This case was last updated from Santa Clara County Superior Courts on 08/08/2019 at 09:15:41 (UTC).

Doyle, et al. v. Imerys Talc America, Inc., et al.

Case Summary

On 08/27/2018 Doyle filed a Personal Injury - Asbestos Product Liability lawsuit against Imerys Talc America, Inc . This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judges overseeing this case are Walsh, Brian C and Kuhnle, Thomas. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******3609

  • Filing Date:

    08/27/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Asbestos Product Liability

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judges

Walsh, Brian C

Kuhnle, Thomas

 

Party Details

Plaintiffs

Doyle, Kristie Lynn

Doyle, Daniel Christopher

Defendants

Imerys Talc America, Inc., Formerly Known as Luzenac America, Inc

Johnson & Johnson

Cyprus Mines Corporation

Imerys Talc Vermont, Inc.

Johnson & Johnson Consumer, Inc.

Not Classified By Court

Superior Court of California

Guardian Ad Litem

Yors, Jeffery Duane

Attorney/Law Firm Details

Plaintiff and Guardian Ad Litem Attorney

Rivamonte, Ian Wilfred Alido

Defendant Attorneys

Lee, Jennifer J

Lashinsky, Natalie Garcia

Oberg, Lisa Lurline

Calfo, Alexander Gerard

Vargas, Susan Victoria

Stewart, Jennifer T

Not Classified By Court Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Letter Received

Letter Received from USDC Northern District of California Docket Entries and Remand Order: Comment: Letter Received from USDC, Northern District of California, enclosing certified copies of docket entries and Remand Order

Notice

Notice CMC 8-9-19 at 10am in D5: Comment: CMC set for 8/9/19 at 10am in D5

Notice

Notice Removal to Federal Court: Comment: Notice to State Court Clerk and Adverse Parties of Removal to Federal Court

Request: Judicial Notice

Request Judicial Notice HRG 5-10-19: Comment: HRG 5/10/19

Motion: Order

Motion Severing Action HRG 5-10-19: Comment: Motion Severing Action HRG 5/10/19

Order: Proposed

Proposed Order HRG 5-10-19: Comment: HRG 5/10/19

Memorandum: Points and Authorities

Memorandum Points and Authorities HRG 5-10-19: Comment: HRG 5/10/19

Amended Complaint Filed - No Fee

FIRST AMENDED COMPLAINT: Comment: Amended Complaint - Claim Amount Unchanged (No Fee)

Statement: Case Management Conference

Joint CMC Statement: Comment: Joint Case Management Conference Statement

Order: Deeming Case Complex

Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/BCW

Proof of Service: Summons DLR (Civil)

28999 POS Cyprus Mines.pdf: Comment: Proof of Service of Summons/Complaint

Proof of Service: Summons DLR (Civil)

28861 POS Johnson & Johnson Con.pdf: Comment: Proof of Service of Summons/Complaint

Proof of Service: Summons DLR (Civil)

28861 POS Imerys Talc America.pdf: Comment: Proof of Service of Summons/Complaint

Advance jury fee (Nonrefundable)

Advance Jury Fee (Nonrefundable): Comment: Notice of Posting Jury Fees

Civil Lawsuit Notice

28247 Civil Lawsuit Notice.pdf: Comment: 1st CMC set for 11/16/18 at 10am in D1; assigned to Hon. Brian C. Walsh

Summons: Issued/Filed

Summons Issued Filed:

Civil Case Cover Sheet

28247 CCCS.pdf: Comment: COMPLEX

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

87 More Documents Available

 

Docket Entries

  • 08/09/2019
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  • Conference: Case Management - Letter Received from USDC Northern District of California Docket Entries and Remand Order: Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Comment: (3rd CMC) Asbestos/Personal Injury * Discovery and responsive pleading deadline stayed, as of 9/4/18, when the case was deemed complex. Discovery stay was lifted on 11/9/18. Responsive pleadings are due 11/30/18. Plaintiff's DOD 12/20/18. 1AC 3/11/19. Removed to Federal Court on 4/24/19, but not as to Deft Cyprus Mines Corporation. Remand Order issued 6/21/19.

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  • 08/02/2019
  • Statement: Case Management Conference - Comment: Joint Case Management Statement

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  • 06/27/2019
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  • Letter Received - Letter Received from USDC Northern District of California Docket Entries and Remand Order: Comment: Letter Received from USDC, Northern District of California, enclosing certified copies of docket entries and Remand Order

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  • 06/14/2019
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  • Conference: Case Management - Joint CMC Statement: FIRST AMENDED COMPLAINT: Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Cancel Reason: Vacated; Comment: (3rd CMC) asbestos/personal injury *** This case is not included in Talc Cases, JCCP4872. Discovery and responsive pleading deadline stayed, as of 9/4/18, when the case was deemed complex. Stay on discovery lifted on 11/9/18; responsive pleadings due 11/30/18. Recusal by Hon. Brian C. Walsh on 10/19/18. Plaintiff's DOD reported (12/20/18). Bankruptcy proceedings (Ch11) commenced on 2/13/19 as to Imerys Talc America, Inc., Imerys Talc Vermont, Inc., and Imerys Talc Canda, Inc. First Amended Complaint filed 3/11/19.

