygienist in
12 this case, and their occupational physician expert Dr. Moline conceded she did not do a dose
13 computation for Ms. Cabibi. (/d.). Just as the jury could not assume the tested samples are presumptively
‘14 representative, the jury lacked the qualifications necessary to determine whether the asbestos in any
15 particular bottle used by Ms. Cabibi would be sufficient to contribute to her disease.
16 V. CONCLUSION
17 For the foregoing reasons, the Court should grant Defendants’ motion for judgment
18 notwithstanding the verdict and enter judgment in favor of Defendants on all of Plaintiffs’ claims.
19 DATED: November 14, 2019 Respectfully Submitted,
KIRKLAND & ELLIS LLP
» LBC.
20
21
22 Kimberly 6 . Branscome
F, Chadwick Morriss
:a Jay L. Bhimani
Benjamin M. Sadun
24 Attorneys for Defendants
25 JOHNSON & JOHNSON and
JOHNSON & JOHNSON CONSUMER INC.
26
.27
28 9
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
PROOF OF SERVICE
Nancy Cabibi and Phil Cabibi v. Johnson & Johnson, and Johnson & Johnson Consumer Inc.
LASC Case No. JCCP 4674 / BC665257
I, the undersigned, declare: I am a citizen of the United States, over 18 years of age and not a
party to the within action. I am employed in the County of Los Angeles, State of California; my
business address is 333 S. Hope Street, Los Angeles, CA 90071.
On the date specified below, I served a copy of the foregoing document described as:
DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S
MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM
OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT
on the interested parties in this action by placing a true copy thereof to be distributed
10 as follows:
11 [X] BY ELECTRONIC SERVICE VIA FILE & SERVEXPRESS: File & ServeXpress for
service on all counsel of record by electronic service pursuant to the Order Authorizing Electronic
12 Service and pursuant to California Code of Civil Procedure § 1010.6 and California Rules of Court
13 2060(c). The transmission was reported as complete without error.
14 I declare under penalty of perjury under the laws of the State of California that the above is true
and correct.
“15
Executed on November 14, 2019 in Los Angeles, California.
LZ.
16
17
18 Keith Catuara
19
20
21
22
23.
24
25
26
27
28
1
PROOF OF SERVICE
Preview
KIMBERLY O. BRANSCOME (SBN 255480) kimberly. branscome@kirkland.com JAY L. BHIMANI (SBN 267689) . FELED jay. bhimani@kirkland.com Superior Court of California BENJAMIN M. SADUN (SBN 287533) County of Los Angeles benjamin. sadun@kirkland.com KIRKLAND & ELLIS LLP NOV 14 2018 333 South Hope Street erri R. Carter, vyecutive Ofticer/Clerk Los Angeles, California 90071 Telephone: +1 213 680 8400 Facsimile: +1 213 680 8500 By _ LUML LIZ Steven Drew , Deputy F. CHADWICK MORRISS (Pro Hac Vice) chad.morriss@kirkland.com KIRKLAND & ELLIS LLP 1301 Pennsylvania Ave., N.W. Washington, D.C. 20004 Telephone: +1 202 389 5000 10 Facsimile: +1 202 389 5200 11 Attorneys for Defendants JOHNSON & JOHNSON and 12 JOHNSON & JOHNSON CONSUMER INC. 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF LOS ANGELES 15 Coordinated Proceeding No. BC665257 16 Special Title (Rule 3.550) Assigned to the Honorable Rafael A. 17 LAOSD ASBESTOS CASES Ongkeko, Dept. 11 18 NANCY CABIBI and PHIL CABIBI, DEFENDANTS JOHNSON & JOHNSON +19 AND JOHNSON & JOHNSON Plaintiffs, CONSUMER INC.’S MOTION FOR 20 JUDGMENT NOTWITHSTANDING THE V. VERDICT AND MEMORANDUM OF 21 POINTS AND AUTHORITIES IN JOHNSON & JOHNSON, AND JOHNSON SUPPORT OF MOTION FOR 22 AND JOHNSON CONSUMER INC. JUDGMENT NOTWITHSTANDING THE 23. VERDICT Defendants. Action filed: June 15, 2017 24 Trial Date: August 19, 2019 25 Entry of Judgment: October 18, 2019 DATE: December 10, 2019 26 TIME: 11:00 a.m. LOCATION: SS Dept. 11 27 28 LJ ORIGINAL DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT TABLE OF CONTENTS Page INTRODUCTION ooo cceessesecsesseseeseecseeeesesseseesecseseesessesecsesseeeseesecseeeesessesasseaesesasatereseeeaes 1 IL. STATEMENT OF PACTS