Thursday, May 17, 2018
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Court of Appeal:
Summary Judgment for Maker of Face Powder Proper in Action Alleging Asbestos Content
By a MetNews Staff Writer
The Court of Appeal for this district yesterday affirmed summary judgment in favor of the maker of a face powder which was alleged in a complaint to have contained asbestos, leading to a woman contracting mesothelioma.
The woman, Barbara Wittman, died from the disease during pendency of the appeal and her husband, John Wittman, was designated her successor in interest.
Defendant Coty, Inc. relied on discovery responses by the Wittmans to show that they were unable to show that its product contained asbestos. In granting summary judgment Los Angeles Superior Court Judge Steven J. Kleifield ruled inadmissible a declaration from an expert, John Harris, that he had found asbestos in a sample of the powder provided him.
Kleifield found valid the defendant’s contention that the Wittmans did not establish that “the contents of the container” provided to Harris “were not altered after it left Coty’s factory.”
The evidence showed that when suspicions arose as to the cause of the mesothelioma, and Barbara Wittman found an opened container of the face powder in a bedroom drawer, she gave it to her husband who took it to Harris for analysis. Also in that drawer, however, were other products the Wittmans contended contained asbestos, including Wittmans had alleged were asbestos-laden, including Chanel No. 5 bath powder.
Court of Appeal Justice Nora Manella of this district’s Div. Four said yesterday in an opinion that was not certified for publication that Kleifield properly held Harris’s declaration to be inadmissible, explaining:
“In addition to the evidence showing that the Coty product Barbara found might have been contaminated, there is a critical gap in the evidence concerning a key link in the chain of custody, that is, the link between the product Barbara found and the sample Harris tested. The Wittmans’ effort to close that evidentiary gap relies on Harris’s statement that he ‘[was] informed’ that the sample originated with the Wittmans….[T]he trial court did not abuse its discretion in concluding that Harris’s hearsay reference to an unspecified source of information was insufficient to establish the chain of custody. Accordingly, as the Wittmans offered no other evidence in order to raise a triable issue, summary judgment was properly granted.”
The case is Wittman v. Coty, Inc., B286135.
Benno Ashrafi and Josiah Parker of Weitz & Luxenberg represented John Wittman. Attorneys for Coty were Rhonda R. Trotter of Arnold & Porter Kaye Schole; Daniel H. Bromberg and Kirk Goza of Quinn Emanuel Urquhart & Sullivan; and James P. Cunningham and Justin E. Garratt of Tucker Ellis.
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