On February 28, 2023, the NAM filed an amicus letter requesting that the California Supreme Court review and reverse a California Court of Appeal decision affirming the trial court’s admission of unreliable expert testimony that equated talc with asbestos. In this case, the plaintiff-appellee maintained that the defendants’ cosmetic talc products were contaminated with asbestos and that her exposure thereto caused her mesothelioma. A California trial judge allowed, over defendants-petitioners’ objection, the admission of expert testimony proffered by the plaintiff-appellee that equated talc’s and asbestos’ effects on DNA--a novel theory excluded in other talc trials. After a jury returned a verdict in the plaintiff-appellee’s favor, a California Court of Appeal affirmed the trial judge’s evidentiary ruling on the ground that the appellants-petitioners did not invoke a particular case name to support their challenge. In fact, the appellants-petitioners validly challenged the admissibility of the disputed testimony as an unsupported and unreliable scientific theory not accepted within the scientific community.
In our letter brief, we argue that review is necessary to clarify how to challenge a novel scientific technique--the Court of Appeal’s holding sows confusion in how to preserve expert challenges and creates an artificial, distinct standard for evaluation of certain expert testimony that is not supported by the relevant case law or California’s evidentiary rules.
Unfortunately, on April 12, 2023, the California Supreme Court denied the petition for review.