scssisssssscscisssaanssasasscaacnsenencssscnsncnegesseenccnseveenenecnessescsssonasesseueneneneeneats 2 UL. STATEMENT OF LAW uci cccesessssesetecsesseceseseeseseseeesseeeesesesacsesecsesessesesecseaeeeeasaeseseeesacseetenes 2 IV. ARGUMENT uu. cccessssssssseseseeeeseseseeseseseeseseseessesessesesesaesesassesecseseassesacseeesscseseeesacacseseeeacseees 3 A. Plaintiffs did not produce substantial evidence that Ms. Cabibi was exposed to asbestos from using a Johnson & Johnson product .....c.ccccsescsesssesseeseeeees 3 B. Plaintiffs did not produce substantial evidence that Ms. Cabibi’s use of a Johnson & Johnson product was a substantial factor in causing her 10 PTNOS OTE GROTIG cassnowswsnss cxvunearasssaiavessasaassivianeascess iailsasnenteoazonecesereeseceneersenapecnesuerenvepgeney eres 7 Li CONCLUSION .W...ccccccccsesessesesesscsessessscseeesesesecscseeecsesesseseeecsenecsesesacaesesaesesesateceesasacsesteeeacscees 9 12 13 14 15 ‘16 17 18 19 20 Zl 22 23 24 25 26 27 28 i DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT TABLE OF AUTHORITIES Page(s) Cases Cooper v. Takeda Pharm. Am., Inc., 239 Cal. App. 4th 555 (2015) oe eeesssssesesesesesesesssessssescseseseeeessscsesesevscacsesesesessvacscscecacecscscesscacseseesseees 8 Gonzales y. City of Atwater, 6 Cal. App. Sth 929 (2016) vc escssssesssessssseseeesssssscssscseseseeescsesesseevacscsesevsvsvsvssscacscscscscacecacsseseseavavacas 2 Guillory v. Am. President Lines, Ltd, 230 Cal. App. 2d 296 (1964) on eecccsssssssssssesssesesesescsesessssscsesesvsscsescscscscssscsssssvscsvsssesscacacsesvsnsacasavavavars 5 Jones v. Ortho Pharm. Corp., 10 163 Cal. App. 3d 396 (1985) oe csseessssesesesesesesesesesecscscseseseeesacsssesesscscscsesessvsvscacscssscscscecscnsnssanenaes 3,4 11 Lyons v. Colgate-Palmolive Co., 16 Cal. App. Sth 463 (2017) w.cccesessssssssssesssesesssesesessescscsesesesessescsssesesscscscsesessscscacacacsessacececscuceseceenevaes 7 12 McGonnell v. Kaiser Gypsum Co., 13 98 Cal. App. 4th 1098 (2002) w.ccccssesesssssscsssscssscsesessssescscsesesecscscscsesssscscscscecssescscscscsvsvavavavavacavaces 3,4 14 Miranda v. Bomel Constr. Co., Inc., 15 187 Cal. App. 4th 1326 (2010) wc ccccsesssesesesesesescesescssscscsesecscscscsesesscscscscsessvsvscecscscscssacacacseaceees 3, 6,7 16 Newland y. City of L.A., 24 Cal. App. Sth 676 (2018) ..cccccccsscsesssessssssssesescscscsesesececsescsesesssscscscsessvsvsvscsesesessvsvscscsvavavavavavavacaees 2,3 17 People v. Boyette, 18 29 Cal. 4th 381 (2002), as modified (Feb. 11, 2003) ...ccccccsessssesesescssssssescsescsssssscscscscscscscsescscacseseseeeeeens 5 19 People v. Moore, 51 Cal. 4th 386 (2011) cc eesesesssessesssesesesesesesessssssssesesesesesecscsesesesesacssaceessssscscscsescesssesesesesesessscseavseas 5 20 i People v. Vang, 52, Cal, 4th T0388 (QOL1) sscvssssssseisssacscssoroncansnetereanencscosensanersveseevenevesvertepestonne conseneuvnrgetaneserarvavastonvensanavenses 5 oe 2 Rutherford v. Owen-lll., Inc., PG-Cal, 40 953 QO TAY vesccsccoressnnnnensass neues snsasssevsiseis sidssesanctstcsenresverarennasoneessntnetensneannersaceneasagevesy 3, 4, 8,9 24 Statutes 25. Cal. Civ. Proc. Code § 12a... cccccscsssssssesssscseescseescecsesscscescsacseescsecsesscsscsecsecscsscsecssssssscsesscscsacsceacassevsceevanere 2 ‘26 Cal. Civ. Proc. Code § 135 vccciessesesssseessessseseesesesesecsesessssesesscsesessesessesecacsevacsesevassesesscsesecscstscsessvscsceeeacs 2 21 28 il DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT Cal. Civ, Prod, Goda S029 cos wsccsxaasnsneraes cancuxanancinns vin vasnnanannawanessnedanan si ceniaamannes na eneaNNR AT RNaEKEATENOENE 1,2 Cal. Civ. Proc. Code § 629 w..ccccccccssccsscsssecsecsecssecesccsseceseeeseeessecessecesecseaecsaeeesaeceseeeaeeaeeeeseeeeaeeeseeseeeeeens 2 Cal. Civ. Proc. Code § 659 ....ccccsccsssssssesssesseessesecsscesecesessecsseeseceseceaessesesecesscseseaeceaesecesessesseceaseaecseseeeeaeents 2 Cal. Civ. Proc. Code § 660 oo... ccccesccssccssscssecssecssecesecsseceseeeseecesecesueceseeseaeceseeceseceeeseseseaeeeseseaesesesnesteeeeaeenae 