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  • 06/14/2019
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  • Notice - Notice CMC 8-9-19 at 10am in D5: Comment: CMC set for 8/9/19 at 10am in D5

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  • 05/10/2019
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  • Motion: Order - FIRST AMENDED COMPLAINT: Memorandum Points and Authorities HRG 5-10-19: Proposed Order HRG 5-10-19: Motion Severing Action HRG 5-10-19: Request Judicial Notice HRG 5-10-19: Judicial Officer: Kuhnle, Thomas; Hearing Time: 9:00 AM; Cancel Reason: Vacated; Comment: Motion by Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. to Sever Action Against Defendants Imerys Talc America, Inc. and Imerys Talc Vermont, Inc.

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  • 04/25/2019
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  • Notice - Notice Removal to Federal Court: Comment: Notice to State Court Clerk and Adverse Parties of Removal to Federal Court

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  • 04/17/2019
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  • Request: Judicial Notice - Request Judicial Notice HRG 5-10-19: Comment: HRG 5/10/19

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  • 04/17/2019
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  • Motion: Order - Motion Severing Action HRG 5-10-19: Comment: Motion Severing Action HRG 5/10/19

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  • 04/17/2019
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  • Order: Proposed - Proposed Order HRG 5-10-19: Comment: HRG 5/10/19

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101 More Docket Entries
  • 09/06/2018
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  • Proof of Service: Summons DLR (Civil) - POS.pdf: Comment: Proof of Service of Summons/Complaint

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  • 09/04/2018
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  • Order: Deeming Case Complex - Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/BCW

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  • 08/30/2018
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  • Proof of Service: Summons DLR (Civil) - 28999 POS Cyprus Mines.pdf: Comment: Proof of Service of Summons/Complaint

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  • 08/30/2018
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  • Proof of Service: Summons DLR (Civil) - 28861 POS Johnson & Johnson Con.pdf: Comment: Proof of Service of Summons/Complaint

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  • 08/30/2018
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  • Proof of Service: Summons DLR (Civil) - 28861 POS Imerys Talc America.pdf: Comment: Proof of Service of Summons/Complaint

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  • 08/27/2018
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  • Advance jury fee (Nonrefundable) - Advance Jury Fee (Nonrefundable): Comment: Notice of Posting Jury Fees

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  • 08/27/2018
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  • Civil Lawsuit Notice - 28247 Civil Lawsuit Notice.pdf: Comment: 1st CMC set for 11/16/18 at 10am in D1; assigned to Hon. Brian C. Walsh

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  • 08/27/2018
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  • Summons: Issued/Filed - Summons Issued Filed:

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  • 08/27/2018
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  • Civil Case Cover Sheet - 28247 CCCS.pdf: Comment: COMPLEX

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  • 08/27/2018
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  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

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Complaint Information

E-FILED

8/27/2018 4:05 PM

Joseph D. Satterley, Esq. (C.S.B. #286890) Clerk of Court

: Superior Court of CA jsatterley@ kazanlaw.com ' Denyse F. Clancy, Esq. (C.S.B. #55276) County of Santa Clara dclancy@ kazanlaw.com 18CV333609 Ian A. Rivamonte, Esq. (C.S.B. #232663) Reviewed By: R. Walker

irivamonte@ kazanlaw.com KAZAN, McCLAIN, SATTERLEY & GREENWOOD A Professional Law Corporation Jack London Market 55 Harrison Street, Suite 400 Oakland, California 94607 Telephone: (510) 302-1000 Facsimile: (510) 835-4913

Attorneys for Plaintiffs

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA

DANIEL CHRISTOPHER DOY LE and Case No. 18C V333609

KRISTIE LYNN DOY LE,

COMPLAINT FOR PERSONAL

Plaintiffs, INJURIES AND LOSS OF CONSORTIUM

V. DEMAND FOR JURY TRIAL

IMERYS TALC AMERICA, INC., formerly known as LUZENAC AMERICA, INC., and formerly known as CY PRUS TALC CORPORATION (sued individually and as successor-in-interest to CY PRUS MINES CORPORATION, CYPRUS INDUSTRIAL MINERALS CORPORATION, and CY PRUS WINDSOR MINERALS CORPORATION);

JOHNSON & JOHNSON;

JOHNSON & JOHNSON CONSUMER, INC. (sued individually and as successor-in-interest to

JOHNSON & JOHNSON CONSUMER

COMPANIES, INC.);

CYPRUS MINES CORPORATION;

IMERYS TALC VERMONT, INC.; and

FIRST DOE through FIFTIETH DOE,

Defendants.

GENERAL BACKGROUND AND OTHER ALLEGATIONS

L.

The Plaintiffs: Daniel Christopher Doyle is the physically injured Plaintiff. His mesothelioma was caused by asbestos exposures for which Defendants bear responsibility. Kristie Lynn Doyle is Mr. Doyle’s wife.

I1.

The Defendants: All Defendants are listed in the case caption. The true names of the DOE Defendants are unknown to Plaintiffs. Each Defendant was the agent, employee, or joint venturer of its co-defendants, and was acting in the full course and scope of the agency, employment, or joint venture.

I11.

