GODINA, et al. vs MERCK & CO., INC., et al.

AND SCHERING-P..., et al. 07/21/2026 Hearing on Motion for Summary Judgment filed by CVS PHARMACY, INC. (Defendant) CRS# 417431433075 in Department 18 (§ 437c(p)(2); see also Collin v. CalPortland Co. (2014) 228 Cal. App. 4th 582, 587 (“A defendant moving for . . . summary adjudication need not conclusively negate an element of the plaintiff’s cause of action. Instead, the defendant may show through factually devoid discovery responses that the plaintiff does not possess and cannot reasonably obtain needed evidence.”).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action . . . .

The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action . . . .” (Cal. Civ. Proc. Code § 437c(p)(2).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (§ 437c(c).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action . . . [or] a claim for damages . . . .” (§ 437c(f)(1).)

III.

Discussion

A. Motion for Summary Judgment “In the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953, 982–83.)

The Court denies the motion for summary judgment.

1. Threshold Exposure Defendant seeks to meet its burden of production by pointing to Plaintiffs’ purportedly factually devoid responses to Defendant’s comprehensive discovery requests. The court finds that the special interrogatories (SROGS) propounded on Plaintiffs are sufficiently comprehensive in that they request all facts pertaining to Defendant’s alleged liability and Ms. Godina’s exposure to talc products purchased at Defendant’s stores. Specific to products carried by Defendant, Plaintiffs’ response to Special Interrogatory No. 1 states that Ms. Godina used or was exposed to asbestos-containing powder products while her husband used Dr. Scholl’s foot powder from about 1974 to 2012, Gold Bond powder from the 1990s through 2012, and CVS’s Baby Powder in the 1980s and 2000s. (Def’s Compendium, Exh. 19, at 2:28-3:22.) Ms. Godina claims she

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/21/2026 Hearing on Motion for Summary Judgment filed by CVS PHARMACY, INC. (Defendant) CRS# 417431433075 in Department 18 purchased talcum powder products from stores including Defendant’s, including locations in Covina, Azusa, and Pomona California. (UMF No. 12.) The court finds that Plaintiffs’ discovery responses are not factually devoid as to whether Mr.

Garcia was exposed to products purchased at Albertsons. However, Plaintiffs’ discovery responses are factually devoid as to whether the products Ms. Godina was exposed to actually contained asbestos. While Plaintiffs’ response to SROG No. 1 describes the manufacturers of CVS store brand baby powder and asserts that they sourced the talc in the product from Chinese mines, these are conclusory allegations rather than facts.

The court finds that Defendant shifted the burden to the extent that Plaintiffs’ discovery responses and deposition testimony are factually devoid as to whether any of the talc products Plaintiffs purchased at CVS stores were contaminated with asbestos. Plaintiff submits affirmative evidence tending to establish that Vi-Jon manufactured Defendant’s private label baby powder and sourced the talc used in these products from mines in Montana, Vermont, and China. (PAMF Nos. 54-57 and evidence in support.) However, this evidence does not establish that the products Plaintiffs used and were exposed to contained asbestos themselves.

Plaintiffs submit the Declaration of R. Mark Bailey, geologist, an expert on asbestos-related geological and mineralogical issues. Mr. Bailey’s declaration attaches three studies he authored regarding the presence of asbestos in the Regal Mine in Montana, the Willow Mine in Montana, and the Hammondsville Mine in Vermont. (Bailey Decl., ¶¶ 2-4, Exhs. 2-4.) These studies conclude to a reasonable degree of scientific certainty that the talc mined from these mines was consistently contaminated with asbestiform tremolite and actinolite and that chrysotile asbestos was also found. (See, e.g., Bailey Decl., Exh. 2 at 114.) The court finds that Mr. Bailey’s declaration has adequate foundation for the opinions stated therein, but again, this evidence does not establish that the products Plaintiffs used were contaminated with asbestos.