2 Reels CHR, PGs COU GO isc cinensascis cnn ens hs canninas.nn canis iat chsh dS ck ARS SAsGeAsh ktbANiath at Ha AO AH RTA 2 DO Cal. Civ. Proc. Code § 1005.5 wc. ccccescescssscessessscessesessessecesecsssecesecseescesessesesesecenseessecesecesseeseenseeaeesaeeeseesnees 2 nN Cal. Gov’t Code § 6700(a)(1) .....ccesccsscssscssecssecssecssecessceseceesecesecessecessseesecessecssecessesesecesecesscesesesseeseaeeeeeenss 2 ao \o 10 11 12 13 14 15 16 17 -18 19 20 21 9) v3 24 25 26 2d 28 iil DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT I. INTRODUCTION The Court should enter judgment notwithstanding the verdict in favor of Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. because Plaintiffs Nancy and Phil Cabibi did not prove that Ms. Cabibi’s mesothelioma was caused by exposure to asbestos from using a Johnson & Johnson product. See Cal. Civ. Proc. Code § 629. Plaintiffs needed to prove two things at trial to establish causation—that Ms. Cabibi was exposed to asbestos from using a Johnson & Johnson product and that this exposure was a substantial factor in causing Ms. Cabibi’s mesothelioma. Plaintiffs failed on both fronts. Plaintiffs did not prove that Ms. Cabibi was exposed to asbestos from using a Johnson & ‘10 Johnson product. Plaintiffs relied on the testimony of Dr. David Madigan, a statistics professor, to 11 establish exposure. Dr. Madigan testified that Ms. Cabibi used approximately 200 bottles of asbestos- 12 containing Johnson’s Baby Powder between 1967 and 2017. Dr. Madigan’s opinion relied on Dr. 13 William Longo’s testing of 84 bottles of baby powder for the presence of asbestos. However, upon 14 further scrutiny, only 56 of these bottles were relevant to Ms. Cabibi’s usage. Nevertheless, Dr. Madigan 15 simply assumed that all the bottles tested by Dr. Longo were representative of all baby powder bottles 16 ever produced and those that Ms. Cabibi used. Plaintiffs never proved those assumptions to be true. 17 Because Dr. Madigan’s opinion rests on unsupported assumptions about Dr. Longo’s testing, Dr. 18 Madigan’s opinion is of no evidentiary value. On this basis alone, the Court should grant Defendants’ ‘19 motion for judgment notwithstanding the verdict. 20 Plaintiffs did not prove that any exposure to asbestos from using a Johnson & Johnson product 21 was a substantial factor in causing Ms. Cabibi’s mesothelioma. Plaintiffs’ experts agreed that 22 mesothelioma is a dose-response disease where only exposures above a “background” level contribute to 3 disease development. But Plaintiffs failed to provide any evidence that Ms. Cabibi was exposed to an 24 amount of asbestos above background. Accordingly, even if the Court finds that Plaintiffs proved that 5 Ms. Cabibi was exposed to asbestos from using a Johnson & Johnson product, the Court should still 26 grant Defendants’ motion for judgment notwithstanding the verdict. 27 In support of this motion, Defendants below incorporate their arguments from their motion for ‘28 1 DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT nonsuit filed on September 14, 2019 and argued on September 18, 2019. Il. STATEMENT OF FACTS Nancy Cabibi used Johnson & Johnson talcum powder products from 1967 to 2017. In 2017, Ms. Cabibi was diagnosed with mesothelioma. Ms. Cabibi and her husband, Phil Cabibi, sued Johnson & Johnson and Johnson & Johnson Consumer Inc. in June 2017. Plaintiffs alleged that Ms. Cabibi’s mesothelioma was caused by exposure to asbestos from using Johnson & Johnson products. On September 27, 2019, the jury returned a verdict in favor of Plaintiffs on their manufacturing defect claim. In reaching its verdict, the jury found that a defect in the process of manufacturing Johnson & Johnson’s talcum powder products allowed asbestos to contaminate the products and ultimately 10 caused Ms. Cabibi’s mesothelioma. The Court subsequently entered judgment consistent with the jury’s “11 verdict. Defendants then timely noticed the motion for judgment notwithstanding the verdict. 