On April 06, 2022 a
Motion-Secondary
was filed
involving a dispute between
Bradford Brett,
Linda Johnson-Brett,
and
A.O. Smith Corporation.,,
Avon Products, Inc.,,
Bird Incorporated,,
Brenntag North America, Inc., Individually And As Successor In Interest To Mineral Pigment Solutions, Inc., As Successor In Interest To Whittaker, Clark & Daniels, Inc.,,
Bristol-Myers Squibb Company,
Burnham Holdings Llc,
Burnham, Llc, Individually And As Successor To Burnham Corporation,,
Carrier Corporation,,
Chanel, Inc.,,
Clinique Laboratories, Llc,,
Colgate Palmolive Company,
Compudyne Corporation, Individually And As Successor To York-Shipley,
Conopco, Inc., Individually And As Successor In Interest To Cheseborough-Ponds, Inc.,,
Coty, Inc.,,
Crane Co.,,
Crown Boiler Co.,,
Dap, Inc.,,
Ecr International, Inc., Individually And As Successor In Interest To Dunkirk, Dunkirk Boilers And Utica Boilers,,
Elizabeth Arden, Inc., Individually And As Successor In Interest To Evyan Perfumes, Inc.,,
Estee Lauder, Inc.,,
Estee Lauder International, Inc.,,
Fort Kent Holdings, Inc., F K A Dunham-Bush, Inc.,,
Friend Lumber Company Of Lowell,,
General Electric Company,,
Goulds Pumps, Inc.,,
Grinnell Llc,,
Honeywell International, Inc., F K A Allied Signal, Inc. Bendix,,
Itt Corporation, Individually, And As Successor In Interest To Bell & Gossett And Hoffman Specialty,,
Kaiser Gypsum Company, Inc.,,
Keeler-Dorr-Oliver Boiler Company,,
Macys, Inc.,,
Mineral And Pigment Solutions, Inc., F K A Whittaker, Clark & Daniels, Inc.,,
Minnesota Mining & Manufacturing Company, A K A 3M Company,,
New Yorker Boiler Co., Inc.,,
Paramount Global F K A Viacomcbs, Inc. F K A Cbs Corporation, A Delaware Corporation, F K A Viacom Inc., Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,,
Parfums De Couer Ltd,
Pecora Corp.,,
Pfizer, Inc., Individually And As Successor To Coty Inc.,,
Revlon, Inc., Individually And As Successor In Interest To Jean Nate, Evyan Perfumes, Inc. And Enjoli, Inc.,,
Rheem Manufacturing Co., Rudd Water Heater Division,,
R.W. Beckett Corp.,,
Schneider Electric Usa, Inc., Formerly Known As Square D Company,
Slant Fin Corporation,,
Sos Products Co. Inc.,,
Spirax Sarco, Inc., Individually And As Successor To Sarco Company,,
Union Carbide Corporation,,
Weil Mclain, A Division Of The Marley Wylain Company,,
Whittaker, Clark & Daniels, Inc.,,
for Torts - Asbestos
in the District Court of Monroe County.
Preview
FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM INDEX NO. E2022002698
NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3820938
Book Page CIVIL
Return To: No. Pages: 96
KUSH SHUKLA
1040 6th Avenue, Suite 12B Instrument: MEMO IN OPPOSITION
New York, NY 10018
Control #: 202404111946
Index #: E2022002698
Date: 04/11/2024
JOHNSON-BRETT, LINDA Time: 11:52:25 PM
BRETT, BRADFORD
A.O. SMITH CORPORATION.,
AVON PRODUCTS, INC.,
BIRD INCORPORATED,
BRENNTAG NORTH AMERICA, INC., individually and as
successor in interest to MINERAL PIGMENT SOLUTIONS,
INC., as successor in interest to WHITTAKER, CLARK &
DANIELS, INC.,
BURNHAM, LLC, individually and as successor to BURNHAM
CORPORATION,
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
-----------------------------------------------------------------------x
LINDA JOHNSON-BRETT and BRADFORD BRETT, : Index No. E2022002698
:
Plaintiffs, : Hon. Erin P. Gall, J.S.C.
:
-against- : Motion Seq. 25
:
A.O. SMITH CORPORATION., et. al., :
:
Defendants. :
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PLAINTIFFS’ OPPOSITION TO COLGATE-PALMOLIVE COMPANY,
INDIVIDUALLY AND AS SUCCESOR-IN-INTEREST TO
THE MENNEN COMPANY’S
OMNIBUS MOTION IN LIMINE
Plaintiffs Linda Johnson-Brett (hereinafter “Ms. Johnson-Brett”) and Bradford Brett, by
and through their attorneys at the law offices of Meirowitz & Wasserberg, LLP, hereby submit
their opposition to motions in limine (“MIL”) filed by Colgate-Palmolive Company’s, individually
and as a successor-in-interest to The Mennen Company (hereinafter “Colgate”, “Mennen”, and/or
“Defendant”).
As an initial matter, Plaintiffs note that Defendant’s motions in limine are vague and
entirely premature, as it has not identified with particularity what information and/or evidence it
seeks to preclude. Therefore, it is impossible for Plaintiffs to adequately respond to Defendant’s
motions. Accordingly, the Court should reserve ruling until the time of trial when the Court can
review the evidence individually and judge its relevance in context. See, e.g., Speed v. Avis Rent-
A-Car, 172 A.D.2d 267, 268 (1st Dept. 1991) (denying defendant’s motion in limine regarding
admissibility of Ford’s recall evidence as “premature” and noting that a ruling on the issue “is
more properly made at trial when [the evidence]’s relevance, or lack of relevance, may be
determined in context”).
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To the limited extent that Plaintiffs can, the following sections will provide a response to
each and every motion made by Defendant. However, Plaintiffs reserve their right to respond
when, and if, Defendant identifies the exact evidence it seeks to preclude. Additionally, Plaintiffs
note that many of the motions made by Defendant are premature and we respectfully respect that
this Court withhold its decision to the time trial once actual evidence and foundation for said
evidence is presented before her Honor.
I. PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION IN
LIMINE TO PRECLUDE ALL EVIDENCE, ARGUMENT, OR REFERENCE TO
THE INTERAGENCY WORKING GROUP ON ASBESTOS IN CONSUMER
PRODUCTS
A. Introduction
Plaintiffs hereby oppose Colgate’s motion in limine to Exclude All Evidence, Argument,
or Reference to the Interagency Working Group on Asbestos in Consumer Products.
Colgate seeks a premature, blanket order precluding all evidence related to the Interagency
Working Group on Asbestos in Consumer Products (“IWGACP”), formed by the Food and Drug
Administration (“FDA”) in the Fall of 2018 to support the development of standardized testing
methods for asbestos and other mineral particles of health concern in talc. Colgate argues that any
IWGACP-related evidence is irrelevant, inadmissible hearsay, and prejudicial because it only
reflects “preliminary recommendations” and has not led to a change in FDA regulations or other
legislation. These arguments are based on an unreasonably myopic view of New York law
regarding expert reliance materials.
The IWGACP’s latest publication is its white paper titled “IWGACP Scientific Opinions
on Testing Methods for Asbestos in Cosmetic Products Containing Talc (including Talc Intended
for Use in Cosmetics)” (hereinafter “White Paper”). The scientific opinions outlined therein are
no longer “preliminary recommendations” but rather, represent the “consensus” reached by the
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IWGACP regarding appropriate testing methods for asbestos in cosmetic talc following extensive
research and debate among experts in occupational and environmental medicine, geology,
mineralogy, microscopy, and industrial hygiene. See White Paper: IWGACP Scientific Opinions
on Testing Methods for Asbestos in Cosmetic Products Containing Talc (Dec. 2021), attached as
Exhibit 1. It is, without question, appropriate expert reliance material and admissible as a learned
treatise.
What is more, evidence related to the IWGACP and their publication of the “White Paper”
is relevant and admissible to the state-of-the-art, Colgate’s knowledge regarding the hazards of
asbestos and talc in particular, and the sufficiency of defense testing methods. State-of-the-art
evidence is routinely presented by plaintiffs in asbestos litigation. For these reasons and those
stated in further detail below, Colgate’s motion must be denied in its entirety.
