Evidence of the Absense of Evidence

LAOSD Asbestos Cases, No.B313982 (D2d8 Jan. 23, 2023)

Plaintiff in this case says she got mesotheloma because, 50 years ago, she used Avon talcum powder contaminated by asbestos. Avon moved for summary judgment. In support of its motion, Avon put in a declaration from an employee attesting that back in the ’70s, Avon had a strict testing regimen in place to ensure that there was no asbestos in the power. It attached some very old documents that purportedly support that fact. The employee, however, had only joined the company in the ’90s, so her testimony clearly was not based on her personal knowledge. Plaintiff objected on that ground but her objection was overruled. The trial court granted SJ on the ground that plaintiff had no evidence to show that the powder was tainted by asbestos.

As the Court of Appeal points out: “This case highlights the difficulties both sides encounter when litigating a latent injury possibly caused by exposure to a
toxic substance 50 years ago.” Nobody has a sample of the powder plaintiff used. And it is highly likely that nobody with personal knowledge of Avon’s talc handling practices is around anymore to testify. 

The situation is compounded by the fact that California’s summary judgment statute, Code of Civil Procedure § 437c, as been interpreted to require a moving evidence to come forward with evidence of no evidence before the burden shifts to a non-moving plaintiff to show a disputed fact. Unlike under the federal Celotex standard, the moving defendant can’t just “point” to the absence of evidence on an element in an argument.

Avon tries to fill the gap in two ways. 

First, through the declaration of the employee, who was previously deposed as its PMQ. Avon admits that she lacked personal knowledge regarding what Avon was doing with talc in the ’70s. But it says she is a “corporate representative,” who familiarized herself with the company’s collective knowledge on the issue by reviewing documents and interviewing other company employees.

The problem is that there’s no corporate representative exception to Evidence Code § 702’s personal knowledge requirement.

Avon argues that it’s unfair that a plaintiff can demand that Avon produce a person most qualified to testify as to the company’s knowledge at a deposition under Code of Civil Procedure § 2025.230. It can then use that testimony against the company as a party admission. Evidence Code § 1220. And since the requirement of personal knowledge doesn’t apply to party admissions an individual plaintiff has access to a source of evidence that a corporate plaintiff lacks. Thus, says Avon, due process requires courts to permit a corporation to come forward with functionally equivalent testimony.

But the PMQ rule is a rule of discovery not evidence. Indeed, the Court views Avon’s argument as a demand for special treatment for corporate parties untethered to the Evidence Code. It characterizes the argument as claiming that once a party takes a corporation’s PMQ depo, the “corporate entity is no longer bound by the rules of evidence at any subsequent trial or hearing.” That proposition, according to the Court, is “simply nonsense.”

The Court further notes that the exhibits to the declaration—various reports, company materials and a 1992 statement of an Avon employee denying that any of its products were contaminated with asbestos—are all hearsay without exception. The trial court thus abused its discretion in admitting the declaration.

The second way Avon tries to meet its burden is by showing that plaintiff gave junky responses to discovery demanding that she identify any evidence of contamination. But the Court finds that Avon failed to adequately develop this argument in the trial court. The Court notes that there was some apparent discovery dispute at the time of the SJ hearing. Given that dispute, “it would be
unreasonable to infer a lack of evidence from any missing, devoid or incomplete responses. Without more information, it seems equally likely that any deficient responses were due to the then-ongoing dispute.”

The Court further faults Avon for relying on a case—Andrews v. Foster Wheeler LLC 138 Cal. App. 4th 96, 107—that it did not cite in its summary judgment papers. Andrews stands for the proposition that boilerplate answers to interrogatory responses that just restate plaintiff’s allegations or provide laundry lists of people and documents are enough to meet a moving defendant’s initial burden on summary judgment. Because Avon didn’t make this “laundry list” argument in the trial court, the Court considers it forfeited.

Finally, the Court also says that Avon didn’t appropriately develop the argument on appeal, because it “summarized what appears to be more than 20 pages of discovery responses in less than a paragraph, then complains the responses lack detail.” According to the Court “[m]ore than this is required.”

Reversed.

Ok. A couple of things here.

First, the rule that puts an evidentiary burden on a moving defendant to come forward with evidence of a negative is a bad rule. Justice Mosk’s opinion in Aguilar says that § 437c(b)’s reference to the motion being supported by various types of evidence anticipates an affirmative evidentiary burden on the moving party. That is not necessarily wrong as a matter of statutory interpretation, although it depends on an inference that is certainly not the only one that could be drawn. In particular (b) isn’t specific to plaintiff or defendant-side motions.

But regardless, it is a rule that serves no purpose other than to trip up the moving party and avoid getting to the fundamental question of whether there are disputes of fact that need to go to trial. It is often employed—as is the case here—to effectively relieve the plaintiff of the burden of proof at the summary judgment phase. And because the main way to satisfy it is with answers to written discovery, it encourages discovery gamesmanship in preparing evasive answers.

Second, although I sympathize with Avon’s difficulty in proving its collective corporate knowledge of events that occurred 50 years ago, the analysis on the evidentiary issue seems basically right. There’s nothing in the Evidence Code that lets a company have witness investigate and the supply what are, in essence, opinions about the company's knowledge. 

So in this situation, you probably need to focus on ways to find hearsay exceptions for underlying source material. There is, for instance, an exception for “ancient writings”—writings that are more than thirty years old. Evidence Code § 1331. Or consider very robust submissions of evidence to support the business records exception, which don’t seem to have been submitted in this case. Or perhaps defendants can develop theories that might support expert testimony on the topic of corporate history, since expert testimony is carved out from § 702. Although that seems like a stretch, if we’re going to permit testimony about grammar under the auspices of science, who can say?

But these things aren’t always going to be enough to carry a defendant’s burden. So what is really vital for defendants is setting up the fact-free discovery responses argument. RFA that there isn’t evidence of each essential element of the claim and accompany that with Form Interrogatory 17.1. Litigate crappy responses, even if it seems like a bad use of resources. This is the one time when written discovery can actually make a difference.

Third, it feels like the Court here really went out of its way to come to the conclusion that Avon didn’t adequately develop this argument. It is, to say the least, unusual for a court to spend multiple pages in a whole separately titled section of an opinion to find that an argument has been forfeited. 

For what it’s worth, I took a look at Avon’s Respondent’s Brief. While it doesn’t repeat the responses in haec verba, it does contain a not insubstantial discussion (more than a partial paragraph) of the responses to key interrogatories and RFPs. It isn’t the kind of footnote or one sentence argument that usually gets forfeited. And, while I don’t want to pay ten bucks to download Avon’s SJ brief, if it is resembles what’s described in its appellate briefing, it seems substantial enough to avoid a forfeiture.

But it is the inferences that the Court draws from the existence of a discovery dispute that strike me as pretty inappropriate. The Code has a whole procedure for a non-moving party get more time to obtain evidence. See § 437c(h)-(j). If a discovery dispute deprived the Plaintiff of evidence to add to its responses, it could have availed itself of the procedure. But there’s no evidence that Plaintiff followed that procedure here. For the Court to simply assume that Plaintiff’s responses were inadequate because of the pending dispute effectively excuses the Plaintiff’s failure to follow the correct procedure. As the Court says faulting Avon, it is not the Court’s job to develop a party’s arguments or to search the evidence to find deficiencies. That’s just what the Court did here.