Plaintiffs also present the declaration of expert witness Dr. William Longo, Ph.D. There is no foundation in the Longo Declaration regarding his “understanding” as to the sources of talc for the products identified at deposition by Mrs. Godina. As stated above, Plaintiffs present no admissible evidence of the source of the talcs for the products she used.

Dr. Longo cites to testing he performed on the relevant products. He tested one bottle of Gold Bond Foot Powder produced by an asbestos torts plaintiff who filed suit in this Court in 2024. Dr. Longo declares he found amphibole asbestos (tremolite) and another asbestiform mineral (richterite) in the sample tested. (Longo Dec. ¶ 24 and Exh. 6.)

Dr. Longo also tested nine bottles of Dr. Scholl’s foot powder. The first seven were reportedly purchased on eBay. Dr. Longo declares that the powder in the bottles came from the 1940s through the early 2000s. However, the Longo Declaration contains no foundation for this claim or any statement regarding how many of the bottles of Dr. Scholl’s foot powder were produced

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/21/2026 Hearing on Motion for Summary Judgment filed by CVS PHARMACY, INC. (Defendant) CRS# 417431433075 in Department 18 in or after 1974, although the eBay posts for the products indicate that three of them pre-dated 1970. Dr. Longo declares that his testing found amphibole asbestos (tremolite) or richterite in all seven samples and that six of the seven samples tested positive for chrysotile asbestos. (Longo Dec. ¶ 25 and Exh. 7.)

The second two bottles of Dr. Scholl’s were produced by the asbestos torts plaintiff who provided the bottle of Gold Bond foot powder. These bottles appear roughly contemporaneous with two of the bottles of Dr. Scholls foot powder referenced in the preceding paragraph. Dr. Longo declares and the relevant report indicates that one of the two samples tested positive for chrysotile asbestos and neither of the two samples tested positive for amphibole asbestos or richterite. (Id. at ¶ 26 and Exh. 8.)

Dr. Longo declares that he tested a bottle of CVS Baby Powder produced by a different asbestos torts plaintiff who filed suit in this Court in 2025. His declaration and testing report state that the sample tested positive for chrysotile asbestos, with an average amount of chrysotile bundles of 11,000 bundles per gram of talc. (Id. at ¶ 29 and Exh. 11.) Mr. Longo further declares that he tested 3 bottles of CVS Baby Powder collected by consumers who then provided the bottles to Plaintiffs’ law firm on August 25, 2025.

These bottles were negative for asbestos and positive for fibrous talc, with concentrations ranging from 14,300 to 15,400 fibrous talc structures per gram. (Id. at ¶ 30, Exh. 12.) Finally, Mr. Longo declares that he tested one bottle of CVS Baby Powder and one bottle of CVS Premium Medicated Body Powder on November 20, 2025. One of the bottles was positive for chrysotile asbestos with a concentration of 42,900 tremolite structures per gram, and positive for fibrous talc with concentrations ranging from 39,000 to 143,000 structures per gram. (Id. at ¶ 31, Exh. 13.)

The Court finds that Dr. Longo has an adequate foundation for an expert opinion that it is more likely than not that any individual bottle of Dr. Scholls Foot Powder, Gold Bond Foot Powder and CVS Baby Powder contained asbestos or other asbestiform minerals because five of the six roughly contemporaneous bottles of these products Dr. Longo tested positive for asbestos or asbestiform minerals. It is less clear when the CVS-branded bottles were manufactured, but three of the six CVS-branded bottles tested positive for asbestos. Further, based on the evidence of Mrs. Godina’s regular and routine use of these body powders between 1974-2016 and Mr. Godina’s use from 1974 to 2013, a reasonable jury could find that Plaintiffs purchased bottles of each of the three products from CVS over the relevant approximately forty-year period.