B. Facts
In the Fall of 2018, the FDA formed the IWGACP in response to reports of the presence
of asbestos in talc-containing cosmetic products. Exhibit 1 at 7. It is comprised of a panel of 38
“subject matter experts” (SMEs) from the FDA, National Institute for Occupational Safety and
Health (“NIOSH”), Occupational Safety and Health Administration (“OSHA”), Environmental
Protection Agency (“EPA”), Consumer Product Safety Commission (“CPSC”), and U.S.
Geological Survey (“USGS”). Exhibit 2, Appendices to 2021 White Paper at 122-124. The
participating federal agencies have expertise in asbestos-testing and/or asbestos-related issues
(e.g., from a health perspective) or because they regulate some of the consumer products that
contain talc as an ingredient.
The IWGACP was asked by the FDA to develop a consensus document that would support
the development of standardized testing methods to improve the sensitivity and consistency of
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analyses, and inter-laboratory concurrence when reporting asbestos and other mineral particles of
health concern in talc that could potentially affect consumer’s health from cosmetic use. Exhibit
1 at 7. In January 2020, the IWGACP released its Preliminary Recommendations on testing
methods for asbestos in talc and consumer products containing talc, reflecting the group’s opinions
regarding matters of “scientific debate.” Exhibit 3. In February 2020, the FDA held a public
meeting and opened a docket to discuss and obtain scientific information on topics relating to
testing methodologies, terminology, and criteria that can be applied to characterize and measure
asbestos and other potentially harmful elongate mineral particles (“EMPs”) that may be present as
contaminants in talc and cosmetic products manufactured using talc as an ingredient. Exhibit 1 at
7. In January 2022, after extensive review of data and scientific literature, and thorough
deliberations, the IWGACP released the 2021 White Paper containing the group’s “consensus”
“scientific opinions and related advice to help ensure reliable detection and comprehensive
reporting of asbestos and other amphibole particles when testing cosmetic products containing talc
and talc intended for use in cosmetics.” Id. at 5-6. “These opinions are intended to inform FDA’s
consideration of testing methods of talc-containing cosmetics and talc intended for use in
cosmetics.” Id. at 4.
C. Argument
i. The Existence of the IWGACP and its Publications of Relevant and
Admissible
Under New York law, Plaintiffs are entitled to present “relevant evidence,” meaning
evidence having “any tendency to make the existence of any fact that is of consequence to the
determination of the proceeding more probable or less probable than it would be without the
evidence.” Guide to New York Evidence Rule 4.01. Additionally, “[a]ll relevant evidence is
admissible.” Id. at 4.01(2); Ando v Woodberry NY2d 165, 167 [1960]; People v. Alvino, 71 N.Y.2d
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233, 241 [1987]; People v. Rhinehart, 824 N.Y.S.2d 765 [2006]. Evidence is admissible if its
probative value outweighs its prejudicial effect. People v. Smith, 63 N.Y.2d 41, 64 [1984].
Here, Plaintiff claims that her years of exposure to asbestos-contaminated talcum powder
caused her to develop mesothelioma. In its defense, Colgate claims that its cosmetic talcum powder
product did not contain asbestos, that it reasonably relied on its talc suppliers’ testing methods for
the detection of asbestos, and that any minerals found in its cosmetic talcum powder are not
asbestos and not capable of causing mesothelioma. The FDA’s formation of the IWGACP in 2018,
in direct response to reports of the presence of asbestos in talc-containing cosmetic products to
develop standardized testing methods for identifying asbestos and other mineral particles of health
concern in talc, and the opinions they reached as a result of a years’ long investigation are directly
relevant to issues in dispute.
As an example, the IWGACP’s White Paper discusses the shortcomings of the CTFA J4-
1 testing method developed and utilized by the talc industry, including Colgate and its talc
suppliers for decades before and during Ms. Johnson-Brett’s exposure period. In explaining these
shortcomings, the IWGACP observes what Plaintiffs’ evidence in this case shows, that testing of
cosmetic talc using more sensitive analytical methods like transmission electron microscopy
(TEM) reveals the presence of asbestos in samples that had negative findings for the same products
using the analytical method—polarized light microscopy (PLM)—specified by the J4-1 test.
Exhibit 1 at 4. On this issue, the IWGACP states definitively that, if the objective is to determine
whether asbestos is present in cosmetic talc, electron microscopy-based methods should be used.
Id. at 5. Insofar as opinions such as this have a tendency to prove Plaintiffs’ claims and refute
Colgate’s defense, they relevant and admissible.
ii. The IWGACP Publications Are Appropriate Reliance Materials for
Experts
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The admissibility of expert testimony in New York toxic exposure litigation is governed
by Frye as interpreted by Parker and its progeny. Frye v. United States, 293 F.1013 [DC Cir.,
1923]; Parker v. Mobil Oil Corp., 7 N.Y.3d 434 [2003]. “The use of experts is encouraged to assist
the trier of fact in deciphering matters outside of their ordinary ken.” Manley v. TDX Constr. Corp.,
2002 NY Slip Op 50417[U], *9 [Civ Ct, Richmond County 2002]; Clemente v Blumenberg, 183
Misc 2d 923 [Sup Ct, Richmond County 1999]. Moreover, in New York, “[A]n expert may rely
on out-of-court material if “it is of a kind accepted in the profession as reliable in forming a
professional opinion.” Tassone v. Mid-Valley Oil Co., 5 AD3d 931, 933 [3d Dept 2004].
Specifically, an expert may rely on material not in evidence, including inadmissible hearsay
evidence. Anderson v. Dainack, 39 AD3d 1065, 1067 [3d Dept 2007].
Here, the IWGACP’s Preliminary Recommendations and White Paper are appropriate
reliance materials. Importantly, the December 2021 Working Paper is no longer a preliminary
recommendation as Colgate claims but, rather, represents the group’s consensus opinion on issues
concerning asbestos contamination in talc and testing for asbestos in talc.
The nature of the proceedings by which the group reached consensus supports the
reliability of the opinions, as they resulted from extensive research, public debate, and further
deliberations among highly trained and experienced experts in various fields. The IWGACP’s
opinions as set forth in the White Paper are just as final as opinions set forth in published or peer-
reviewed literature. These opinions reflect what the subject matter experts view as the status of
science as it now exists on keys issues of this case. To the extent the IWGACP recognizes areas
requiring further research (Exhibit 1 at 23), this does not minimize the value or certainty of the
opinions that were conclusively drawn. In this respect, the IWGACP reached a “consensus” as to
numerous issues with enough certainty to provide firm recommendations to the FDA, including:
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x Utilizing both Polarized Light Microscopy (PLM) and Transmission Electron Microscopy
(TEM) methods to identify and report the presence of asbestos and other similar particles;
x Reporting all asbestos and other similar particles greater than or equal to 0.5μm in length
with a length to width aspect ration (AR) greater than or equal to 3:1;
x Providing analytical reports with adequate documentation of findings;
x Establishing policies and procedures covering rigorous training, quality assurance and
quality control, to accompany testing methods, to ensure testing laboratories are qualified
and their qualifications are reviewed on a regular basis; and
x Encouraging future research on reference materials and sample preparation methods to
support standardized test methods for the detection of asbestos in talc and talc-containing
cosmetics.
Exhibit 1 at 17-21.
Indeed, another talc defendant’s own microscopist, Lee Poye, recently testified that that
the White Paper was, “very well done . . .very well thought-out and well put-together document,
in my opinion.” Exhibit 4, 9/7/2022 Deposition of Lee Poye (Chapman v. Avon Products, et al.,
Sup. Ct. of CA, County of Los Angeles, Case No. 22STC05968) at 186:11-187:5. Dr. Segrave,
another defense expert, has also conceded that the White Paper represents the IWGACP’s
consensus as of December 2021. Exhibit 5, 8/26/2022 Deposition of Alan Segrave (Luke v.