Alternate Entities: All Defendants are individually liable for their own defective products and wrongful conduct; and some Defendants are liable for the defective products and wrongtul conduct of their alternate entities. Each such Defendant is liable for the torts of each of its alternate

entities based on the following:

. There were express or implied agreements between the companies to transfer and assume the liabilities;

. The transactions between the companies amounted to a consolidation or merger;

. The purchasing company is a mere continuation of the seller;

. The transfer of assets to the purchasing company was for the fraudulent

purpose of escaping liability for the seller’s debts;

® Strict products liability was transferred because (i) there was a virtual destruction of Plaintiff’s remedies against the original manufacturer caused by the successor’s acquisition of the business, (ii) the successor has the ability to assume the original manufacturer’s risk-spreading role, and (iii) it is fair to require the successor to assume responsibility for defective products that was a burden necessarily attached to the original manufacturer’s good will being enjoyed by the successor in the continued operation of the business; and

. The companies are alter egos because (i) there is such a unity of interest, ownership, and business operations between the companies that their separate personalities do not in reality exist, and (ii) there would be an inequitable result if the torts in question were treated as those of one company alone. The identities of the Defendants and their alternate entities are as follows:

. Defendant | AlternateEntity |

JOHNSON & JOHNSON CONSUMER, | JOHNSON & JOHNSON CONSUMER INC COMPANIES, INC.

IMERY S TALC AMERICA, INC, LUZENAC AMERICA, INC.

CYPRUS TALC CORPORATION CYPRUS MINES CORPORATION CYPRUS INDUSTRIAL MINERALS CORPORATION CYPRUS WINDSOR MINERALS CORPORATION

IV.

The Products: The Defendants and/or their predecessors have for many years, manufactured, sold, distributed, designed, formulated, developed standards for, prepared, processed, assembled, tested, listed, certified, marketed, advertised, packaged and/or labeled, and/or otherwise placed into the stream of commerce, asbestos-containing products, including talc products.

V.

The A sbestos Exposures: At all times since his birth on November 29, 1970, Mr. Doyle was exposed to asbestos through his and his family members’ personal, daily use of Johnson & Johnson’s asbestos-containing talc powder products. Mr. Doyle used Johnson & Johnson asbestos- containing talc power products in California, Florida, Ohio, and Pennsylvania. Mr. Doyle was exposed to Defendants’ asbestos in California because Defendants (1) marketed and sold their asbestos-containing products in California, and (ii) engaged in asbestos-related conduct that occurred in California. Mr. Doyle also was exposed to Defendants’ asbestos in other states because Defendants (i) marketed and sold their asbestos-containing products in those states, and (i) engaged in asbestos-related conduct in those states.

VL

Venue: Venue is proper in Santa Clara County because some of the Defendants reside in

Santa Clara County. Specifically, the principal place of business of Defendant IMERY S TALC AMERICA, INC. is in Santa Clara County. VII.

The Harm: In June 2018, Mr. Doyle was diagnosed with epithelial/sarcomatoid mesothelioma, an incurable and inevitably fatal cancer that stems from his exposures to asbestos. The mesothelioma also has caused, and will cause, Mr. Doyle to experience physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, emotional distress, and other similar harm. The mesothelioma has caused economic loss, including loss of income and loss of earning capacity. And the mesothelioma will continue to inflict these harms on Mr. Doyle in the future, ceasing only when it causes his untimely death.

Mr. Doyle’s injuries have caused, and will cause, Mrs. Doyle to experience loss of consortium. Mrs. Doyle’s harm includes the loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support, sexual relations, and other similar harm.

Plaintiffs rely on the liability theories described below.

FIRST CAUSE OF ACTION FOR STRICT PRODUCTS LIABILITY

L.

Design Defect: Defendants, and DOE Defendants 1-50, have for many years, manufactured, sold, distributed, designed, formulated, developed standards for, prepared, processed, assembled, tested, listed, certified, marketed, advertised, packaged and/or labeled, and/or otherwise placed into the stream of commerce, asbestos-containing talc powder products. First, these Defendants’ products were defective and unsafe for their intended purpose and foreseeable use in that when used, handled, mixed, or otherwise disturbed, said products would result in the release, and therefore inhalation of, hazardous and dangerous asbestos fibers by exposed persons, including Mr. Doyle. Second, each product did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way, because each product caused hazardous asbestos to become airborne. Third, Mr. Doyle developed mesothelioma. Fourth, each product’s failure to perform safely was a

substantial factor contributing to Mr. Doyle’s risk of developing mesothelioma. I1.

Failure-to-Warn Defect: The Defendants, and DOE Defendants 1-50, are strictly liable for their products’ failure-to-warm defects. First, these Defendants and/or their predecessors have for many years, manufactured, sold, distributed, designed, formulated, developed standards for, prepared, processed, assembled, tested, listed, certified, marketed, advertised, packaged and/or labeled, and/or otherwise placed into the stream of commerce, ashestos-containing talc powder products. Second, each product had potential risks that were known or knowable in light of the scientific and medical knowledge that was generally accepted in the scientific community at the time of design, manufacture, label, distribution, and sale. Third, the potential risks presented a substantial danger when each product was used or misused in an intended or reasonably foreseeable way, because each product caused hazardous asbestos to become airborne. Fourth, ordinary consumers would not have recognized the potential risks. Fifth, these Defendants failed to adequately wam or instruct of the potential risks. Sixth, Mr. Doyle developed mesothelioma. Seventh, the lack of sufficient warnings or instructions was a substantial factor contributing to Mr. Doyle’s risk of developing mesothelioma.

I11.