Plaintiffs also present the Declaration of Ronald Dodson, Ph.D., a biology professor, who has held faculty positions at a medical school and as Chief of the Dept. of Cell Biology and Experimental Pathology at a University Health Center. He cites to the World Health Organization’s International Agency for Research of Cancer (IARC), which has since 1987 considered asbestiform talc to be carcinogenic because of its similarity to asbestos. (Dodson Dec. ¶ 9.) Further, Dr. Dodson cites a study he and another person conducted that was later

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/21/2026 Hearing on Motion for Summary Judgment filed by CVS PHARMACY, INC. (Defendant) CRS# 417431433075 in Department 18 published in a 2020 scientific journal article in which they performed a tissue burden analysis on samples from two individuals who had been exposed to talc while working in the tile industry. They found ferruginous bodies in the workers’ lung tissue as well as elongated talc fibers/ribbons and elevated numbers of “noncommercial amphiboles,” presumably meaning asbestiform minerals other than the six minerals designated as “asbestos” based on their common use in past industry.

However, a copy of the scientific journal article is not attached as an exhibit to the Dodson Declaration. (Id. at ¶ 13.) He also cites to two articles by a Dr. Andrew Churg, who reported on studies showing that the cores of asbestos bodies found in women are more likely to consist of tremolite and anthophyllite asbestos while men are more likely to have cores that consist of amosite and crocidolite, and conjectured that the asbestos bodies in women could be attributable to use of talcum powder products, which have a history of tremolite and anthophyllite contamination. (Id. at ¶ 14.)

Dr. Dodson also declares that he has conducted tissue digestion analysis of samples from asbestos torts plaintiffs who alleged that their mesothelioma was caused by talc exposures and found particles consistent with cosmetic talc including fibrous talc, platy talc, talc ribbons, mica aluminum silicates and cummingtonite. (Id. at ¶ 15-17.) He ultimately opines that Mrs. Godina’s exposures to asbestos and asbestiform fibers in cosmetic talc is the most likely cause of her mesothelioma. (Id. at ¶ 20.)

The Court finds that there is adequate foundation for Dr. Dodson’s expert opinion.

The court finds that Plaintiffs’ affirmative evidence is sufficient to create a triable issue of fact as to whether the store brand, Gold Bond, and Dr. Scholl’s talc powder products Ms. Godina purchased at CVS stores, used, and was exposed to through her husband’s use was contaminated with asbestos and a substantial factor in his mesothelioma diagnosis.

For the reasons stated above, CVS’s motion for summary judgment is denied.

MOTION FOR SUMMARY ADJUDICATION

Negligence, Strict Liability, and Loss of Consortium

Defendant’s MSA of Plaintiffs’ Negligence and Strict Liability Causes of Action are based on the same UMF as Defendant’s MSJ and are summarily denied. Because the Court denies Defendant’s MSJ, Defendant’s MSA as to the Strict Liability, Negligence, and Loss of Consortium Causes of Action also fails.

The Court therefore DENIES Defendant’s MSA of Plaintiffs’ Strict Liability, Negligence, and Loss of Consortium Causes of Action.

Fraud

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/21/2026 Hearing on Motion for Summary Judgment filed by CVS PHARMACY, INC. (Defendant) CRS# 417431433075 in Department 18 Plaintiffs’ Cause of Action alleges four distinct fraud-based causes of action: (1) intentional misrepresentation; (2) fraudulent concealment; (3) conspiracy to commit intentional misrepresentation; and (4) conspiracy to commit fraudulent concealment.

“The elements of a cause of action for intentional misrepresentation are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) “[A] cause of action for misrepresentation requires an affirmative statement, not an implied assertion.” (RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1092.)

"The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact." (Hambrick v.

Healthcare Partners Med. Grp., Inc. (2015) 238 Cal. App. 4th 124, 162.) When there is no fiduciary relationship between the parties, “a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement.” (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1187.)

The elements of an action for civil conspiracy are: (1) formation and operation of the conspiracy; and (2) damage resulting to plaintiff; (3) resulting from a wrongful act done in furtherance of the common design. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1062.)

