Brandt, C. v. Colgate Palmolive Company

• Court: Superior Court of Pennsylvania
• Decided: February 21, 2020
• Docket: 940 EDA 2019
• Status: Unpublished

Opinion

J-A24021-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHARLES BRANDT, INDIVIDUALLY : IN THE SUPERIOR COURT OF AND AS EXECUTOR OF THE ESTATE : PENNSYLVANIA OF SALLY BRANDT : : Appellant : : : v. : : No. 940 EDA 2019 : BON-TON STORES INC A/K/A- : POMEROY'S DEPARTMENT STORE, : AKA- POMEROY'S INC., CHARLES B. : CHRYSTAL COMPANY, INC., : COLGATE-PALMOLIVE COMPANY, : WHITTAKER, CLARK & DANIELS, : INC. C/O JOSEPH K. COBUZION, : ESQ., IMERYS TALC AMERICA, INC. : CORPORATION SERVICE COMPANY : AKA- AMERICAN TALC CO.; AND : RESO AKA- CHARLES MATHIERS, : INC; METR AKA- LUZENAC AMER. : INC; CYPRUS T :

Appeal from the Order Entered February 8, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): December Term, 2015, No. 02987

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 21, 2020

Appellant, Charles Brandt, individually and as executor of the Estate of

Sally Brandt, appeal from the Order entered February 8, 2019, which granted

Appellee Colgate-Palmolive Company summary judgment in this asbestos

litigation. We affirm.

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* Retired Senior Judge assigned to the Superior Court. J-A24021-19

Sally Brandt (“Decedent”) used Appellee’s product, Cashmere Bouquet

talcum powder, daily from approximately 1956 until 1970.1 In November

2014, a physician diagnosed the Decedent with malignant pleural

mesothelioma. The Decedent died in February 2018.

Prior to her death, the Decedent and her husband commenced this

litigation, asserting that Cashmere Bouquet had been contaminated with

asbestos. Second Amended Complaint, 7/20/18, at 2. According to Appellant,

her exposure to asbestos-contaminated Cashmere Bouquet was the direct and

proximate cause of her disease. Id.

Appellee did not design or formulate Cashmere Bouquet to contain

asbestos. Rather, Appellant alleged that the talc in Cashmere Bouquet was

contaminated with asbestos. Thus, Appellant needed to establish that

Cashmere Bouquet exposed the Decedent to asbestos to such a degree that

such exposure caused her mesothelioma. In order to do so, Appellant

proffered testimony from several experts relevant to this appeal: (1) Dr.

Ronald Dodson, a biological microscopist; (2) Ms. Susan Raterman, an

industrial hygienist; and (3) Dr. John Maddox, a pathologist.

Appellant proffered Dr. Dodson’s expert opinion to establish the

existence of asbestos in the lung tissue of the Decedent. Dr. Dodson, however,

could not independently conclude that the sample from the Decedent’s lung

1Prior to that time, Ms. Brandt lived with family members who also used Cashmere Bouquet talcum powder.

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tissue contained asbestos because when he examined a sample of the

Decedent’s lung tissue for ferruginous bodies using a light microscope, he did

not observe ferruginous bodies in the sample. Id. at 55. Nevertheless, Dr.

Dodson forwarded this sample of lung tissue to Mr. Lee Poye for additional

evaluation using an electron microscope. Id. at 61-62. Mr. Poye was able to

conclude that there were asbestos fibers in the sample of the lung tissue. Id.

at 62. Dr. Dodson incorporated Mr. Poye’s evaluation into his report, thus

concluding that since there was asbestos in the sample of lung tissue, the

Decedent had been exposed to asbestos. Id. at 62, 72.

Also, Appellant presented the expert report of Ms. Raterman to establish

the extent to which Cashmere Bouquet caused the Decedent to be exposed to

asbestos. According to Ms. Raterman, air sample testing performed by Dr.

John Millette established the presence of asbestos fibers released into the air

during use of Cashmere Bouquet. See N.T. Raterman Deposition, 1/18/19,

at 129-33. Ms. Raterman opined that the Decedent’s exposure to asbestos

was “significant” because she had used Cashmere Bouquet, quantifying Ms.

Brandt’s exposure as potentially “10,000 times background [levels normally

present in the environment].” Id. at 181.