Knowledge of A sbestos Hazards: The following facts are illustrative, but not exhaustive, of the evolution of the knowledge of the health hazards of asbestos and what was known and knowable to Defendants. Health hazards from asbestos exposure were identified in the 1890s. During this time, the Lady Inspector of Factories in Great Britain noted that individuals working with asbestos were suffering various lung injuries.

Defendants since the early 1900s possessed medical and scientific data that raised concerns regarding the presence of asbestos in talcum powder and that demonstrated the existence of health hazards to those exposed to asbestos-containing talcum powder products. Talc is a hydrous magnesium silicate, an inorganic material that is mined from the earth. Talc is used in the manufacture goods, such as paper, plastic, paint and coatings, rubber, food, electric cable, ceramics, and cosmetics. In its loose form and as used in consumer powder products, talc is known

as “talcum powder.” Geologists and mining companies, including Defendants, have long known that the deposits in the earth that are associated with talc are also associated with the formation of asbestos. A sbestos is a commercial and legal term, rather than a geological or scientific term, referring to six now-regulated magnesium silicate minerals that occur in fibrous form, including the serpentine mineral chrysotile, and the amphibole minerals actinolite, anthophyllite, tremolite, amosite, and crocidolite. The United States Geological Survey on Commercial Talc production in 1965, as well as those dating back to the 1800s in the United States, note the presence of tremolite, anthophyllite, and chrysotile commonly among those minerals found within talc deposits.

As early as the 1920s, the term “asbestosis™ was used to describe pulmonary fibrosis caused by asbestos exposure. Case reports in Great Britain and the United States detailed asbestosis in various workers. By 1929, lawsuits for disability related to exposure to asbestos were filed against Johns Manville.

In the late 1930s, case reports were published addressing the relationship between asbestos and cancer. In 1931, the United Kingdom allowed workers to receive compensation for asbestosis. In 1936, California’s Division of Industrial Safety 1ssued Safety Orders establishing the standard of care for work with asbestos. The same year, the State of Illinois enacted legislation recognizing asbestosis as a compensable occupational disease under its O ccupational Disease A ct.

In March of 1933, Waldemar C. Dreesen of the United States Public Health Service reported to the National Safety Council the results of a study conducted among tremolite, talc, and slate workers. The study indicated that the talc was a hydrous calcium magnesium silicate, being 45 percent talc and 45 percent tremolite, and the National Safety Council stated, ““[t]he results of the study seemed to indicate a relationship between the amount of dust inhaled and the effect of this dust on the lungs of the workers.” As early as 1934, the National Safety Council was publishing information stating that “a cause of severe pulmonary injury is asbestos, a silicate of magnesium.” In the September 1935 issue of National Safety News, an article entitled No Halfway Measures in Dust Control by Arthur S. Johnson reported lowered lung capacity resulting from “asbestosis” and ““similar conditions” that developed “from exposure to excess of many mineral

dusts relatively low in free silica content.” The article further noted that claims for disabilities from workers who alleged exposure to “clay, talc, emery, and carborundum dusts” had “claims prosecuted successfully.” The article concluded that “[i]n the absence of adequate diagnoses, occupational histories and a more satistactory method of adjudicating claims than prosecution at common law, we must conclude that it is necessary to find a practical method for controlling all mineral dusts.”

By the 1940s, asbestos carcinogenicity was noted in reviews in fields of industrial medicine, cancer research, and pneumoconiosis. In 1946, the American Conference of Governmental Industrial Hygienists established a maximum allowable concentration for occupational exposure.

During the 1940s and 1950s, asbestos hazards were discussed in popular magazines, including Scientific American (January 1949) and Newsweek (May 15, 1950), as well as the Encyclopedia Britannica (1952). On April 7, 1959, the Los Angeles Times and Wall Street Journal reported that California health officials did additional research linking asbestos with cancer. Following a number of subsequent reportsTimes, Paul Brodeur published a series of articles in the New Y orker.

In addition, beginning in the 1940s and 1950s, it was recognized that individuals who worked with asbestos materials, as well as those who did not work directly with asbestos products but only had relatively brief or intermittent exposures to asbestos products, could develop fatal asbestos diseases.

In 1955, Richard Doll published a study linking asbestos to lung cancer.

In 1960, Chris Wagner published a study linking asbestos to mesothelioma.

In the early 1960s, Dr. Irving Selikoff engaged in studies of groups of asbestos workers. By 1965, he had conducted various studies, published several articles, conducted special scientific symposia, been interviewedTimes, and organized the international conference on the “Biological Effects of Asbestos” under the auspices of the renowned New York Academy of Sciences. The results of these presentations were published in Volume 132 of the Annalscademy of Sciences published in 1965.

In 1968, a study presented at the A merican Industrial Hygiene Conference and published in the American Industrial Hygiene Association Journal concluded that “[a]ll of the 22 talcum products analyzed have a ... fiber content ... averaging 19%. The fibrous material was predominantly talc but contained minor amounts of tremolite, anthophyllite, and chrysotile as these are often present in fibrous talc mineral deposits ... Unknown significant amounts of such materials in products that may be used without precautions may create an unsuspected problem.” [Cralley, L.J., et al., Fibrous and Mineral Content of Cosmetic Talcum Products, 29 Am. Ind. Hyg. Assoc. J. 350 (1968).]

