Products Liability Law Reporter

Ana Garrido used Johnson & Johnson baby powder from the time she was born in 1976. When she had children of her own, she used the powder during their diaper changes for several years. In 2016, she was diagnosed as having peritoneal mesothelioma. Garrido and her husband sued Johnson & Johnson and Johnson & Johnson Consumer Inc., alleging negligence, strict liability, breach of warranty, premises liability, fraud, and other claims. The defendants moved for summary judgment.

Denying the motion on the plaintiffs’ strict liability and negligence claims, the court found that the defense failed to establish a prima facie basis for summary judgment. The court rejected the argument that the plaintiffs failed to raise an issue of fact that Garrido was exposed to asbestos contamination from her use of the powder. Considering the defendants’ expert affidavits and reports, the court found that the defendants have not unequivocally established that their products could not have contributed to Garrido’s injury to warrant summary judgment on the plaintiffs’ negligence and strict liability claims. The court also rejected the defense argument that summary judgment was warranted because the specific canisters of their products that Garrido used were not tested. A plaintiff is not required to show the precise cause of damage, the court said, noting that it is sufficient to provide facts and conditions from which a defendant’s liability may be reasonably inferred.

The court also held that the plaintiffs raised issues of fact on their claim for punitive damages. Their arguments that the defendants have put profits over personal health and safety and the defendants’ continued insistence that talc lacks asbestos raises an issue of fact regarding recklessness that should be determined by a jury.

Citation: Garrido v. Avon Prods., Inc., 2018 WL 6044900 (N.Y. Sup. Ct. New York Cnty. Nov. 13, 2018).

Plaintiff counsel: AAJ member Alexandria Awad, New York City.