12 Defendants have moved for judgment notwithstanding the verdict because Plaintiffs failed to prove that 13 Ms. Cabibi’s mesothelioma was caused by exposure to asbestos from using a Johnson & Johnson 14 product.’ 15 I. STATEMENT OF LAW 16 A court “shall render judgment in favor of the aggrieved party notwithstanding the verdict 7 whenever a motion for a directed verdict for the aggrieved party should have been granted had a 18 previous motion been made.” Cal. Civ. Proc. Code § 629. “A trial court may grant a motion for JNOV 19 only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, 20 that there is no substantial evidence to support it.” Gonzales v. City of Atwater, 6 Cal. App. 5th 929, 946 21 (2016). “For evidence to be substantial, it must be of ponderable legal significance, reasonable, credible, 22 and of solid value.” Newland v. City of L.A., 24 Cal. App. 5th 676, 684 (2018). “The plaintiff must 23 24 Judgment was entered on October 18, 2019. Notice of entry of judgment was served by the clerk that 25 same day. Defendants made this motion for judgment notwithstanding the verdict when the motion was noticed on November 4, 2019. (See Cal. Civ. Proc. Code §§ 12a, 135, 629, 659, 1005.5; Cal. Gov’t 26 Code § 6700(a)(1).) Accordingly, the Court must decide this motion no later than January 2, 2020. (See 27 Cal. Civ. Proc. Code §§ 660, 661.) 28 a DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT [have] produce[d] evidence [at trial] which supports a logical inference in h[er] favor and which does more than merely permit speculation or conjecture.” Jones v. Ortho Pharm. Corp., 163 Cal. App. 3d 396, 402 (1985). “The focus is on the quality, not the quantity, of the evidence.” Newland, 24 Cal. App. 5th at 684. (quotation marks omitted). IV. ARGUMENT Plaintiffs did not produce substantial evidence that Ms. Cabibi’s mesothelioma was caused by exposure to asbestos from using a Johnson & Johnson product. At trial, Plaintiffs bore the burden of proving that Ms. Cabibi’s mesothelioma was caused by exposure to asbestos from using a Johnson & Johnson product. In Rutherford v. Owen-ill., Inc., 16 Cal. 4th 953, 982 (2014), the Supreme Court of 10 California established the “controlling two-part test for determining whether exposure to asbestos from a 11 particular product was a legal cause of a plaintiff's injury in an asbestos-induced personal injury case.” 12 Miranda vy. Bomel Constr. Co., Inc., 187 Cal. App. 4th 1326, 1338 (2010). Under the Rutherford test, a 13 plaintiff must first “establish some threshold exposure to the defendant’s defective asbestos-containing 14 products.” Rutherford, 16 Cal. 4th at 982. If a plaintiff proves a threshold exposure, she must then 15 establish to a “reasonable medical probability that a particular exposure or series of exposures was a 16 ‘legal cause’ of [her] injury, i-e., a substantial factor in bringing about the injury.” Jd. The Court should 17 grant Defendants’ motion for judgment notwithstanding the verdict because Plaintiffs failed to carry 18 their burden at both steps of the Rutherford test. 19 A. Plaintiffs did not produce substantial evidence that Ms. Cabibi was exposed to 20 asbestos from using a Johnson & Johnson product a2 “A threshold issue in asbestos litigation is exposure to [a] defendant’s product” that contained 22 asbestos. McGonnell v. Kaiser Gypsum Co., 98 Cal. App. 4th 1098, 1103 (2002). “If there has been no 23 exposure, there is no causation.” Jd. Plaintiffs failed to prove that Ms. Cabibi was exposed to asbestos from using a Johnson & Johnson product. Therefore, the Court should grant Defendants’ motion for 25 judgment notwithstanding the verdict. 