In 1969, product-liability lawsuits were brought against asbestos manufacturers. Under the Walsh Healy Act, federal contractors with contracts of more than $10,000 were required to adhere a workplace standard of no more than 12 fibers per cubic centimeter of air. In 1970, OSHA established the first Federal guidelines for workplace asbestos exposure, which took effect in 1971. In 1972, the American Conference of Governmental Industrial Hygienists listed asbestos as a carcinogen.

A 1976 follow-up study conducted by researchers at Mount Sinai Hospital in New Y ork concluded that “[t]he presence in these products of asbestiform anthophyllite and tremolite, chrysotile, and quartz indicates the need for a regulatory standard for cosmetic talc...We also recommend that evaluation be made to determine the possible health hazards associated with the use of these products.” [Rohl, A.N., et al., Consumer Talcums and Powders: Mineral and Chemical Characterization, 2 J. Toxicol. Environ. Health 255 (1976).] The results of the Mount Sinai study were soon picked up and reported by both the New Y ork Times and the W ashington Post that same year. The study and subsequent newspaper articles listed explicitly popular consumer cosmetic talcum powders as containing high percentages of asbestos.

In the early 1970s, the U.S. Food and Drug A dministration began an inquiry into whether to regulate and require warnings on consumer talcum powder products. D efendants, who were part of an exclusive lobbying and advocacy group representing companies engaged in the cosmetic products industry, repeatedly conspired and worked in concert to block efforts to label and wam consumers regarding the dangers associated with cosmetic talcum powder products.

Several reports, studies, and guidelines published as early as the 1930s, including California’s Dust, Fumes, Vapors, and Gases Safety Orders, all recognized that asbestos is a dust which creates health hazards, and that certain precautions are required to mitigate human exposure to dust. Such measures include, but are not limited to, using water to suppress the dust at its source, as well as providing those who might be exposed to dust with adequate ventilation, showers, and changing facilities. These same measures that were recommended to protect workers from asbestosis in the 1930s would also have substantially reduced the risk that bystanders, household members, and other persons would contract mesothelioma from inhaling asbestos- containing dust that those who worked with and around asbestos and asbestos-containing products carried into their households on their person and personal effects. Defendants, and each of them, knew or should have known that anyone, including household members of those who used asbestos-containing products were at risk of developing an asbestos-related disease after inhaling dust from such asbestos-containing products.

All Defendants failed to place any warning on their talc and talcum powder products or ever disclose the fact that these products contained asbestos at any point, up to and including present day, despite the clear hazard and direct information that their products did contain asbestos.

SECOND CAUSE OF ACTION FOR NEGLIGENCE

L.

General Negligence: All Defendants, and DOE Defendants 1-50, are liable for their general negligence. First, Defendants failed to use reasonable care to prevent harm to others, because they caused hazardous asbestos to become airborne. Second, Defendants unreasonably acted and failed to act. They acted in ways that a reasonably careful person would not do in the same situation, and failed to act in ways that a reasonably careful person would do in the same situation. Third, Mr. Doyle developed mesothelioma. Fourth, each Defendant’s general negligence was a substantial factor contributing to Mr. Doyle’s risk of developing mesothelioma.

I1.

Negligent Design, Manufacture, Supply, Testing, Packaging, and Labeling of

Products: The Defendants, and DOE Defendants 1-50, are liable for their negligent design,

manufacture, marketing, supply, testing, packaging, and labeling of asbestos-containing talc powder products. First, these Defendants designed, manufactured, sold, distributed, formulated, developed standards for, prepared, processed, assembled, tested, listed, certified, marketed, advertised, packaged and/or labeled, and/or otherwise placed into the stream of commerce, asbestos-containing talc powder products. Second, these Defendants were negligent in manufacturing, selling, distributing, developing standards for, processing, assembling, testing, certifying, marketing, advertising, packaging and/or labeling, and/or otherwise placing into the stream of commerce, asbestos-containing talc powder products because they caused hazardous asbestos to become airborne. They failed to use the amount of care that a reasonably careful person would use in similar circumstances to avoid exposing others to a foreseeable risk of harm. Third, Mr. Doyle developed mesothelioma. Fourth, each Defendant’s negligence was a substantial factor contributing to Mr. Doyle’s risk of developing mesothelioma.

I11.

Negligent Failure to Warn about Products: The Defendants, and DOE Defendants 1-50, are liable for their negligent failure to warn about their products. First, these Defendants designed, manufactured, marketed, distributed, packaged, labeled, and sold ashestos-containing talc powder products. Second, these D efendants knew or reasonably should have known that each product was dangerous or was likely to be dangerous when used or misused in a reasonably foreseeable manner, because each product caused hazardous asbestos to become airborne. Third, these Defendants knew or reasonably should have known that users would not realize the danger. Fourth, these Defendants failed to adequately warn of the danger or instruct on the safe use of each product. Fifth, a reasonably careful person under the same or similar circumstances would have warned of the danger or instructed on the safe use of each product. Sixth, Mr. Doyle developed mesothelioma. Seventh, each Defendant’s negligent failure to warn or instruct was a substantial factor contributing to Mr. Doyle’s risk of developing mesothelioma.

IV.