The Court finds Plaintiffs’ Response to SROG No. 1 factually devoid as to some elements of Plaintiffs’ fraud-based claims and Plaintiff’s punitive damages claim. The Response contains no statement of a specific affirmative misrepresentation of material fact made to anyone who reasonably relied thereon to Plaintiffs’ detriment, no particularized facts tending to show that Defendant engaged in a conspiracy with anyone, and no particularly facts tending to show that Defendant knew that any of the talcum powder products it sold were contaminated with asbestos during the 1974 to 2016 period when Plaintiffs used or were exposed to cosmetic talc products purchased from Defendant.

The response largely focuses on what Defendant learned about the possibility of cosmetic talc products being routinely contaminated with trace amounts of asbestos in and after 2016, the year Plaintiffs ceased using the products. These facts, even if proven at trial, have little relevance in showing that Defendant acted with malice, oppression or fraud towards Plaintiffs.

With respect to Plaintiffs’ fraud/concealment claim, Plaintiffs’ response to SROG 1 and

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/21/2026 Hearing on Motion for Summary Judgment filed by CVS PHARMACY, INC. (Defendant) CRS# 417431433075 in Department 18 opposition papers focus on customer complaints believed to have begun around 1999. Plaintiffs claim that CVS’s risk manager did not research the health effects of talcum powder in response to these complaints, that CVS did not send a customer a Material Safety Data Sheet in 2001, and a 2009 email exchange prompted by a “concerned customer” message asserting that talc was a known carcinogen.

The message was elevated to Dan Roehl, category manager for Baby Care at CVS. Mr. Roehl forwarded the email to other CVS managers, adding that he had done some of his own research and found that talc is toxic, is closely related to asbestos, and suggested the option of recalling the products. However, Mr. Roehl’s email does not identify the source(s) of his independent research or whether Defendant accepted or rejected his findings as to the talc products it sold. Moreover, Roehl’s suggestion that “clearly with or without asbestos-like fibers, cosmetic grade talcum powder is a carcinogen,” does not appear to conform to the 2012 IARC monograph as summarized in the Dodson Expert Witness Declaration.

In sum, the court finds Plaintiffs’ response to SROG 1 to be factually devoid to the extent that it does not include specific facts pertaining to whether Defendant concealed or suppressed a material fact or intended to defraud Plaintiff through such concealment.

For these reasons, the court finds that Defendant meets its initial burden of production, shifting the burden to Plaintiffs to put forth affirmative evidence sufficient to create a triable issue of fact as to Defendant’s purported concealment or intent to defraud.

The court finds that Plaintiffs’ opposition evidence is insufficient to create triable issues of fact that at any time Defendant knew that the cosmetic talcum powder products it sold were contaminated with asbestos, or contained asbestiform fibers and were carcinogenic. Thus, Plaintiff has not presented sufficient evidence to create triable issues of material fact regarding the first and third elements of a fraudulent concealment claim pursuant to Hambrick, supra.

Plaintiffs present evidence that in 2001 Defendant received a customer request for a Material Safety Data Sheet (“MSDS”) for CVS brand baby powder. Eventually, an employee of Defendant responded to the customer that CVS did not believe that the supplier of the baby powder was required to provide an MSDS under federal law, even though the product’s supplier Vi-Jon did, in fact, provide CVS with MSDS for the product. However, Plaintiffs present no evidence that the Vi-Jon MSDS sheet in effect at the time of the 2001 customer request contained any information linking talcum powder to cancer, the asbestos- or talc-related disease Mr. Maricich alleges. Thus, the evidence does not create a reasonable inference that the CVS employee’s misrepresentation regarding the existence of relevant MSDS was intended to conceal material facts, rather than an error on the party of the employee.