26 In a typical asbestos-induced personal injury case, the first element of the Rutherford test (“some 27 threshold exposure”) is met by testimony from the plaintiff that he or she used or worked with an 28 3 DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT asbestos-containing product manufactured by the defendant. But this is not a typical case because it does not involve a product that was intentionally manufactured to contain asbestos. Plaintiffs’ allegation was, instead, that Johnson & Johnson’s consumer talcum powder products were contaminated with asbestos. Thus, to show “some threshold exposure,” Plaintiffs were required to do more than adduce testimony that Ms. Cabibi used Johnson’s Baby Powder. They needed to demonstrate that the Johnson & Johnson products that Ms. Cabibi personally used were contaminated with asbestos. See McGonnell, 98 Cal. DD App. 4th at 1105 (affirming summary judgment where there was no evidence that the products at issue YN contained asbestos at the time of their use). Plaintiffs did not do so here. At most, Plaintiffs’ experts sponsored the opinion that isolated samples—never used by Ms. 10 Cabibi—contained asbestos. But Plaintiffs did not put forward substantial evidence that the tested 11 samples were representative of Johnson & Johnson products sold across the United States let alone used 12 by Ms. Cabibi or even sold in the markets in which Ms. Cabibi would have purchased the product. 13 Because the jury was not qualified to assess statistical power, or assess whether certain samples— 14 whether they be Dr. Longo or Dr. Compton’s samples, or samples described in the literature or in 15 internal Johnson & Johnson documents—were proportionate or representative of the Johnson and 16 Johnson products that Ms. Cabibi used, Plaintiffs failed the first Rutherford requirement. 17 Dr. Madigan’s testimony did not remedy this problem because his testimony did not provide the ig: type of “scientific testimony that can be interpreted as an inference of hypothetical probability” that 19 Jones requires. Jones, 163 Cal. App. 3d at 403. Nor did Dr. Madigan’s testimony demonstrate that Dr. 20 Longo’s samples were representative of all of Johnson & Johnson’s cosmetic talcum powder products. 21 There is no dispute that Dr. Madigan merely assumed that the samples Dr. Longo tested were wee representative of all containers of Johnson & Johnson cosmetic talcum powder ever produced. Ex. 3, 23. Trial Tr., Day 15, 9/9/19, 3520:26-3521:1 1 Plaintiffs never introduced evidence supporting this 24 assumed fact. Indeed, Dr. Madigan wholly ignored evidence to the contrary, openly ignoring testing 25; done by anyone other than Dr. Longo. /d. at 3527:1-3528:21. 26 a7 All exhibit references are to the concurrently-filed Declaration of Jay Bhimani. 28 4 DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT In total, Dr. Longo analyzed 84 bottles of Johnson & Johnson talcum powder products.” But the sample included dozens of irrelevant bottles, which means that the actual sample size is much smaller than 84 bottles. For example, the Dr. Longo’s sample bears little resemblance to the time when Ms. Cabibi used Johnson & Johnson products—from 1967 through 2017. Ex. 5, Trial Tr., Day 18, 9/12/19, 4386:24-4387:2. The sample includes 25 bottles from before 1967, when Ms. Cabibi could not have been exposed to asbestos from using a Johnson & Johnson product because Ms. Cabibi was not using Johnson & Johnson products. Also, Dr. Longo’s sample includes three bottles of Shower to Shower that were not manufactured by Johnson & Johnson. Therefore, even if the Shower to Shower was contaminated with asbestos, it would not prove that Ms. Cabibi was exposed to asbestos from the use of “10 a Johnson & Johnson product. 