In turn, Dr. Maddox premised his causation testimony upon the

conclusions of Ms. Raterman that Cashmere Bouquet exposed Mrs. Brandt to

10,000 times background levels normally present in the environment. N.T.

Maddox Deposition, 1/29/19, at 92-93. According to Dr. Maddox, the

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Decedent’s cumulative exposure to asbestos from Cashmere Bouquet talcum

powder was a substantial factor in causing her disease. Id. at 93, 96, 97.

In July 2018, Appellee filed a Motion in Limine seeking to preclude Dr.

Dodson from testifying at trial about Dr. Poye’s conclusion that Dr. Poye

discovered asbestos in the Decedent’s sample of lung tissue. In particular,

Appellee objected to Dr. Dodson relying on the contents of the expert report

of Mr. Poye. According to Appellee, such testimony was inadmissible as

hearsay because Mr. Poye was not a testifying expert in Appellant’s case.

Appellee’s Motion in Limine (“Dodson Motion”), 7/23/18, at 1. Appellee

further asserted that Dr. Dodson lacked the foundation necessary to opine

whether Mr. Poye’s results and opinions were scientifically reliable. Id. at 1-

2.

Similarly, in January 2019, Appellee filed a Motion in Limine seeking to

preclude evidence of talcum powder testing performed by Dr. Millette about

the extent to which Ms. Brandt was exposed to asbestos. According to

Appellee, the evidence was inadmissible hearsay because Dr. Millette was not

testifying in Appellant’s case. Appellee’s Motion in Limine (“Millette Order”),

1/25/19, at 2. Additionally, Appellees asserted that Dr. Millette’s test results

and opinions were inadmissible because his methodology was scientifically

unreliable. Id.

In February 2019, the trial court granted both of these motions. Trial

Ct. Order (“Dodson Order”), 2/5/19; Trial Ct. Order (“Millette Order”), 2/5/19.

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Based on the exclusion of Dr. Millette’s scientific evidence and opinions,

Appellee renewed its prior motion for summary judgment, asserting that

Appellants were unable to establish that the Decedent was exposed to

asbestos-contaminated Cashmere Bouquet and, therefore, unable to establish

causation. Appellee’s Renewed Motion for Summary Judgment, 2/7/19; N.T.

Summary Judgment Argument, 2/7/19, at 47-48; see also Appellee’s Motion

for Summary Judgment, 1/10/17. Following argument, the trial court granted

Appellee summary judgment. Trial Ct. Order (S.J. Order), 2/8/19; see also

Trial Ct. Op., 4/11/19, at 7 (specifically concluding that Appellant failed to

present evidence that “Ms. Brandt was exposed to sufficient levels of airborne

asbestos with sufficient frequency to cause her disease from the use of

Cashmere Bouquet”).

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement. The trial court issued a responsive Opinion.

Appellant raises the following issues on appeal, restated for clarity and

reordered for ease of analysis:

1. Whether the trial court abused its discretion in precluding the expert testing results and opinions of (a) Dr. James Millette and (b) Mr. Lee Poye; and

2. Absent this evidence, whether there was nonetheless evidence of Ms. Brandt’s exposure to asbestos fibers emitted from Appellee’s Cashmere Bouquet talcum powder in sufficient quantities such that her exposure was a substantial factor in causing her disease and, therefore, whether this evidence was sufficient to withstand summary judgment.

See Appellant’s Br. at 4.

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Appellant asserts that the trial court abused its discretion in precluding

Ms. Raterman from testifying about testing results and opinions of Dr. James

Millette regarding the extent to which the Decedent’s use of Cashmere

Bouquet resulted in her exposure to asbestos. Appellant’s Br. at 23.

According to Appellant, Pennsylvania Rule of Evidence 703 permits Ms.

Raterman’s reliance upon this evidence—otherwise inadmissible as hearsay—

in formulating her expert opinion. Id. at 24-33. We disagree.

The admissibility of evidence is within the sound discretion of the trial

court. Estate of Hicks v. Dana Cos., LLC, 984 A.2d 943, 961 (Pa. Super.

2009). We review a court’s evidentiary rulings for an abuse of discretion. Id.

An abuse of discretion requires “manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous.” Nazarak v. Waite, 216 A.3d 1093, 1100 (Pa. Super. 2019)

(citation omitted).