With respect to the 2009 customer complaint and the 2009 Roehl email, both of which put CVS on notice that cosmetic talcum powder was purportedly a human carcinogen, the evidence seems to be that CVS contacted Vi-Jon about these communications and received some sort of assurances from Vi-Jon that the cosmetic talcum powder products were safe for consumers, but

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/21/2026 Hearing on Motion for Summary Judgment filed by CVS PHARMACY, INC. (Defendant) CRS# 417431433075 in Department 18 that none of Defendant’s witnesses who were involved in the 2009 investigation can remember exactly what Vi-Jon told them, and CVS apparently did not create or maintain any written documents regarding the matter. None of this evidence creates a reasonable inference that CVS knew in 2009 that the cosmetic talcum powder products it received from Vi-Jon were contaminated with asbestos or could be carcinogenic.

For the foregoing reasons, the court GRANTS Defendant’s MSA as to Plaintiffs’ fraud/concealment claim.

Punitive Damages

To be entitled to an award of punitive damages, a plaintiff must show by clear and convincing evidence that the defendant is guilty of malice, oppression or fraud. (Cal. Civ. Code § 3294(a).) The definition of “malice” includes “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (§ 3294(c).) “Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people. (See CACI 3946.)

A finding of malice does not require an actual intent to cause harm. “Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” (Pfiefer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.)

Further, a defendant’s “prolonged failure” to take adequate measures to protect people who worked with its products against a known hazard to their health and safety may justify a conclusion that the conduct was malicious, fraudulent, or oppressive. (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 86.) However, the Cal. Supreme Court has stated that by addition of the word “despicable” to Civ. Code § 3294(c), “the statute plainly indicates that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)

A clear and convincing evidentiary standard applies to evidence presented by a plaintiff in opposition to a motion for summary adjudication of punitive damages claims. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1118-1119.) However, the clear and convincing evidentiary standard “does not impose on a plaintiff the obligation to ‘prove’ a case for punitive damages at summary [adjudication].” (Pacific Gas and Electric Co. v. Superior Court (2018) 24 Cal.App.5th 1150, 1158-1159.) “Summary adjudication ‘on the issue of punitive damages is proper’ only ‘when no reasonable jury could find the plaintiff’s evidence to be clear and

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/21/2026 Hearing on Motion for Summary Judgment filed by CVS PHARMACY, INC. (Defendant) CRS# 417431433075 in Department 18 convincing proof of malice, fraud or oppression.’ ” (Ibid.)

Further, a defendant moving for summary adjudication must still make an initial prima facie showing that no disputed issues of material fact exist such that defendant is entitled to summary adjudication as a matter of law in order to shift the burden of production to plaintiff to present clear and convincing evidence of malice, oppression or fraud. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.)

The court DENIES Defendant’s MSA as to punitive damages. The court finds that a reasonable fact-finder could credit Plaintiffs’ evidence as to the 2009 Roehl email and Defendant’s purported failure to follow up by properly researching or investigating the dangers of talc as a carcinogen or its close connection to, and potential contamination by, asbestos fibers and find that Defendant showed a conscious disregard for its consumers’ health and safety, that this conduct could rise to the level of being despicable, and therefore, a finding of malice, fraud or oppression is reasonable.

The Court therefore DENIES Defendant’s MSA of Plaintiffs’ Strict Liability, Negligence, Loss of Consortium Causes of Action and request for punitive damages, and GRANTS MSA as to Plaintiffs’ Fraud cause of action.

The Court OVERRULES Plaintiffs’ Opposition Objections.

The Court OVERRULES all of Defendant’s Reply Objections.

IV. Orders The motion for summary judgment is DENIED. The motion for summary adjudication is GRANTED IN PART in accordance with the above.

CONTESTING TENTATIVE ORDERS

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/21/2026 Hearing on Motion for Summary Judgment filed by CVS PHARMACY, INC. (Defendant) CRS# 417431433075 in Department 18 6. Select Click to Contest this Ruling 7. Enter your Name and Reason for Contesting 8. Select Proceed.