11 Dr. Madigan never presented any statistical evidence that the samples Dr. Longo tested were 2 actually representative of Johnson & Johnson’s cosmetic talcum powder products. Hypothetical 13 opinions must be rooted in facts borne out by the evidence. People v. Moore, 51 Cal. 4th 386, 405 “14 (2011). A party cannot use hypotheticals to place before the jury facts for which no evidence is ever 15 introduced. People v. Boyette, 29 Cal. 4th 381, 449 (2002), as modified (Feb. 11, 2003). When an 16 expert’s opinion is based on assumed facts in a hypothetical that do not exist in the record, that expert’s 7 hypothetical opinion is irrelevant and of no help to the jury. People v. Vang, 52 Cal. 4th 1038, 1046 18 (2011); see also Guillory v. Am. President Lines, Ltd, 230 Cal. App. 2d 296, 302 (1964) (“[i]f the ‘19 existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon 20 whom the burden rests to establish [any] fact[s] should suffer, and not [her] adversary.”). al Dr. Longo’s testimony also failed to bridge this gap. Dr. Longo’s testimony regarding 22 representativeness was wholly based upon his intuitions regarding the samples’ purported 2B representativeness. Ex. 2, Trial Tr., Day 12, 9/4/19, 2742:5-2743:14. He cited no scientific analysis of 24 statistical probability to support his opinions regarding his samples’ representativeness. Jd. Accordingly, 2, Plaintiffs failed to present any competent expert or scientific evidence of statistical representativeness of 26 ZA * Dr. Madigan incorrectly testified about 88 samples. Ex. 3, Trial Tr., Day 15, 9/9/19, 3529:5-9. 28 5 DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT the samples Dr. Longo tested. As a result, Plaintiffs’ evidence failed to create a nexus between what Dr. Longo tested and what Nancy Cabibi would have used.‘ In fact, Plaintiffs’ evidence revealed that testing of products Nancy Cabibi actually used failed to detect the presence of asbestos. Dr. Longo testified that he tested a bottle of Johnson’s Baby Powder used by Nancy Cabibi and that he did not detect asbestos within that bottle. Jd. at 2743:15-23. Plaintiffs’ expert Dr. Jaqueline Moline’s testimony fared no better. Dr. Moline, relying on Dr. Longo, was the only medical expert in this case to testify regarding specific causation. But there is no dispute that Dr. Moline is not a statistician and has no expertise in assessing the representativeness of Dr. Longo’s or Dr. Compton’s test results. Ex. 11, Day 9, 8/29/19, 1860:7-24. 10 On this point, Miranda is instructive. The plaintiff in that case was infected with “Valley Fever,” Ad a fungal infection contracted from spores commonly found in dirt in California’s San Joaquin Valley. 12 Miranda, 187 Cal. App. 4th at 1328. The plaintiffs office was located next to a vacant lot, used for 13 stockpiling excess dirt from a large construction project. Jd. at 1328-29. The plaintiff sued the general 14 contractor and subcontractor, claiming that they negligently allowed the excavated dirt to be ina AS dangerous condition so as to cause his injury from inhaling particles from the dirt and dust. Jd. In 16 dismissing plaintiffs claims, the trial court rejected the plaintiff's experts’ causation opinions as 17 speculative. /d. at 1337. The Court of Appeal concluded that “/plaintiff] certainly established he was 18 exposed to dirt and dust for several months. But... he did not establish it was defective, harmful, 19 Jungus-containing, or disease-packed dust or air.” Id. at 1339 (emphasis added). 20 The expert evidence presented by the plaintiff in Miranda played a critical role in the court’s 21 decision. Two physicians in that case opined that exposure to dust from soil is a critical factor in 22 determining the risk for infection of Valley Fever, and both concluded that the plaintiff's exposure to 23 dust from the stockpile of dirt was a substantial factor in causing his condition. Jd. The trial court 24 25. 4 ae . . No Plaintiffs’ expert even attempted to testify as to the representativeness of raw talc ore samples tested by Plaintiffs’ expert Dr. Steven Compton. Dr. Madigan conceded during his cross- 26 examination that he had not reviewed or assessed a single testing result for source talc ores. Ex. 3, Trial 27 Tr., Day 15, 9/9/19, 3541:4-21. 