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.

Instead, the defendant may show through factually devoid discovery 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 SAFEWAY INC. (Defendant) CRS# 762060630012 in Department 18 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 GRANTS 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 while her husband used, Dr. Scholl’s foot powder, Gold Bond powder, and Johnson’s baby powder as among the products Ms. Godina used and from which she was exposed to asbestoscontaminated talc. (Def’s Compendium, Exh. 19 at 2:28-324; UMF No. 27.) Plaintiffs contend Ms. Godina was exposed to Dr. Scholl’s foot powder from about 1974 to 2012 and Gold Bond powder from the 1990s through 2012. (Ibid.) Ms. Godina generally recalled purchasing the products from a Safeway in the San Fernando area. (UMF Nos. 8-10; C.

Godina Tr. at 232:6-

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 SAFEWAY INC. (Defendant) CRS# 762060630012 in Department 18 232:18.) However, Ms. Godina could not recall the first or last times she purchased talc products at Safeway. (Godina Tr. at 232:19-232:24.) The court finds that Plaintiffs’ discovery responses are not factually devoid as to whether Mr. Garcia was exposed to products purchased at Safeway. However, Plaintiffs’ discovery responses are factually devoid as to whether the products Ms. Godina was exposed to actually contained asbestos.

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 Safeway 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. 47, 48 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 purchased from Safeway 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. ¶ 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 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

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 SAFEWAY INC. (Defendant) CRS# 762060630012 in Department 18 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.)

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 or Gold Bond Foot 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. However, Ms. Godina’s deposition testimony does not establish that the Godinas purchased Dr. Scholls or Gold Bond products at Safeway during her exposure period.

Ms. Godina could only identify “the baby powder” as having been purchased at Safeway, and only vaguely recalled details of the bottles she purchased. Her recollection of using “talcum powder product[s] that you purchased at Safeway” was in response to a leading question from counsel. (C. Godina Tr. at 232:25-233:19.) Moreover, Dr. Longo does not declare that he tested any Safeway-branded products.

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 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

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 SAFEWAY INC. (Defendant) CRS# 762060630012 in Department 18 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. However, Dr. Dodson’s testimony also does not establish that Plaintiffs purchased asbestos-contaminated talc products from Safeway.

On this record, the court finds that Plaintiffs’ affirmative evidence fails to create a triable issue of fact as to whether the Gold Bond and Dr. Scholl’s talc powder products Ms. Godina purchased at Safeway stores, used, and was exposed to through her husband’s use was contaminated with asbestos and a substantial factor in his mesothelioma diagnosis. Plaintiffs’ evidence and testimony are too speculative to create a triable issue of fact as to whether Plaintiffs’ purchase of talc products from Safeway stores was a substantial factor in her mesothelioma diagnosis.

For the reasons stated above, Safeway’s motion for summary judgment is GRANTED.

MOTION FOR SUMMARY ADJUDICATION

In light of the court’s granting Defendant’s MSJ, its MSA is DENIED AS MOOT.

IV. Orders The motion for summary judgment is GRANTED. The motion for summary adjudication is DENIED as moot.

CONTESTING TENTATIVE ORDERS

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1. Log into eCourt Public Portal - https://eportal.alameda.courts.ca.gov 2. Case Search 3. Enter the Case Number and select Search 4. Select the Case Name 5. Select the Tentative Rulings Tab 6. Select Click to Contest this Ruling 7. Enter your Name and Reason for Contesting 8. Select Proceed.

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 SAFEWAY INC. (Defendant) CRS# 762060630012 in Department 18