Colgate-Palmolive Company, et al., Superior Court of N.J., Middlesex County, Docket No. MID-
L-07565-17) at 137:16-19.
Colgate’s contentions that the IWGACP evidence is inadmissible because it relies on
hearsay is of no moment. Experts are permitted to rely upon inadmissible and/or hearsay facts and
data in forming their opinions. Anderson v Dainack, 39 AD3d 1065, 1067 [3d Dept 2007].
iii. The IWGACP’s Opinions Do Not Need to Result in Legislative or
Administrative Change to be Admissible
Colgate argues that the Court should exclude IWGACP evidence because it is
“preliminary” and has not resulted in a change in current regulations. Colgate does not cite any
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authority to support exclusion for these reasons. An administrative rule change is not the measure
of the probative value of the IWGACP’s opinions. It is not the Working Group’s objective to affect
a final rule change but, rather, to advise and inform the FDA of the scientific information and data
regarding issues that may necessitate a rule change. There is a big difference between the two.
What the FDA does with the information the working group provides is a separate issue and in no
way minimizes the value or reliability of the Working Group’s extensive research, deliberation,
discussion, and final conclusions.
And, in any event is well-settled that regulations are not determinative of issues concerning
liability, especially in the context of understanding the safety of asbestos or talc. See e.g. Tufariello
v. Long Island R. Co., 458 F.3d 80, 91 [2d Cir. 2006] (“Compliance with OSHA standards … has
been held not to be a defense to state tort or criminal liability.”) (quoting UAW v. Johnson Controls,
499 U.S. 187, 214 [1992] (White, J., concurring in part and concurring in the judgment)). As
Plaintiffs’ evidence will demonstrate at trial, agency regulations can be heavily influenced by
industry lobbying, which was how the cosmetic industry has remained self-regulating even after
the FDA expressed concern about asbestos in talc in the 1970s. What is most important here is that
the IWGACP, after extensive research and discussion with highly esteemed experts in their fields,
reached a consensus as to key issues to this case, namely: there have been repeated findings of
asbestos in cosmetic talc, the most sensitive analytical test methods should be used for asbestos
detection, and asbestos fibers should be counted by inclusive criteria.
iv. The IWGACP Evidence is Not Unduly Prejudicial
As this Court is aware, all relevant evidence is admissible unless its probative value is
outweighed by the risk of undue prejudice. Mazella v. Beals, 27 NY3d 694, 709 [2016]; People v.
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Nicholson, 26 NY3d 813, 829 [2016]. Evidence is relevant if it tends to prove the existence or non-
existence of a material fact at issue in the case. People v. Jin Cheng Lin, 26 NY3d 701, 727 [2016];
People v. Primo, 96 NY2d 351, 355 [2001]. The standard to exclude relevant evidence is not
whether it is prejudicial, but rather whether it would cause undue prejudice. Hairston v. Metro-
North Commuter R.R., 6 Misc 3d 399, 401 [Sup Ct, NY County 2004]. The existence of the
IWGACP and its efforts and recommendations to “promote the reliability of analytical methods
for asbestos” is directly relevant to Colgate’s claims regarding, inter alia, the asbestos content of
cosmetic talc, the definition of asbestos fibers, the appropriate analytical methods for detecting
such asbestos, and the dangers the asbestos contaminants have presented to consumers, such as
Ms. Johnson-Brett. Colgate has failed to show that the prejudice associated with the admission of
such evidence is sufficient to warrant preclusion.
D. Conclusion
Based on the foregoing, it is respectfully submitted that this Court deny Colgate’s motion
to preclude evidence, argument, or reference to the IWGACP.
II. PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION IN
LIMINE THAT THIS COURT SHOULD PRECLUDE CERTAIN UNRELIABLE
TEST RESULTS FROM THE 1970s
Colgate’s motion to exclude the tests of Dr. Lewin, Dr. Rohl, and Dr. Langer should be
denied, as it would preclude Ms. Johnson-Brett from introducing evidence relevant to essential
elements of her claims. Plaintiff objects to this motion in limine as it is improper. Motions in limine
that asks for the exclusion from evidence wholesale without the proper trial context in which those
witnesses and documents would be offered would foreclose almost all relevant evidence. This
motion in limine is premature and therefore improper. Speed v. Avis Rent-A-Car, 172 A.D.2d 267,
268 [1st Dept. 1991].
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A. Introduction
Defendant filed a motion in limine to preclude Plaintiffs and their experts from relying on
“unreliable” positive test results from the 1970s and any testimony negative to Defendant.
Specifically, Defendant seeks to exclude reports from Dr. Seymour Lewin to the FDA, tests
performed by Drs. Arthur Rohl and Arthur Langer, and testimony from Dr. Langer arguing that it
is not reliable evidence and that it is prejudicial.
Under New York law, “an expert also may rely on out-of-court material if: it is of a kind
accepted in the profession as reliable in forming a professional opinion, provided that there is
evidence establishing the reliability of the out-of-court material.” 7.01 Opinion of Expert Witness
(5)(b). Defendant claims that tests performed in the 1970s with a “positive” test result, i.e. showing
that cosmetic talcum powders, including Defendant’s talc contained asbestos are “unreliable.” At
the same time, Defendant claims that tests performed in the 1970s using the same methodology
with a negative test result are reliable and admissible. In other words, positive test results showing
the presence of asbestos are “unreliable,” while negative test results using the same methodology
are reliable and admissible. As explained, there is no factual or legal support to Defendant’s
arguments and its motion simply highlights the issues the jury must decide.
The issues raised in this motion go to the weight of evidence, and thus fall squarely within
the realm of cross-examination, and Defendant’s ability to present its own evidence. These are not
issues of admissibility. As the manufacturer and supplier of asbestos-containing talcum powder,
Defendant predictably takes issue with the “positive” test results showing that cosmetic talc and
Defendant’s talcum powder contained asbestos. To the extent that Defendant takes issue with the
testing results, it may present its own evidence, as well as cross examine plaintiffs’ experts and
challenge their theories.
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Defendant is well-protected by its ability to present its own evidence and experts, as well
as cross-examine those retained by Plaintiffs. Any weaknesses or frailties in the evidence or
opinions of plaintiffs’ experts or the basis for them may be revealed to the jury by cross-
examination and presentation of its own evidence. Simply because evidence is damaging to
Defendant does not mean it is inadmissible. Defendant is confusing “unduly prejudicial” with
damaging. Plaintiff therefore requests that Defendant Defendant’s motion in limine be denied in
its entirety.
B. Argument
An in limine motion is generally made within the context of a jury trial to protect against
the prejudice that could result if a jury hears inadmissible, irrelevant, or inflammatory evidence.
AR Med. Rehabilitation, P.C. v. GEICO Gen. Ins. Co., 39 Misc 3d 1206[A], 1206A, 2013 NY Slip
Op 50510[U], *3-4 [Civ Ct, Kings County 2013]. The movant has the burden of demonstrating
that the evidence is inadmissible on any relevant ground. National Union v. LE, Myers Co. Group,
937 F.Supp. 276, 287 [S.D.N.Y. 1996].
It is better practice to wait until trial to rule on objections when admissibility substantially
depends upon what facts may be developed there. See Sperberg v. Goodyear Tire & Rubber Co.,
519 F.2d 708, 712 [6th Cir.1975], cert. denied, 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 303 (1975);
Hunter v. Blair, 120 F.R.D. 667 [S.D.Ohio 1987].
i. Lewin’s Testing in the 1970s Confirms Asbestos In Cosmetic Talc.