28 6 DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT rejected these opinions as speculative because, among other things, “neither expert offered an opinion on whether there was a way to medically or scientifically determine the origins of the infecting fungal spore.” Jd. The Court of Appeal further noted that the physicians “skip[ped] the] threshold step”—both rendered exposure opinions without presenting evidence as to whether the stockpiled dirt was the source of the fungus spore causing the plaintiff's illness. Jd. This is identical to the evidence presented by Plaintiffs’ experts in this case—their experts rendered exposure opinions without presenting evidence as to whether the Johnson & Johnson cosmetic talcum powder Ms. Cabibi used actually contained asbestos. Defendants anticipate that Plaintiffs will argue they have proved causation under Lyons y. Colgate-Palmolive Co., 16 Cal. App. 5th 463 (2017). But because Dr. Madigan simply assumes the 10 representativeness of Dr. Longo’s samples, this case is readily distinguishable from Lyons. In Lyons, 11 there was “expert testimony that all of th[e] product contained significant concentrations of airborne 12 asbestos.” Id. at 468. Plaintiff's expert geologist would “not agree that some talc might contain no 13 significant level of asbestos.” Jd. Without Dr. Madigan’s analysis, Plaintiffs cannot prove that Ms. 14 Cabibi used any bottles that were contaminated with asbestos, let alone that a// of her bottles contained 15 asbestos. 16 At most, even drawing all inferences in Plaintiffs’ favor and disregarding conflicting evidence, 17 Plaintiffs showed a mere “possibility” that Ms. Cabibi came into contact with Johnson & Johnson 18 cosmetic talcum powder products contaminated with asbestos. Thus, Plaintiffs “failed to make the 19 threshold showing of exposure to a harmful product” necessary to establish causation. See Miranda, 187 20 Cal. App. 4th at 1339. al B. Plaintiffs did not produce substantial evidence that Ms. Cabibi’s use of a Johnson 22 & Johnson product was a substantial factor in causing her mesothelioma 53 Even if Plaintiffs’ had established a threshold exposure, there must still be evidence that that 24 exposure was a substantial factor in causing Ms. Cabibi’s mesothelioma. s “Plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff's exposure to defendant’s asbestos- 26 containing product in reasonable medical probability was a substantial zy factor in contributing to the aggregate dose of asbestos the plaintiff or 28 7 DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT decedent inhaled or ingested, and hence to the risk of developing asbestos- related cancer” Rutherford, 16 Cal. 4th at 976-77 (ellipsis omitted). A product “is deemed to be a substantial factor in bringing about the injury if its contribution to the plaintiff or decedent’s risk or probability of developing cancer was substantial.” /d. at 977. The plaintiff “bear[s] the burden of proof” on the “question of which exposures to asbestos-containing products contributed significantly enough to the OD total . .. dose to be considered ‘substantial factors’ in causing the disease.” Jd. Not every exposure is a nN substantial factor. An exposure that is “negligible or theoretical” is not a substantial factor. Jd. at 978. “[C]ausation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.” Cooper v. Takeda 10 Pharm. Am., Inc., 239 Cal. App. 4th 555, 577 (2015). “[T]here is a distinction between a reasonable 11 medical ‘probability’ and a medical ‘possibility.’” Jd. “There can be many possible ‘causes.... A 12 possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it 13 becomes more likely than not that the injury was a result of its action.” Jd. 14 “With cancer the question of causation is especially troublesome.” Jd. at 578. “[T]he unknown 15 and mysterious etiology of cancer is beyond the experience of laymen and can only be explained 16 through expert testimony.” Jd. (citation omitted). “[T]he plaintiff must offer an expert opinion that 17 contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore 18 should convince the jury, that it is more probable than not the [] act was a cause-in-fact of the plaintiff s 19 injury.” Jd. The quality of an expert opinion is especially important in an asbestos case because 20 “[a]sbestos products have widely divergent toxicities, with some asbestos products presenting a much 21 greater risk of harm than others.” Rutherford, 16 Cal. 4th at 972 (1997). 