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C.A. Reverses Summary Judgment for Avon in Asbestos-Related Action by Cancer Victim
By a MetNews Staff Writer
The Court of Appeal for this district yesterday reversed a summary judgment in favor of Avon in an action by a woman who developed mesothelioma, allegedly from using the defendant’s talcum powder from the mid-1970s to 2007, with the panel declaring that the sole declaration upon which the trial court relied in determining there was no liability was improperly relied upon.
That declaration, by Avon employee Lisa Gallo, attested to the safety of the company’s talcum powder, insisting that since the early 1970s, only asbestos-free talc was accepted from suppliers. However, Gallo did not come to work for Avon until 1994.
Avon was sued by Alicia Ramirez for personal injuries and by her husband, Fermin Ramirez, for loss of consortium.
Cunningham’s Ruling
The March 2, 2021 minute order reflects this ruling by Los Angeles Superior Court Judge David S. Cunningham III:
“The motion for summary judgment is granted because Avon’s affirmative evidence shifts the burden, and Plaintiffs’ evidence fails to raise triable issues of asbestos content and exposure. Avon never included or used asbestos as an ingredient or component of its cosmetic products.”
In her opinion reversing the summary judgment, Presiding Justice Maria E. Stratton of Div. Eight said:
“The Ramirezes contend the trial court erred in overruling their objections to the Gallo Declaration and attached exhibits based on lack of foundation, lack of personal knowledge and the hearsay nature of the documents. We agree.”
During oral argument on the motion, Cunningham explained that Gallo “was offered as a designated corporate representative and person most knowledgeable, which does give a basis for her legally to obtain and provide the foundational testimony, based on her independent review, which I think she did indicate she had done.” He added:
“And also when I look at her title and her duties and responsibilities, that further suggests that the declaration is appropriately admissible and may be considered by the court as affirmative evidence.”
Two Categories
Stratton commented:
“The Evidence Code recognizes only two types of witnesses: lay witnesses and expert witnesses….Evidence Code section 801 governs the testimony of an expert witness, who may provide an opinion based on hearsay which need not always be based on personal knowledge.
“There is no special category of ‘corporate representative’ witness, as the trial court suggested. There is no exemption from the Evidence Code for a witness who has conducted an ‘independent review,’ whatever the trial court meant by that phrase. Gallo was certainly not an independent witness; she is an Avon employee who conducted her ‘investigation and review’ on behalf of Avon, a party to this action. Even trained and sworn police officers who are authorized by the State of California to investigate crimes are not exempt from the requirements of the Evidence Code when testifying at trial in a non-expert capacity. Gallo was simply a lay witness, and as such she was limited to matters as to which she had personal knowledge.”
Attaching 15 company-prepared documents to the declaration did not help, Stratton said, because those documents were, themselves, hearsay.
Avon Argued
Avon argued that because Gallo was deposed as the corporation’s “person most qualified” (“PMQ”), she should be allowed to testify as to such matters as were covered by the deposition. It reasoned that it would be one-sided to require “corporate PMQs to testify at deposition to provide admissions that Plaintiffs can use against the corporation” but preclude corporations “from offering a declaration or even trial testimony to defend against Plaintiff’s claims.”
This, it asserted, “flies against fundamental concepts of due process.”
Stratton responded:
“What Avon is in effect suggesting is that if a party deposes a corporate entity, the corporate entity is no longer bound by the rules of evidence at any subsequent trial or hearing. This is simply nonsense. This would not only eliminate depositions of corporations as a practical matter and thereby frustrate the Civil Discovery Act, it itself would violate due process, since it would place natural persons at a clear disadvantage in defending or prosecuting lawsuits where the opposing party is a corporation.”
The case is LAOSD Asbestos Cases, B313982.
Avon might be remembered for its 1950s television commercials featuring a ringing doorbell and the spoken words, “Avon calling,” and for magazine ads with the words, “Ding Dong,” and “Avon Calling.” Founded in 1882, Avon plans to move its research and development operations next year to Brazil and Poland.
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