In 1972, Professor Seymour Lewin, a chemist at New York University, tested 102 products
for the presence of asbestos, including cosmetic talcs. Professor Lewin’s findings were consistent
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with what was known to the U.S. Federal Food and Drug Administration namely, that “cosmetic
talc produced in the 1960s and early 1970s did contain asbestiform minerals.” July 11, 1986 Letter
from J.W. Swanson, Acting Director of the Federal Food and Drug Administration, to P. Douillet,
re: Citizen Petition “Warning Labeling of Asbestos in Cosmetic Talc,” at p. 1, attached as Exhibit
6. Dr. Lewin's findings in 1972 were consistent with what was well-known for some 30 years.
From as early as 1942, scientific literature reported the presence of serpentine and amphibole
minerals in samples of various talc products, including talcum powder. Article in the Journal of
Industrial Hygiene and Technology by R. Z. Shultz and Charles R. Williams, entitled Commercial
Talc Animal and Mineralogical Studies, published in April 1942 in Vol. 24, No. 4, at p. 75,
attached as Exhibit 7.
Indeed, Defendant cites to a 1986 FDA letter as proof that testing done in the 1970s on
cosmetic talc is unreliable. Defendant misreads the letter which expressly acknowledges that
“cosmetic talc produced in the 1960s and early 1970s did contain asbestiform minerals.”
(Colgate’s Memorandum of Law at p 23, footnote 85).
ii. Drs. Lewin, Rohl, and Langer’s Test Results from the 1970s Showing
Asbestos In J&J Are Not Inadmissible Simply Because the Evidence Is
Damaging to J&J.
In March 1976, Arthur Langer, then an Associate Professor of Mineralogy at the Mount
Sinai School of Medicine, and Arthur Rohl met with the Federal Food and Drug Administration
(FDA), Division of Cosmetics Technology at Mount Sinai’s Environmental Sciences Laboratory
to discuss their findings of asbestos in various cosmetic talcum powders. Professor Langer found
tremolite and/or anthophyllite in ten cosmetic talc products out of twenty samples. March 22, 1976,
Memorandum of Meeting at the Environmental Sciences Laboratory in Mount Sinai School of
Medicine, City University of New York, between Members of the Staff of Environmental Sciences
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Laboratories, Arthur Langer and Arthur Rohl and the Federal FDA, Division of Cosmetics
Technology, Clifton H. Wilson and Ronald L. Yates, regarding Analytical Methodology for the
Detection of and Determination of Asbestos Minerals in Talc, at p. 1, 2 and 3, attached as Exhibit
8. At the meeting, “Dr. Langer was somewhat disgusted by the talc industry’s attitude. He said the
results of his work has been known to the industry for several years, but nothing was done until
the analytical results became public.” Id. at p. 2-3.
Dr. Langer’s 1976 study showing asbestos in cosmetic talcum powder confirmed what he
already knew, namely, that prior to 1968, cosmetic talcum powder contained asbestos: “according
to my paper, some of these powders contained traces of chrysotile.” (Exhibit 9, 3/3/2015
Deposition of Arthur M. Langer, Ph.D.,(Winkel, et al. v. Calaveras, et al., Superior Court of CA,
County of Los Angeles, Case No. BC549253) at 113:3-114:2 and 114:8-22) In December 1968
Dr. Langer and Dr. Selikoff went to the FDA give a seminar before the Division of Pharmacology
and Toxicology raising the potential issue of contamination of consumer talc products with
asbestos. (Exhibit 9 at 142:15-143:04). Dr. Langer admitted that a tremolite cleavage fragment
that is the same shape and diameter of an asbestos fiber could cause DNA damage in a human
pleura. Exhibit 9 at 165:19-166:03, see also 201:24-203:24 [chrysotile asbestos can cause
mesothelioma]; and 194:6-13 [cumulative dose to asbestos increases risk for mesothelioma],
Exhibit 9.
According to Dr. Langer, it was known from the 1920s that there were potential health
risks associated with exposure to talc. Exhibit 9 at 83:2-14. Dr. Langer further admitted that since
the 1940s, it has been known in medical and scientific literature that commercial talc is sometimes
contaminated with asbestos. Id. at 208:2-6, 205:2-207:21 [knowledge regarding history of asbestos
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and known to cause fatal diseases]. By the 1940s, it was known that cosmetic talc could contain
serpentine minerals and tremolite. Id. at 88:9-13.) By the 1960s, it was known that fibrous talc
could cause malignancies. Id. at 83:25-84:18.
Evidence of positive test results from the 1970s confirming the presence of asbestos in
cosmetic talc and Defendant’s talcum powder in particular, is not inadmissible nor unduly
prejudicial under New York Rules of Evidence. Rather, it appears that Defendant is confusing
“unduly prejudicial” with evidence that is prejudicial and/or damaging. They are not the same.
Simply because evidence is damaging to Defendant does not mean it is inadmissible. Hairston v.
Metro-North Commuter R.R., 6 Misc 3d 399, 401 [Sup. Ct. N.Y. Cty. 2004].
In this case, Defendant has an opportunity to cross-examine any witness that is presented.
Further, there is no evidence that any prejudice will outweigh its probative value. The primary
focus is on the presence of asbestos in cosmetic talc and Defendant’s talcum powder in particular
during the time that Plaintiff used the product. Positive test results from the 1970s show that
cosmetic talc, in general, and Defendant’s talcum powder in particular, contained asbestos—the
crux of this action. Under New York law, such evidence is relevant and admissible. Mazella v.
Beals, 27 NY3d 694, 709 [2016]; People v. Nicholson, 26 NY3d 813, 829 [2016]. The fact that
positive test results from the 1970s also undermine Defendant’s defense does not alter its
admissibility.
iii. Plaintiffs’ Experts May Refer to Materials, Including Reliable
Test Results In Forming Their Opinions.
It is well-established that an expert witness may testify on direct examination about the
reasons for his opinion and the matter upon which it is based. It follows that expert witnesses may
testify as to the basis for his/her opinions. The bottom line is that Defendant will have every
opportunity to present its own evidence, as well as cross examine plaintiffs’ witnesses at trial and
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identify the sources which each expert relies upon. Until such time, however, Defendant may not
seek to preemptively exclude all “positive” test results from the 1970s showing that cosmetic talc
contained asbestos simply because it is unfavorable to their theory of the case.
iv. Drs. Lewin, Rohl, and Langer’s Test Results from the 1970s is Admissible
evidence for the non-hearsay purpose in regard to Knowledge and Notice.
These results are relevant in terms of state-of-the-art evidence. Such evidence is routinely
presented by plaintiffs in asbestos litigation. As this is a negligence case, Plaintiffs bear the burden
of demonstrating what Defendant knew or should have known regarding the hazards of asbestos
and its asbestos-containing talcum powder. In order to establish this, Plaintiffs must demonstrate
that the hazards of asbestos were knowable to Defendant at the time that Ms. Johnson-Brett was
exposed to asbestos from its products. The state-of-the-art evidence gives the jury a historical
picture of what was known and knowable regarding the hazards of asbestos at the time that Ms.
Johnson-Brett was exposed to asbestos from Defendant’s products.
v. Defendant’s Criticisms of Drs. Lewin, Rohl, and Langer’s Testing Results
from the 1970s Go To the Weight of Evidence and Are The Proper Basis of
Cross-Examination.
The issues raised in this motion go the weight of evidence and fall squarely within the
realm of cross-examination and Defendant’s ability to present its own evidence. These are not
issues of admissibility. As a manufacturer and supplier of asbestos-containing talcum powder,
Defendant predictably takes issue with testing results, including its own, showing asbestos in the
talc ore sources and the finished product. Defendant’s criticisms are the proper subject of cross-
examination and not exclusion. Defendant will be able to argue and cross-examine Plaintiffs
witnesses to make the argument, but that is the correct procedure, not a motion in limine that would
additionally impact evidence being brought against other defendants.
vi. Dr. Langer’s testimony is Admissible Evidence.
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Dr. Lagner’s testimony is relevant to this case as it shows asbestos was in Defendant’s
products and in cosmetic talcum powders in general, it is not confusing as the testimonies or
opinions can change when examined or introduced to new evidence, and this evidence is not
prejudicial and does not substantially outweigh the probative value of their testimonies.
C. Conclusion
For the foregoing reasons, Plaintiffs respectfully request that this motion in limine be
denied in its entirety.
III. PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION IN
LIMINE THAT THIS COURT SHOULD PRECLUDE TESTING AND OPINIONS
OF NONTESTIFYING EXPERTS
A. Introduction
Colgate, grasping for straws, attempts to preclude the article “Asbestos in Commercial
Cosmetic Talcum Powder as a Cause of Mesothelioma in Women.” Ronald E. Gordon, Sean
Fitzgerald, & James Millette, Asbestos in Commercial Cosmetic Talcum Powder as a Cause of
Mesothelioma in Women, 20 Int’l J. Occupational & Envtl. Health No. 4 (the “Gordon Article”).
Exhibit 10 (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4164883). This article is (i) relevant;
(ii) the type of material that an expert may rely upon; and (iii) there is no undue prejudice to
Defendant.
B. Argument
i. The Gordon Article is Relevant for the Jury Since It Establishes that the Use
of Talcum Powder Generates Respirable Fibers.
Under New York law, Plaintiffs are entitled to present “relevant evidence,” meaning
evidence having “any tendency to make the existence of any fact that is of consequence to the
determination of the proceeding more probable or less probable than it would be without the
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evidence.” Guide to New York Evidence Rule 4.01. Additionally, “[a]ll relevant evidence is
admissible.” Id. at 4.01(2); Ando v. Woodberry NY2d 165, 167 [1960]; People v. Alvino, 71 N.Y.2d
233, 241 [1987]; People v. Rhinehart, 824 N.Y.S.2d 765 [2006]. Evidence is admissible if its
probative value outweighs its prejudicial effect. People v. Smith, 63 N.Y.2d 41, 64 [1984]. Here,
the evidence is relevant and admissible for several purposes.
In this case, the Gordon Article is relevant since it deals with fiber release and identifies
talcum powder as a respirable product. Exhibit 10. Specifically, t
Preview
FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM INDEX NO. E2022002698 NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3820938 Book Page CIVIL Return To: No. Pages: 96 KUSH SHUKLA 1040 6th Avenue, Suite 12B Instrument: MEMO IN OPPOSITION New York, NY 10018 Control #: 202404111946 Index #: E2022002698 Date: 04/11/2024 JOHNSON-BRETT, LINDA Time: 11:52:25 PM BRETT, BRADFORD A.O. SMITH CORPORATION., AVON PRODUCTS, INC., BIRD INCORPORATED, BRENNTAG NORTH AMERICA, INC., individually and as successor in interest to MINERAL PIGMENT SOLUTIONS, INC., as successor in interest to WHITTAKER, CLARK & DANIELS, INC., BURNHAM, LLC, individually and as successor to BURNHAM CORPORATION, Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE -----------------------------------------------------------------------x LINDA JOHNSON-BRETT and BRADFORD BRETT, : Index No. E2022002698 : Plaintiffs, : Hon. Erin P. Gall, J.S.C. : -against- : Motion Seq. 25 : A.O. SMITH CORPORATION., et. al., : : Defendants. : ------------------------------------------------------------------------x PLAINTIFFS’ OPPOSITION TO COLGATE-PALMOLIVE COMPANY, INDIVIDUALLY AND AS SUCCESOR-IN-INTEREST TO THE MENNEN COMPANY’S OMNIBUS MOTION IN LIMINE Plaintiffs Linda Johnson-Brett (hereinafter “Ms. Johnson-Brett”) and Bradford Brett, by and through their attorneys at the law offices of Meirowitz & Wasserberg, LLP, hereby submit their opposition to motions in limine (“MIL”) filed by Colgate-Palmolive Company’s, individually and as a successor-in-interest to The Mennen Company (hereinafter “Colgate”, “Mennen”, and/or “Defendant”). As an initial matter, Plaintiffs note that Defendant’s motions in limine are vague and entirely premature, as it has not identified with particularity what information and/or evidence it seeks to preclude. Therefore, it is impossible for Plaintiffs to adequately respond to Defendant’s motions. Accordingly, the Court should reserve ruling until the time of trial when the Court can review the evidence individually and judge its relevance in context. See, e.g., Speed v. Avis Rent- A-Car, 172 A.D.2d 267, 268 (1st Dept. 1991) (denying defendant’s motion in limine regarding admissibility of Ford’s recall evidence as “premature” and noting that a ruling on the issue “is more properly made at trial when [the evidence]’s relevance, or lack of relevance, may be determined in context”). 2 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 To the limited extent that Plaintiffs can, the following sections will provide a response to each and every motion made by Defendant. However, Plaintiffs reserve their right to respond when, and if, Defendant identifies the exact evidence it seeks to preclude. Additionally, Plaintiffs note that many of the motions made by Defendant are premature and we respectfully respect that this Court withhold its decision to the time trial once actual evidence and foundation for said evidence is presented before her Honor. I. PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION IN LIMINE TO PRECLUDE ALL EVIDENCE, ARGUMENT, OR REFERENCE TO THE INTERAGENCY WORKING GROUP ON ASBESTOS IN CONSUMER PRODUCTS A. Introduction Plaintiffs hereby oppose Colgate’s motion in limine to Exclude All Evidence, Argument, or Reference to the Interagency Working Group on Asbestos in Consumer Products. Colgate seeks a premature, blanket order precluding all evidence related to the Interagency Working Group on Asbestos in Consumer Products (“IWGACP”), formed by the Food and Drug Administration (“FDA”) in the Fall of 2018 to support the development of standardized testing methods for asbestos and other mineral particles of health concern in talc. Colgate argues that any IWGACP-related evidence is irrelevant, inadmissible hearsay, and prejudicial because it only reflects “preliminary recommendations” and has not led to a change in FDA regulations or other legislation. These arguments are based on an unreasonably myopic view of New York law regarding expert reliance materials. The IWGACP’s latest publication is its white paper titled “IWGACP Scientific Opinions on Testing Methods for Asbestos in Cosmetic Products Containing Talc (including Talc Intended for Use in Cosmetics)” (hereinafter “White Paper”). The scientific opinions outlined therein are no longer “preliminary recommendations” but rather, represent the “consensus” reached by the 2 3 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 IWGACP regarding appropriate testing methods for asbestos in cosmetic talc following extensive research and debate among experts in occupational and environmental medicine, geology, mineralogy, microscopy, and industrial hygiene. See White Paper: IWGACP Scientific Opinions on Testing Methods for Asbestos in Cosmetic Products Containing Talc (Dec. 2021), attached as Exhibit 1. It is, without question, appropriate expert reliance material and admissible as a learned treatise. What is more, evidence related to the IWGACP and their publication of the “White Paper” is relevant and admissible to the state-of-the-art, Colgate’s knowledge regarding the hazards of asbestos and talc in particular, and the sufficiency of defense testing methods. State-of-the-art evidence is routinely presented by plaintiffs in asbestos litigation. For these reasons and those stated in further detail below, Colgate’s motion must be denied in its entirety. B. Facts In the Fall of 2018, the FDA formed the IWGACP in response to reports of the presence of asbestos in talc-containing cosmetic products. Exhibit 1 at 7. It is comprised of a panel of 38 “subject matter experts” (SMEs) from the FDA, National Institute for Occupational Safety and Health (“NIOSH”), Occupational Safety and Health Administration (“OSHA”), Environmental Protection Agency (“EPA”), Consumer Product Safety Commission (“CPSC”), and U.S. Geological Survey (“USGS”). Exhibit 2, Appendices to 2021 White Paper at 122-124. The participating federal agencies have expertise in asbestos-testing and/or asbestos-related issues (e.g., from a health perspective) or because they regulate some of the consumer products that contain talc as an ingredient. The IWGACP was asked by the FDA to develop a consensus document that would support the development of standardized testing methods to improve the sensitivity and consistency of 3 4 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 analyses, and inter-laboratory concurrence when reporting asbestos and other mineral particles of health concern in talc that could potentially affect consumer’s health from cosmetic use. Exhibit 1 at 7. In January 2020, the IWGACP released its Preliminary Recommendations on testing methods for asbestos in talc and consumer products containing talc, reflecting the group’s opinions regarding matters of “scientific debate.” Exhibit 3. In February 2020, the FDA held a public meeting and opened a docket to discuss and obtain scientific information on topics relating to testing methodologies, terminology, and criteria