22 The question for the plaintiff's expert is: yes Taking into account the length, frequency, proximity and intensity of 24 exposure, the peculiar properties of the individual product, any other 25, potential causes to which the disease could be attributed (e.g., other asbestos products, cigarette smoking), and perhaps other factors affecting 26 the assessment of comparative risk, should inhalation of fibers from the particular product be deemed a ‘substantial factor’ in causing the cancer? 27 28 8 DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT Id. at 975. Therefore, to satisfy the second Rutherford requirement, Plaintiffs must demonstrate that Ms. Cabibi’s exposure was at a level that would contribute to her risk of developing mesothelioma. Yet Plaintiffs’ own experts testified that exposure to asbestos must be above “background” or ambient levels to meaningfully increase the risk of developing mesothelioma. Ex. 11, Trial Tr., Day 9, 8/29/19, 1662:25-27; Ex. 6, Trial Tr., Day 10, 8/30/19, 2166:18-21. Accordingly, in order for an exposure to be “a substantial factor” and contribute to a “risk of developing cancer,” it must be above background or ambient levels. Ex. 11, Trial Tr., Day 9, 8/29/19, 1662:25-27. Likewise, Plaintiffs’ experts acknowledge that mesothelioma is a dose-response disease. Ex. 6, Trial Tr., Day 10, 8/30/19, 2122:11-14. But no 10 Plaintiffs’ expert testified regarding the claimed dose of asbestos to which Ms. Cabibi was allegedly 11 exposed from Johnson & Johnson products. Jd. at 2123:2-7. Plaintiffs called no industrial hygienist in 12 this case, and their occupational physician expert Dr. Moline conceded she did not do a dose 13 computation for Ms. Cabibi. (/d.). Just as the jury could not assume the tested samples are presumptively ‘14 representative, the jury lacked the qualifications necessary to determine whether the asbestos in any 15 particular bottle used by Ms. Cabibi would be sufficient to contribute to her disease. 16 V. CONCLUSION 17 For the foregoing reasons, the Court should grant Defendants’ motion for judgment 18 notwithstanding the verdict and enter judgment in favor of Defendants on all of Plaintiffs’ claims. 19 DATED: November 14, 2019 Respectfully Submitted, KIRKLAND & ELLIS LLP » LBC. 20 21 22 Kimberly 6 . Branscome F, Chadwick Morriss :a Jay L. Bhimani Benjamin M. Sadun 24 Attorneys for Defendants 25 JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER INC. 26 .27 28 9 DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT PROOF OF SERVICE Nancy Cabibi and Phil Cabibi v. Johnson & Johnson, and Johnson & Johnson Consumer Inc. LASC Case No. JCCP 4674 / BC665257 I, the undersigned, declare: I am a citizen of the United States, over 18 years of age and not a party to the within action. I am employed in the County of Los Angeles, State of California; my business address is 333 S. Hope Street, Los Angeles, CA 90071. On the date specified below, I served a copy of the foregoing document described as: DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT on the interested parties in this action by placing a true copy thereof to be distributed 10 as follows: 11 [X] BY ELECTRONIC SERVICE VIA FILE & SERVEXPRESS: File & ServeXpress for service on all counsel of record by electronic service pursuant to the Order Authorizing Electronic 12 Service and pursuant to California Code of Civil Procedure § 1010.6 and California Rules of Court 13 2060(c). The transmission was reported as complete without error. 14 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. “15 Executed on November 14, 2019 in Los Angeles, California. LZ. 16 17 18 Keith Catuara 19 20 21 22 23. 24 25 26 27 28 1 PROOF OF SERVICE