Negligent Failure to Recall and Retrofit Products: The Defendants, and DOE Defendants 1-50, are liable for their negligent failure to recall and retrofit their products. First, these Defendants designed, manufactured, marketed, distributed, packaged, labeled, and sold asbestos-containing talc powder products. Second, these D efendants knew or reasonably should have known that each product was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner, because each product caused hazardous asbestos to become airborne. Third, these D efendants became aware of this defect after each product was sold. Fourth, these Defendants failed to recall and retrofit each product. Fifth, a reasonably careful person under the same or similar circumstances would have recalled and retrofitted each product. Sixth, Mr. Doyle developed mesothelioma. Seventh, each Defendant’s negligent failure to recall and retrofit each product was a substantial factor contributing to Mr. Doyle’s risk of developing mesothelioma.

THIRD CAUSE OF ACTION FOR FRAUD

L.

Fraudulent Misrepresentation: All Defendants, and DOE Defendants 1-50, are liable for their fraudulent misrepresentations.

First, each of these Defendants, via its employees, agents, advertisements, or any other authorized person or document, represented that certain facts were true when they were not. The specific identities of these employees, agents, advertisements, or any other authorized person or document are maintained in Defendants’ records. Such records remain in the exclusive control of Defendants pursuant to Defendants’ respective document-retention policies. W hile Plaintiffs do not currently know the specific advertisements or names of the employees, agents, or any other authorized person who made the representations, they will have access to this information once discovery has commenced and will be able to specifically name the advertisement as well as the employee, agent, or any other authorized person.

Second, Defendants represented that the products they manufactured, supplied, or specified for use were not hazardous to humans. These representations were made before and during the years that Mr. Doyle purchased and was exposed to asbestos from Defendants’ talc powder products. Such representations were made either directly to Mr. Doyle, or to a third party intending and reasonably expecting that the substances of these misrepresentations would be

repeated to Mr. Doyle. Third, Defendants knew that the representations were false when they made them, or they made the representations recklessly and without regard for their truth.

Fourth, Defendants intended that Mr. Doyle and/or the same class of persons as Mr. Doyle rely on the representations or their substance.

Fifth, Mr. Doyle reasonably relied on Defendants’ representations or the substance of these representations.

Sixth, Mr. Doyle developed mesothelioma.

Seventh, Mr. Doyle’s reliance on these representations was a substantial factor contributing to Mr. Doyle’s risk of developing mesothelioma.

I1.

Fraudulent C oncealment (Nondisclosure): All Defendants, and DOE Defendants 1-50, are liable for their fraudulent concealment (nondisclosure).

First, each of these Defendants made affirmative statements that were so misleading (e.g. misleading “half-truths’) that they gave rise to a fraud cause of action even in the absence of a specific relationship or transaction as between Defendants and Mr. Doyle. Specifically, Defendants stated that their products could be used safely while concealing they were in fact lethal because they contained and released asbestos fibers.

Second, Defendants (i) had exclusive knowledge of material facts not known to Mr. Doyle (as set forth above), (ii) actively concealed these material facts from Mr. Doyle, (iii) made partial representations but also suppressed material facts, as set forth above, and (iv) made factual representations, but did not disclose facts which materially qualified those representations. Such nondisclosures included Defendants representing their products as safe when used as intendedparticular purpose for which they were marketed, while not disclosing the facts that these products contained asbestos that would become airbome during the intended and foreseeable use of the products, rendering them dangerous and unfit for their intended purpose.

Third, each Defendant entered into a relationship and/or a transaction with Mr. Doyle sufficient to give rise to a duty to disclose. For example, Mr. Doyle used or otherwise encountered

Defendants’ products that were purchased either directly from Defendants, Defendants’ authorized dealer or supplier, or any other entity upon which Defendants derived a direct monetary benefit directly from Mr. Doyle’s purchase and use of the products. As for another example, Defendants directly advertised their products to those in California and elsewhere, as a symbol of freshness, cleanliness, and purity. Defendants advertised and marketed this product as the beacon of “freshness” and “comfort”, eliminating friction on the skin, absorbing “excess wetness” helping keep skin feeling dry and comfortable, and “clinically proven gentle and mild.” The Defendants compelled men and women through advertisements to dust themselves with this product to mask odors. Defendants derived direct monetary benefit from these individuals’ use of these products because Mr. Doyle decided to use or purchase Defendants’ products.

Fourth, Mr. Doyle did not know of the concealed facts.

Fifth, Defendants intended to deceive Mr. Doyle by concealing the facts, and/or by making certain representations without disclosing additional facts that would have materially qualified those representations.

Sixth, had the omitted information been disclosed, Mr. Doyle reasonably would have behaved differently.

Seventh, Mr. Doyle developed mesothelioma.

Eighth, each Defendant’s concealment was a substantial factor contributing to Mr. Doyle’s risk of developing mesothelioma.

I11.

Conspiracy to Commit Fraudulent Misrepresentation: Plaintiffs hereby incorporate by reference the allegations of Paragraph I of this Third Cause of A ction as if fully stated herein.

All Defendants, and DOE Defendants 1-50, are liable for their conspiracy to commit fraudulent misrepresentation. First, Defendants were aware that their conspirators, which included all co-Defendants and others, planned to commit fraudulent misrepresentation against Mr. Doyle. Second, Defendants agreed with their conspirators and intended that the fraudulent misrepresentation be committed. Third, Mr. Doyle developed mesothelioma. Fourth, each Defendant’s participation in the conspiracy was a substantial factor contributing to Mr. Doyle’s

risk of developing mesothelioma. IV.