Rule 703 provides that “[a]n expert may base an opinion on facts or

data in the case that the expert has been made aware of or personally

observed.” Pa.R.E. 703. “If experts in the particular field would reasonably

rely on those kinds of facts or data in forming an opinion on the subject, they

need not be admissible for the opinion to be admitted.” Id.

Thus, for example, “[i]t is well understood that medical experts are

permitted to express opinions which are based, in part, upon reports which

are not in evidence, but which are customarily relied upon by experts in the

practice of the profession.” Primavera v. Celotex Corp., 608 A.2d 515, 518

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(Pa. Super. 2003) (permitting expert medical testimony that incorporated

extrajudicial diagnostic and surgical reports of plaintiff’s lung disease).2

However, “[a]n ‘expert’ should not be permitted simply to repeat

another’s opinion or data without bringing to bear on it [her] own expertise

and judgment.” Id. at 521; Pa.R.E. 703, Cmt. (“An expert witness cannot be

a mere conduit for the opinion of another.”); see, e.g., Foster v.

McKeesport Hosp., 394 A.2d 1031, 1033 (Pa. Super. 1978) (holding expert

opinion, quoting verbatim from another expert’s report, inadmissible because

it was based on nothing more than belief that the non-testifying expert was

competent).

The applicability of Rule 703 depends on the circumstances of the

particular case. Primavera, 608 A.2d at 521. Where the extrajudicial

evidence is scientific in nature, but novel or of questionable reliability, it is

necessary for the trial court to consider whether the “methodology that

underlies the evidence has “general acceptance in the relevant scientific

community.” Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1044 (Pa. 2003)

(citation omitted). It is well settled in Pennsylvania that “the proponent of

expert scientific evidence bears the burden of establishing all of the elements

for its admission under Pa.R.E. 702, which includes showing that the Frye rule

2 In Primavera, we recognized that the most widely recognized application of this exception to the hearsay rule involved medical testimony, but we did not limit application to medical testimony. Id. at 518 n.4.

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[of general acceptance] is satisfied.” Id. at 1045; see also Daniel J. Anders,

Ohlbaum on the Pennsylvania Rules of Evidence § 703.10 (2020 ed.

LexisNexis Matthew Bender).3

Our review of Ms. Raterman’s testimony reveals that she served solely

as a conduit for Dr. Millette’s expert testing and opinions about the extent to

which Cashmere Bouquet exposed the Decedent to asbestos. Ms. Raterman

quoted verbatim and at considerable length from Dr. Millette’s reports. See

N.T. Raterman Deposition at 124-66. She did not rely on this extrajudicial

evidence to formulate her own, independent, expert opinion. Rather, as noted

by the trial court, Ms. Raterman was merely “parroting” Dr. Millette’s scientific

evidence. See Trial Ct. Op., 4/11/19, at 7.

Further, notwithstanding Ms. Raterman’s specific assertion that she has

“relied on Dr. Millette’s work in other circumstances” and that she commonly

relies on this type of evidence, other courts have found Dr. Millette’s scientific

evidence in this area to be scientifically unreliable. N.T. Raterman Deposition

at 138; Trial Ct. Op. at 9 (noting that another jurisdiction had excluded

testimony from Millette following a Frye hearing).

Under the circumstances of this particular case, Rule 703 does not apply

to permit Appellant to use Ms. Raterman as an expert to establish the extent

to which Cashmere Bouquet exposed the Decedent to asbestos because she

is merely parroting the expert opinion of Dr. Millette and does no independent

3 Frye v. United States, 293 F. 1013 (D.C. Cir. 1913).

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analysis of her own. Primavera, 608 A.2d at 521. Moreover, in our view, to

hold otherwise would empower litigants to avoid strategically a Frye challenge

to novel or potentially unreliable scientific evidence by parroting such

evidence. We decline to do so. Therefore, we discern no abuse of discretion

in the trial court’s decision to preclude Ms. Raterman’s expert testimony.

Estate of Hicks, 984 A.2d at 961.

For similar reasons, we also reject Appellant’s assertion that the trial

court erred in precluding Dr. Dodson from presenting Mr. Poye’s analysis of

the Decedent’s lung tissue sample. See Appellant’s Br. at 33-35. According

to Dr. Dodson, Mr. Poye observed asbestos fibers in the sample tissue using

an electron microscope. N.T. Dodson Deposition at 61-62. However, as noted

by the trial court, “Dr. Dodson neither conducted the testing himself[,] nor

was he present while the testing was taking place.” Trial Ct. Op. at 9. Rule

703 does not permit an expert to serve as a mere conduit for the opinion of

another. Primavera, 608 A.2d at 521.