that can be applied to characterize and measure asbestos and other potentially harmful elongate mineral particles (“EMPs”) that may be present as contaminants in talc and cosmetic products manufactured using talc as an ingredient. Exhibit 1 at 7. In January 2022, after extensive review of data and scientific literature, and thorough deliberations, the IWGACP released the 2021 White Paper containing the group’s “consensus” “scientific opinions and related advice to help ensure reliable detection and comprehensive reporting of asbestos and other amphibole particles when testing cosmetic products containing talc and talc intended for use in cosmetics.” Id. at 5-6. “These opinions are intended to inform FDA’s consideration of testing methods of talc-containing cosmetics and talc intended for use in cosmetics.” Id. at 4. C. Argument i. The Existence of the IWGACP and its Publications of Relevant and Admissible Under New York law, Plaintiffs are entitled to present “relevant evidence,” meaning evidence having “any tendency to make the existence of any fact that is of consequence to the determination of the proceeding more probable or less probable than it would be without the evidence.” Guide to New York Evidence Rule 4.01. Additionally, “[a]ll relevant evidence is admissible.” Id. at 4.01(2); Ando v Woodberry NY2d 165, 167 [1960]; People v. Alvino, 71 N.Y.2d 4 5 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 233, 241 [1987]; People v. Rhinehart, 824 N.Y.S.2d 765 [2006]. Evidence is admissible if its probative value outweighs its prejudicial effect. People v. Smith, 63 N.Y.2d 41, 64 [1984]. Here, Plaintiff claims that her years of exposure to asbestos-contaminated talcum powder caused her to develop mesothelioma. In its defense, Colgate claims that its cosmetic talcum powder product did not contain asbestos, that it reasonably relied on its talc suppliers’ testing methods for the detection of asbestos, and that any minerals found in its cosmetic talcum powder are not asbestos and not capable of causing mesothelioma. The FDA’s formation of the IWGACP in 2018, in direct response to reports of the presence of asbestos in talc-containing cosmetic products to develop standardized testing methods for identifying asbestos and other mineral particles of health concern in talc, and the opinions they reached as a result of a years’ long investigation are directly relevant to issues in dispute. As an example, the IWGACP’s White Paper discusses the shortcomings of the CTFA J4- 1 testing method developed and utilized by the talc industry, including Colgate and its talc suppliers for decades before and during Ms. Johnson-Brett’s exposure period. In explaining these shortcomings, the IWGACP observes what Plaintiffs’ evidence in this case shows, that testing of cosmetic talc using more sensitive analytical methods like transmission electron microscopy (TEM) reveals the presence of asbestos in samples that had negative findings for the same products using the analytical method—polarized light microscopy (PLM)—specified by the J4-1 test. Exhibit 1 at 4. On this issue, the IWGACP states definitively that, if the objective is to determine whether asbestos is present in cosmetic talc, electron microscopy-based methods should be used. Id. at 5. Insofar as opinions such as this have a tendency to prove Plaintiffs’ claims and refute Colgate’s defense, they relevant and admissible. ii. The IWGACP Publications Are Appropriate Reliance Materials for Experts 5 6 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 The admissibility of expert testimony in New York toxic exposure litigation is governed by Frye as interpreted by Parker and its progeny. Frye v. United States, 293 F.1013 [DC Cir., 1923]; Parker v. Mobil Oil Corp., 7 N.Y.3d 434 [2003]. “The use of experts is encouraged to assist the trier of fact in deciphering matters outside of their ordinary ken.” Manley v. TDX Constr. Corp., 2002 NY Slip Op 50417[U], *9 [Civ Ct, Richmond County 2002]; Clemente v Blumenberg, 183 Misc 2d 923 [Sup Ct, Richmond County 1999]. Moreover, in New York, “[A]n expert may rely on out-of-court material if “it is of a kind accepted in the profession as reliable in forming a professional opinion.” Tassone v. Mid-Valley Oil Co., 5 AD3d 931, 933 [3d Dept 2004]. Specifically, an expert may rely on material not in evidence, including inadmissible hearsay evidence. Anderson v. Dainack, 39 AD3d 1065, 1067 [3d Dept 2007]. Here, the IWGACP’s Preliminary Recommendations and White Paper are appropriate reliance materials. Importantly, the December 2021 Working Paper is no longer a preliminary recommendation as Colgate claims but, rather, represents the group’s consensus opinion on issues concerning asbestos contamination in talc and testing for asbestos in talc. The nature of the proceedings by which the group reached consensus supports the reliability of the opinions, as they resulted from extensive research, public debate, and further deliberations among highly trained and experienced experts in various fields. The IWGACP’s opinions as set forth in the White Paper are just as final as opinions set forth in published or peer- reviewed literature. These opinions reflect what the subject matter experts view as the status of science as it now exists on keys issues of this case. To the extent the IWGACP recognizes areas requiring further research (Exhibit 1 at 23), this does not minimize the value or certainty of the opinions that were conclusively drawn. In this respect, the IWGACP reached a “consensus” as to numerous issues with enough certainty to provide firm recommendations to the FDA, including: 6 7 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 x Utilizing both Polarized Light Microscopy (PLM) and Transmission Electron Microscopy (TEM) methods to identify and report the presence of asbestos and other similar particles; x Reporting all asbestos and other similar particles greater than or equal to 0.5μm in length with a length to width aspect ration (AR) greater than or equal to 3:1; x Providing analytical reports with adequate documentation of findings; x Establishing policies and procedures covering rigorous training, quality assurance and quality control, to accompany testing methods, to ensure testing laboratories are qualified and their qualifications are reviewed on a regular basis; and x Encouraging future research on reference materials and sample preparation methods to support standardized test methods for the detection of asbestos in talc and talc-containing cosmetics. Exhibit 1 at 17-21. Indeed, another talc defendant’s own microscopist, Lee Poye, recently testified that that the White Paper was, “very well done . . .very well thought-out and well put-together document, in my opinion.” Exhibit 4, 9/7/2022 Deposition of Lee Poye (Chapman v. Avon Products, et al., Sup. Ct. of CA, County of Los Angeles, Case No. 22STC05968) at 186:11-187:5. Dr. Segrave, another defense expert, has also conceded that the White Paper represents the IWGACP’s consensus as of December 2021. Exhibit 5, 8/26/2022 Deposition of Alan Segrave (Luke v. Colgate-Palmolive Company, et al., Superior Court of N.J., Middlesex County, Docket No. MID- L-07565-17) at 137:16-19. Colgate’s contentions that the IWGACP evidence is inadmissible because it relies on hearsay is of no moment. Experts are permitted to rely upon inadmissible and/or hearsay facts and data in forming their opinions. Anderson v Dainack, 39 AD3d 1065, 1067 [3d Dept 2007]. iii. The IWGACP’s Opinions Do Not Need to Result in Legislative or Administrative Change to be Admissible Colgate argues that the Court should exclude IWGACP evidence because it is “preliminary” and has not resulted in a change in current regulations. Colgate does not cite any 7 8 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 authority to support exclusion for these reasons. An administrative rule change is not the measure of the probative value of the IWGACP’s opinions. It is not the Working Group’s objective to affect a final rule change but, rather, to advise and inform the FDA of the scientific information and data regarding issues that may necessitate a rule change. There is a big difference between the two. What the FDA does with the information the working group provides is a separate issue and in no way minimizes the value or reliability of the Working Group’s extensive research, deliberation, discussion, and final conclusions. And, in any event is well-settled that regulations are not determinative of issues concerning liability, especially in the context of understanding the safety of asbestos or talc. See e.g. Tufariello v. Long Island R. Co., 458 F.3d 80, 91 [2d Cir. 2006] (“Compliance with OSHA standards … has been held not to be a defense to state tort or criminal