Conspiracy to Commit Fraudulent Concealment (Nondisclosure): Plaintiffs hereby incorporate by reference the allegations of Paragraph II of this Third Cause of Action as if fully stated herein.

All Defendants, and DOE Defendants 1-50, are liable for their conspiracy to commit fraudulent concealment. First, D efendants were aware that their conspirators, which included all co-Defendants and others, planned to commit fraudulent concealment against Mr. Doyle. Second, Defendants agreed with their conspirators and intended that the fraudulent concealment be committed. Third, Mr. Doyle developed mesothelioma. Fourth, each Defendant’s participation in the conspiracy was a substantial factor contributing to Mr. Doyle’s risk of developing mesothelioma.

V.

Knowledge of Hazards: At all times pertinent hereto, all Defendants, including DOE Defendants 1-50, owed Mr. Doyle a duty, as provided for in Civil Code sections 1708, 1709, and 1710, to abstain from injuring his person, property, or rights. In violation of that duty, these Defendants, and each of them, did do the acts and omissions, when a duty to act was imposed, as set forth herein, thereby proximately causing injury to Mr. Doyle. Such acts and omissions consisted of acts falling within Civil Code section 1710, and more specifically were (i) suggestions of fact which were not true and which the Defendants did not believe to be true, (ii) assertions of fact of that which was not true, which the D efendants had no reasonable ground for believing it to be true, and (iii) the suppression of facts when a duty existed to disclose it, all as are more fully set forth herein, and the violation of which as to any one such item gave rise to a cause of action for violation of Mr. Doyle’s rights as provided for in the aforementioned code sections.

Since 1924, all of the Defendants have known and possessed of the true facts (consisting of medical and scientific data and other knowledge) which clearly indicated that the materials and products referred to herein were and are hazardous to the health and safety of Mr. Doyle, and others similarly situated. Defendants engaged in the following acts and omissions:

(a) Did not label any of the aforementioned asbestos-containing materials and 1672776.1

products as to the hazards of such materials and products to the health and safety of Mr. Doyle, and others in their position using these products when the knowledge of such hazards was existing and known to Defendants, and each of them, since 1924. By not labeling such materials as to their said hazards, Defendants, and each of them, caused to be suggested as a fact to Mr. Doyle that it was safe for his to use such materials, when in fact these things were not true and Defendants did not believe them to be true.

Suppressed information relating to the danger of using the aforementioned materials by requesting the suppression of information to Mr. Doyle, and the general public concerning the dangerous nature of the aforementioned materials to all persons, including users, bystanders and household members, by not allowing such information to be disseminated in a manner which would give general notice to the public and knowledge of the hazardous nature thereof when Defendants were bound to disclose such information.

Sold the aforementioned products and materials to the public, including

Mr. Doyle, and others in California and other states without advising them of the dangers of use of such materials and to those persons’ household members, when D efendants knew of such dangers, as set forth herein and above, and had a duty to disclose such dangers. Thus, Defendants caused to be positively asserted to Mr. Doyle, and the public that which was not true and which Defendants had no reasonable ground for believing it to be true, in a manner not warranted by the information possessed by said Defendants, and each of them, of that which was and is not true, to wit, that it was safe for Mr. Doyle to use such materials and that it did not pose a risk of harm.

Suppressed and continue to suppress from everyone, including Mr. Doyle, medical, scientific data, and knowledge of the accurate results of studies including, but not limited to, Waldemar C. Dreesen of the United States Public Health Service’s 1933 report to the National Safety Council the results of a study conducted among tremolite, talc and slate workers. The study indicated that the talc was a hydrous calcium magnesium silicate, being 45 percent talc and 45 percent tremolite, and the National Safety Council stated “The results of the study seemed to indicate a relationship between the amount of dust inhaled and the effect of this dust on the lungs of the workers.” As early as 1934, the National Safety Council was publishing information stating that “a cause of severe pulmonary injury is asbestos, a silicate of magnesium.” In the September 1935 1ssue of National Safety News, an article entitled No Halfway Measures in Dust Control by Arthur S. Johnson reported lowered lung capacity resulting from “asbestosis” and “similar conditions™ that developed “from exposure to excess of many mineral dusts relatively low in free silica content.” The article further noted that claims for disabilities from workers who alleged exposure to “clay, talc, emery, and carborundum dusts had “claims prosecuted successfully.” The article concluded that “[1]n the absence of adequate diagnoses, occupational histories and a more satisfactory method of adjudicating claims than prosecution at common law, we must conclude 1(:ihat it is necessary to find a practical method for controlling all mineral usts.”

Belonged to, participated in, and financially supported the Industrial Hygiene Foundation, A shestos Information A ssociation, the A sbestos Textile Institute (ATI), and other industry organizations, including the

15 1672776.1

Cosmetic, Toiletry, and Fragrance A ssociation (now known as the Personal Care Products Council), which actively promoted the suppression of information of danger to users of the aforementioned products and materials for and on behalf of Defendants, and each of them, thereby misleading

Mr. Doyle to their prejudice through the suggestions and deceptions set forth above in this cause of action. ATI’s Dust Control Committee, which changed its name to the Air Hygiene Committee of ATI, was specifically enjoined to study the subject of dust control; discussions in such committee were held many times of (i) the dangers inherent in ashestos and the dangers which arise from the lack of control of dust and (ii) the suppression of such information from 1946 to a date unknown to plaintiff at this time.