Finally, we reject Appellant’s contention that even without Ms.

Raterman’s testimony about the extent to which the Decedent was exposed

to asbestos, they proffered sufficient evidence nonetheless to withstand

summary judgment. See Appellant’s Br. at 14-22.

Summary judgment is appropriate where “the record clearly

demonstrates that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law.” Summers v.

Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citation omitted). The

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trial court must consider facts of record and all reasonable inferences derived

therefrom in the light most favorable to the non-moving party; it must resolve

any doubts as to the existence of a genuine issue of material fact against the

moving party; and it may grant summary judgment only where the right to

such judgment is “clear and free from all doubt.” Id. (citation omitted).

Whether there is a genuine issue of material fact presents a question of law,

which on appeal we review de novo. Id.

In the simplest terms, an asbestos plaintiff must establish that use of a

defendant’s product exposed the plaintiff to airborne asbestos fibers and that

this exposure occurred with sufficient frequency, regularity, and proximity

such that a fact-finder may infer that the plaintiff’s exposure was a substantial

factor in causing her harm. Rost v. Ford Motor Co., 151 A.3d 1032, 1052-

53 (Pa. 2016) (requiring (1) exposures to asbestos that satisfy the “frequency-

regularity, and proximity” test and (2) competent medical testimony

establishing substantial factor causation); Gregg v. V-J Auto Parts, Co., 943

A.2d 216, 225-26 (Pa. 2007); Krauss v. Trane U.S. Inc., 104 A.3d 556, 563

(Pa. Super. 2014) (“[A] plaintiff must present evidence to show that he inhaled

asbestos fibers shed by the specific manufacturer’s product.”) (quoting

Eckenrod v. GAF Corp., 544 A.2d 50, 52-53 (Pa. Super. 1988)).

According to Appellant, the record demonstrates that the Decedent used

Cashmere Bouquet talcum powder regularly, over a considerable period.

Appellant’s Br. at 16. In addition, Appellant references geological evidence

suggesting that the talc sources used in Appellee’s product were contaminated

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with asbestos. Id. Solely based on this evidence, Appellant asserts, there

was an adequate evidentiary foundation for Dr. Maddox to opine, with a

reasonable degree of medical certainty, that the Decedent’s use of Cashmere

Bouquet talcum powder was a substantial factor in the development of her

disease. Id. at 21-22.

The record does not support this assertion. Rather, as conceded

subsequently by Appellant, see id. at 22, Dr. Maddox premised his causation

testimony on the opinions of Ms. Raterman regarding the extent to which the

decedent was exposed to asbestos:

Q. Okay. Based upon your review of Mrs. Raterman’s report, Mrs. Brandt’s medical records, the deposition testimony by Mrs. Brandt and her sisters, do you have an opinion within a reasonable degree of medical certainty as to what caused Mrs. Brandt’s mesothelioma?

...

[Dr. Maddox:] Yes, sir. I believe that her malignant mesothelioma was caused by her cumulative asbestos exposure, including, most significantly, her exposure to asbestos from [Cashmere Bouquet] talcum powder usage.

N.T. Maddox Deposition, 1/29/19, at 93.

Further, when asked to assume that the exposure testimony of Ms.

Raterman was accurate, specifically that Ms. Brandt’s daily use of Cashmere

Bouquet resulted in exposure to asbestos at levels “likely on the order of

10,000 times background or more”, Dr. Maddox opined, “I believe that the

exposures that you have just described were the cause of her lethal malignant

mesothelioma.” Id. at 96-97; see N.T. Raterman Deposition at 181

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(quantifying the Decedent’s exposure as potentially “10,000 times background

[levels normally present in the environment]”).

Because Ms. Raterman was merely parroting another expert’s opinion,

the trial court properly excluded her exposure testimony. See supra.

Therefore, Dr. Maddox’s causation testimony was without an adequate

evidentiary foundation. Absent competent medical testimony establishing

substantial factor causation, summary judgment was appropriate in this case.

See Rost, 151 A.3d at 1052-53; Krauss, 104 A.3d at 568 (“A plaintiff cannot

survive summary judgment when mere speculation would be required for the

jury to find in plaintiff's favor.”). Accordingly, we affirm the trial court’s

decision.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/21/20

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