Colgate-Palmolive headquarters in New York. Colgate-Palmolive headquarters in New York. Photo by Shutterstock.com

A defendant facing the first asbestos-related talc case in Philadelphia has asked a judge to reconsider dismissing the case in the wake of a recent ruling rejecting the testimony of two key experts for the plaintiffs.

Colgate-Palmolive filed a motion for reconsideration recently in Brandt v. Colgate-Palmolive, arguing that, because Philadelphia Court of Common Pleas Judge Idee Fox has barred the plaintiffs’ experts from testifying about some significant causation issues, there are no remaining questions of fact allowing the case to proceed past summary judgment.

“Put simply, plaintiffs’ claim that Ms. Brandt’s rare disease was caused by her use of cosmetic talcum powder—a product used safely and effectively by millions upon millions of people for over a century—are grounded in junk science that this court has properly determined cannot reach a jury under Pennsylvania law,” Kent & McBride attorney Theresa Mullaney said in Colgate-Palmolive’s nine-page motion filed Monday.

Brandt is being handled in Philadelphia’s asbestos program, and stems from claims that talcum powder plaintiff Sally Brandt used between 1954 and 1970 contained asbestos, which caused her to develop mesothelioma.

Late last month, Fox agreed with the defendants that the plaintiffs’  pathology expert, Dr. Ronald Gordon, and their geology and microscopy expert, Sean Fitzgerald, used experimental, and in one case “inherently unscientific,” methods when testing for the presence of asbestos in the talcum powder at issue. Fox determined that both experts did not pass muster under the Frye test, and granted the defendants motions to preclude their testimony.

According to Colgate-Palmolive, the plaintiffs had relied on that testimony to overcome summary judgment initially. Specifically, the plaintiffs used the testimony to argue that, since the product had not been originally designed to contain asbestos, the talcum powder Brandt used had been contaminated with asbestos, Colgate-Palmolive said.

Fitzgerald’s testimony was offered to show that Brandt had been exposed to asbestos at levels significantly higher than normal background levels, and Gordon’s testimony dealt with whether Colgate-Palmolive’s talc product was a substantial factor in causing Brandt’s mesothelioma.

According to Fox, the two may have used some generally accepted methodologies for developing their opinions, but they improperly modified those standards in ways that led to questionable results.

Fitzgerald, for example, used a “mishmash” of methodologies, but admitted that if he used talc testing methods accepted by the U.S. Food and Drug Administration he probably would not have found asbestos, Fox said. Also, when performing the research to develop his opinion on causation, Gordon used smaller than usual tissue samples, a smaller than typical control population, and extrapolated his findings, according to Fox.

In footnotes, Colgate-Palmolive further argued that the rejected testimony formed the basis for testimony of the plaintiffs’ industrial hygiene expert and expert pathologist.

“The court’s recent rulings thus warrant reconsideration of Colgate’s motion for summary judgment, and require that judgment as a matter of law be entered for Colgate on all claims,” Colgate-Palmolive said.

Mullaney and Patrick Wigle of Water Kraus & Paul, who is representing Brandt, both did not return a call seeking comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.