Knew and possessed medical and scientific information of the connection between inhalation of asbestos fibers and asbestosis in 1930 with the study of mine and mill workers at the Thetford asbestos mines in Quebec, Canada, and the study of workers at Raybestos-Manhattan plants in Manheim and Charleston, South Carolina. This information was disseminated through the ATT and other industry organizations to all other Defendants, and each of them, herein. Between 1942 and 1950, Defendants, and each of them, knew and possessed medical and scientific information of the connection between inhalation of asbestos fibers and cancer, which information was disseminated through the ATI and other industry organizations to all other Defendants herein. Thereby, Defendants suggested as fact that which is not true and disseminated other facts likely to and did mislead Mr. Doyle for want of communication of true facts, which consisted of the previously described medical and scientific data and other knowledge by not giving Mr. Doyle the true facts concerning such knowledge of danger, when Defendants were bound to disclose it.

Failed to warn Mr. Doyle and others similarly situated regarding the nature of Defendants’ talcum products. In 1968, a study presented at the A merican Industrial Hygiene Conference and published in the American Industrial Hygiene Association Journal concluded that “[a]ll of the 22 talcum products analyzed have a...fiber content...averaging 19%. The fibrous material was predominantly talc but contained minor amounts of tremolite, anthophyllite, and chrysotile as these are often present in fibrous talc mineral deposits...Unknown significant amounts of such materials in products that may be used without precautions may create an unsuspected problem.” [Cralley, L.J., etal., Fibrous and Mineral Content of Cosmetic Talcum Products, 29 Am. Ind. Hyg. Assoc. J. 350 (1968).] Defendants failed to warn Mr. Doyle and others similarly situated that their talcum products are, among other things, dangerous when breathed and causes pathological effects without noticeable trauma, although D efendants possessed knowledge that such material was dangerous and a threat to the health of persons coming into contact therewith and under a duty to disclose it.

Concealed from Mr. Doyle, and others similarly situated the true nature of their exposure, the fact that Defendants knew that exposure to respirable asbestos meant that Mr. Doyle would inhale this asbestos, significantly increasing his risk of developing asbestosis, lung cancer, and mesothelioma; that Mr. Doyle that had in fact been exposed to respirable asbestos; that the materials to which Mr. Doyle was exposed would cause pathological effects in the human body without noticeable or perceptible trauma to warn him of

16 injury; and D efendants engaged in these acts and omissions while under a duty to and bound to disclose this information.

(1) Failed to provide information to the public at large and buyers, users and physicians of Mr. Doyle for the purpose of conducting physical examinations of anyone whom came in contact with asbestos as to the true nature of the hazards of asbestos, in order for such physicians to diagnose, and treat individuals coming into contact with asbestos, in that the materials to which Mr. Doyle had been exposed would cause pathological effects without noticeable trauma, even though D efendants were under a duty to supply such information and such failure was and is likely to mislead persons including Mr. Doyle as to the dangers and risk of harm to which they were exposed.

) Affirmatively misrepresented that asbestos-containing products were safe to use and handle, when D efendants knew such statements were false when made, or made said false statements recklessly and without regard for whether the statements were true.

Each of the foregoing acts, suggestions, assertions, and forbearances to act when a duty existed to act, the said Defendants, and each of them, having such knowledge, knowing Mr. Doyle did not have such knowledge and would breathe such material innocently, was done falsely and fraudulently and with full intent to induce Mr. Doyle to work in a dangerous environment and to cause them to remain unaware of the true facts, all in violation of Civil Code section 1710.

BASIS FOR PUNITIVE DAMAGES

L.

Malice, Oppression, and Fraud: Plaintiffs hereby incorporate by reference the allegations of all causes of action as if fully stated herein. All Defendants, and DOE Defendants 1-50, are liable for punitive damages because they engaged in the conduct that caused Mr. Doyle’s harm with malice, oppression, or fraud.

First, these Defendants committed malice in that they acted with intent to harm when they caused Mr. Doyle’s asbestos exposures, and because their conduct was despicable and was done with a willful and knowing disregard of the rights and safety of others.

Second, these Defendants committed oppression in that their conduct was despicable and subjected Mr. Doyle to cruel and unjust hardship in knowing disregard of his rights.

Third, the Defendants committed fraud in that they intentionally and fraudulently concealed and misrepresented material facts and did so intending to harm Mr. Doyle and with

reckless disregard for whether their fraud would harm Mr. Doyle.

These Defendants’ conduct constituting malice, oppression, and fraud was committed by,

authorized by, and adopted by one or more officers, directors, and managing agents within the

corporate hierarchy of each Defendant, who acted on behalf of each Defendant.

PRAYER FOR DAMAGES

I.

Plaintiffs pray for judgment against all Defendants for:

1. All economic and non-economic compensatory damages in excesé of $25,000; 2. Punitive damages according to proof; 3. Pre- and post-judgment interest; 4, Costs of suit; and 5. Such other reljef as is fair, just, and equitable.

DEMAND FOR JURY TRIAL

L.

Plaintiffs hereby demand a trial by jury on all issues so triable.

DATED: August 27, 2018

1672776.1

KAZAN, McCLAIN, SATTERLEY & GREENWOOD A Professional Law Corporation

By:

Joseph D. Satterley Denyse F. Clancy

Attorneys for Plaintiffs