liability.”) (quoting UAW v. Johnson Controls, 499 U.S. 187, 214 [1992] (White, J., concurring in part and concurring in the judgment)). As Plaintiffs’ evidence will demonstrate at trial, agency regulations can be heavily influenced by industry lobbying, which was how the cosmetic industry has remained self-regulating even after the FDA expressed concern about asbestos in talc in the 1970s. What is most important here is that the IWGACP, after extensive research and discussion with highly esteemed experts in their fields, reached a consensus as to key issues to this case, namely: there have been repeated findings of asbestos in cosmetic talc, the most sensitive analytical test methods should be used for asbestos detection, and asbestos fibers should be counted by inclusive criteria. iv. The IWGACP Evidence is Not Unduly Prejudicial As this Court is aware, all relevant evidence is admissible unless its probative value is outweighed by the risk of undue prejudice. Mazella v. Beals, 27 NY3d 694, 709 [2016]; People v. 8 9 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 Nicholson, 26 NY3d 813, 829 [2016]. Evidence is relevant if it tends to prove the existence or non- existence of a material fact at issue in the case. People v. Jin Cheng Lin, 26 NY3d 701, 727 [2016]; People v. Primo, 96 NY2d 351, 355 [2001]. The standard to exclude relevant evidence is not whether it is prejudicial, but rather whether it would cause undue prejudice. Hairston v. Metro- North Commuter R.R., 6 Misc 3d 399, 401 [Sup Ct, NY County 2004]. The existence of the IWGACP and its efforts and recommendations to “promote the reliability of analytical methods for asbestos” is directly relevant to Colgate’s claims regarding, inter alia, the asbestos content of cosmetic talc, the definition of asbestos fibers, the appropriate analytical methods for detecting such asbestos, and the dangers the asbestos contaminants have presented to consumers, such as Ms. Johnson-Brett. Colgate has failed to show that the prejudice associated with the admission of such evidence is sufficient to warrant preclusion. D. Conclusion Based on the foregoing, it is respectfully submitted that this Court deny Colgate’s motion to preclude evidence, argument, or reference to the IWGACP. II. PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION IN LIMINE THAT THIS COURT SHOULD PRECLUDE CERTAIN UNRELIABLE TEST RESULTS FROM THE 1970s Colgate’s motion to exclude the tests of Dr. Lewin, Dr. Rohl, and Dr. Langer should be denied, as it would preclude Ms. Johnson-Brett from introducing evidence relevant to essential elements of her claims. Plaintiff objects to this motion in limine as it is improper. Motions in limine that asks for the exclusion from evidence wholesale without the proper trial context in which those witnesses and documents would be offered would foreclose almost all relevant evidence. This motion in limine is premature and therefore improper. Speed v. Avis Rent-A-Car, 172 A.D.2d 267, 268 [1st Dept. 1991]. 9 10 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 A. Introduction Defendant filed a motion in limine to preclude Plaintiffs and their experts from relying on “unreliable” positive test results from the 1970s and any testimony negative to Defendant. Specifically, Defendant seeks to exclude reports from Dr. Seymour Lewin to the FDA, tests performed by Drs. Arthur Rohl and Arthur Langer, and testimony from Dr. Langer arguing that it is not reliable evidence and that it is prejudicial. Under New York law, “an expert also may rely on out-of-court material if: it is of a kind accepted in the profession as reliable in forming a professional opinion, provided that there is evidence establishing the reliability of the out-of-court material.” 7.01 Opinion of Expert Witness (5)(b). Defendant claims that tests performed in the 1970s with a “positive” test result, i.e. showing that cosmetic talcum powders, including Defendant’s talc contained asbestos are “unreliable.” At the same time, Defendant claims that tests performed in the 1970s using the same methodology with a negative test result are reliable and admissible. In other words, positive test results showing the presence of asbestos are “unreliable,” while negative test results using the same methodology are reliable and admissible. As explained, there is no factual or legal support to Defendant’s arguments and its motion simply highlights the issues the jury must decide. The issues raised in this motion go to the weight of evidence, and thus fall squarely within the realm of cross-examination, and Defendant’s ability to present its own evidence. These are not issues of admissibility. As the manufacturer and supplier of asbestos-containing talcum powder, Defendant predictably takes issue with the “positive” test results showing that cosmetic talc and Defendant’s talcum powder contained asbestos. To the extent that Defendant takes issue with the testing results, it may present its own evidence, as well as cross examine plaintiffs’ experts and challenge their theories. 10 11 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 Defendant is well-protected by its ability to present its own evidence and experts, as well as cross-examine those retained by Plaintiffs. Any weaknesses or frailties in the evidence or opinions of plaintiffs’ experts or the basis for them may be revealed to the jury by cross- examination and presentation of its own evidence. Simply because evidence is damaging to Defendant does not mean it is inadmissible. Defendant is confusing “unduly prejudicial” with damaging. Plaintiff therefore requests that Defendant Defendant’s motion in limine be denied in its entirety. B. Argument An in limine motion is generally made within the context of a jury trial to protect against the prejudice that could result if a jury hears inadmissible, irrelevant, or inflammatory evidence. AR Med. Rehabilitation, P.C. v. GEICO Gen. Ins. Co., 39 Misc 3d 1206[A], 1206A, 2013 NY Slip Op 50510[U], *3-4 [Civ Ct, Kings County 2013]. The movant has the burden of demonstrating that the evidence is inadmissible on any relevant ground. National Union v. LE, Myers Co. Group, 937 F.Supp. 276, 287 [S.D.N.Y. 1996]. It is better practice to wait until trial to rule on objections when admissibility substantially depends upon what facts may be developed there. See Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 [6th Cir.1975], cert. denied, 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 303 (1975); Hunter v. Blair, 120 F.R.D. 667 [S.D.Ohio 1987]. i. Lewin’s Testing in the 1970s Confirms Asbestos In Cosmetic Talc. In 1972, Professor Seymour Lewin, a chemist at New York University, tested 102 products for the presence of asbestos, including cosmetic talcs. Professor Lewin’s findings were consistent 11 12 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 with what was known to the U.S. Federal Food and Drug Administration namely, that “cosmetic talc produced in the 1960s and early 1970s did contain asbestiform minerals.” July 11, 1986 Letter from J.W. Swanson, Acting Director of the Federal Food and Drug Administration, to P. Douillet, re: Citizen Petition “Warning Labeling of Asbestos in Cosmetic Talc,” at p. 1, attached as Exhibit 6. Dr. Lewin's findings in 1972 were consistent with what was well-known for some 30 years. From as early as 1942, scientific literature reported the presence of serpentine and amphibole minerals in samples of various talc products, including talcum powder. Article in the Journal of Industrial Hygiene and Technology by R. Z. Shultz and Charles R. Williams, entitled Commercial Talc Animal and Mineralogical Studies, published in April 1942 in Vol. 24, No. 4, at p. 75, attached as Exhibit 7. Indeed, Defendant cites to a 1986 FDA letter as proof that testing done in the 1970s on cosmetic talc is unreliable. Defendant misreads the letter which expressly acknowledges that “cosmetic talc produced in the 1960s and early 1970s did contain asbestiform minerals.” (Colgate’s Memorandum of Law at p 23, footnote 85). ii. Drs. Lewin, Rohl, and Langer’s Test Results from the 1970s Showing Asbestos In J&J Are Not Inadmissible Simply Because the Evidence Is Damaging to J&J. In March 1976, Arthur Langer, then an Associate Professor of Mineralogy at the Mount Sinai School of Medicine, and Arthur Rohl met with the Federal Food and Drug Administration (FDA), Division of Cosmetics Technology at Mount Sinai’s Environmental Sciences Laboratory to discuss their findings of asbestos in various cosmetic talcum powders. Professor Langer found tremolite and/or anthophyllite in ten cosmetic talc products out of twenty samples. March 22, 1976, Memorandum of Meeting at the Environmental Sciences Laboratory in Mount Sinai School of Medicine, City University of New York, between Members of the Staff of Environmental Sciences 12 13 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 Laboratories, Arthur Langer and Arthur Rohl and the Federal FDA, Division of Cosmetics Technology, Clifton H. Wilson and Ronald L. Yates, regarding Analytical Methodology for the Detection of and Determination of Asbestos Minerals in Talc, at p. 1, 2 and 3, attached as Exhibit 8. At the meeting, “Dr. Langer was somewhat disgusted by the talc industry’s attitude. He said the results of his work has been known to the industry for several years, but nothing was done until the analytical results became public.” Id. at p. 2-3. Dr. Langer’s 1976 study showing asbestos in cosmetic talcum powder confirmed what he already knew, namely, that prior to 1968, cosmetic talcum powder contained asbestos: “according to my paper, some of these powders contained traces of chrysotile.” (Exhibit 9, 3/3/2015 Deposition of Arthur M. Langer, Ph.D.,(Winkel, et al. v. Calaveras, et al., Superior Court of CA, County of Los Angeles, Case No. BC549253) at 113:3-114:2 and 114:8-22) In December 1968 Dr. Langer and Dr. Selikoff went to the FDA give a seminar before the Division of Pharmacology and Toxicology raising the potential issue of contamination of consumer talc products with asbestos. (Exhibit 9 at 142:15-143:04). Dr. Langer admitted that a tremolite cleavage fragment that is the same shape and diameter of an asbestos fiber could cause DNA damage in a human pleura. Exhibit 9 at 165:19-166:03, see also 201:24-203:24 [chrysotile asbestos can cause mesothelioma]; and 194:6-13 [cumulative dose to asbestos increases risk for mesothelioma], Exhibit 9. According to Dr. Langer, it was known from the 1920s that there were potential health risks associated with exposure to talc. Exhibit 9 at 83:2-14. Dr. Langer further admitted that since the 1940s, it has been known in medical and scientific literature that commercial talc is sometimes contaminated with asbestos. Id. at 208:2-6, 205:2-207:21 [knowledge regarding history of asbestos 13 14 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 and known to cause fatal diseases]. By the 1940s, it was known that cosmetic talc could contain serpentine minerals and tremolite. Id. at 88:9-13.) By the 1960s, it was known that fibrous talc could cause malignancies. Id. at 83:25-84:18. Evidence of positive test results from the 1970s confirming the presence of asbestos in cosmetic talc and Defendant’s talcum powder in particular, is not inadmissible nor unduly prejudicial under New York Rules of Evidence. Rather, it appears that Defendant is confusing “unduly prejudicial” with evidence that is prejudicial and/or damaging. They are not the same. Simply because evidence is damaging to Defendant does not mean it is inadmissible. Hairston v. Metro-North Commuter R.R., 6 Misc 3d 399, 401 [Sup. Ct. N.Y. Cty. 2004]. In this case, Defendant has an opportunity to cross-examine any witness that is presented. Further, there is no evidence that any prejudice will outweigh its probative value. The primary focus is on the presence of asbestos in cosmetic talc and Defendant’s talcum powder in particular during the time that Plaintiff used the product. Positive test results from the 1970s show that cosmetic talc, in general, and Defendant’s talcum powder in particular, contained asbestos—the crux of this action. Under New York law, such evidence is relevant and admissible. Mazella v. Beals, 27 NY3d 694, 709 [2016]; People v. Nicholson, 26 NY3d 813, 829 [2016]. The fact that positive test results from the 1970s also undermine Defendant’s defense does not alter its admissibility. iii. Plaintiffs’ Experts May Refer to Materials, Including Reliable Test Results In Forming Their Opinions. It is well-established that an expert witness may testify on direct examination about the reasons for his opinion and the matter upon which it is based. It follows that expert witnesses may testify as to the basis for his/her opinions. The bottom line is that Defendant will have every opportunity to present its own evidence, as well as cross examine plaintiffs’ witnesses at trial and 14 15 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 identify the sources which each expert relies upon. Until such time, however, Defendant may not seek to preemptively exclude all “positive” test results from the 1970s showing that cosmetic talc contained asbestos simply because it is unfavorable to their theory of the case. iv. Drs. Lewin, Rohl, and Langer’s Test Results from the 1970s is Admissible evidence for the non-hearsay purpose in regard to Knowledge and Notice. These results are relevant in terms of state-of-the-art evidence. Such evidence is routinely presented by plaintiffs in asbestos litigation. As this is a negligence case, Plaintiffs bear the burden of demonstrating what Defendant knew or should have known regarding the hazards of asbestos and its asbestos-containing talcum powder. In order to establish this, Plaintiffs must demonstrate that the hazards of asbestos were knowable to Defendant at the time that Ms. Johnson-Brett was exposed to asbestos from its products. The state-of-the-art evidence gives the jury a historical picture of what was known and knowable regarding the hazards of asbestos at the time that Ms. Johnson-Brett was exposed to asbestos from Defendant’s products. v. Defendant’s Criticisms of Drs. Lewin, Rohl, and Langer’s Testing Results from the 1970s Go To the Weight of Evidence and Are The Proper Basis of Cross-Examination. The issues raised in this motion go the weight of evidence and fall squarely within the realm of cross-examination and Defendant’s ability to present its own evidence. These are not issues of admissibility. As a manufacturer and supplier of asbestos-containing talcum powder, Defendant predictably takes issue with testing results, including its own, showing asbestos in the talc ore sources and the finished product. Defendant’s criticisms are the proper subject of cross- examination and not exclusion. Defendant will be able to argue and cross-examine Plaintiffs witnesses to make the argument, but that is the correct procedure, not a motion in limine that would additionally impact evidence being brought against other defendants. vi. Dr. Langer’s testimony is Admissible Evidence. 15 16 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 Dr. Lagner’s testimony is relevant to this case as it shows asbestos was in Defendant’s products and in cosmetic talcum powders in general, it is not confusing as the testimonies or opinions can change when examined or introduced to new evidence, and this evidence is not prejudicial and does not substantially outweigh the probative value of their testimonies. C. Conclusion For the foregoing reasons, Plaintiffs respectfully request that this motion in limine be denied in its entirety. III. PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION IN LIMINE THAT THIS COURT SHOULD PRECLUDE TESTING AND OPINIONS OF NONTESTIFYING EXPERTS A. Introduction Colgate, grasping for straws, attempts to preclude the article “Asbestos in Commercial Cosmetic Talcum Powder as a Cause of Mesothelioma in Women.” Ronald E. Gordon, Sean Fitzgerald, & James Millette, Asbestos in Commercial Cosmetic Talcum Powder as a Cause of Mesothelioma in Women, 20 Int’l J. Occupational & Envtl. Health No. 4 (the “Gordon Article”). Exhibit 10 (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4164883). This article is (i) relevant; (ii) the type of material that an expert may rely upon; and (iii) there is no undue prejudice to Defendant. B. Argument i. The Gordon Article is Relevant for the Jury Since It Establishes that the Use of Talcum Powder Generates Respirable Fibers. Under New York law, Plaintiffs are entitled to present “relevant evidence,” meaning evidence having “any tendency to make the existence of any fact that is of consequence to the determination of the proceeding more probable or less probable than it would be without the 16 17 of 96 202404111946 04/11/2024 11:52:25 PM CIVIL 202404111946 INDEX NO. E2022002698 FILED: MONROE COUNTY CLERK 04/11/2024 11:50 PM NYSCEF DOC. NO. 721 RECEIVED NYSCEF: 04/11/2024 evidence.” Guide to New York Evidence Rule 4.01. Additionally, “[a]ll relevant evidence is admissible.” Id. at 4.01(2); Ando v. Woodberry NY2d 165, 167 [1960]; People v. Alvino, 71 N.Y.2d 233, 241 [1987]; People v. Rhinehart, 824 N.Y.S.2d 765 [2006]. Evidence is admissible if its probative value outweighs its prejudicial effect. People v. Smith, 63 N.Y.2d 41, 64 [1984]. Here, the evidence is relevant and admissible for several purposes. In this case, the Gordon Article is relevant since it deals with fiber release and identifies talcum powder as a respirable product. Exhibit 10. Specifically, t