California court rejects Avon employee’s evidence as hearsay

Woman with mesothelioma claims she used Avon's asbestos-contaminated talcum powder

California court rejects Avon employee’s evidence as hearsay

The California Court of Appeal disagreed with a lower court’s decision to admit documents submitted by a company’s vice president of global innovation, research, and development and to admit the employee’s testimony supposedly channeling those documents.

A married couple – the plaintiffs in the case of Ramirez v. Avon Products, Inc. – filed a complaint against Avon Products, Inc. and other entities. The wife, who developed mesothelioma, claimed that she was exposed to asbestos through using Avon’s asbestos-contaminated talcum powder and through other ways.

The wife alleged that she used Avon’s Imari and Elusive talcum powder daily from the mid-1970’s to 2007 and that her daughter used Avon’s Imari, Sweet Honesty, and Odyssey talcum powder in a bathroom that they shared from the 1990’s to 2007.

Avon filed a motion for summary judgment. It argued that there was no proof that the wife came into contact with an Avon product contaminated with asbestos. It relied on a declaration from its then vice president of global innovation, research, and development.

Avon designated the vice president as someone most knowledgeable for the purposes of certain categories of information. She worked in Avon’s research and development department starting in 1994, halfway through the wife’s alleged exposure period. She said that she made statements based on her investigation or her own personal knowledge.

The plaintiffs objected to the vice president’s declaration and attached documents, which they claimed lacked foundation, lacked personal knowledge, and contained hearsay. Allegedly, nearly all the employee’s statements concerned Avon’s activities in the 1970’s, and all except two of the attached documents were also from that decade.

The trial court granted summary judgment in Avon’s favor. It overruled the plaintiffs’ objections to the vice president’s declaration and attached documents.

The California Court of Appeal for the Second District disagreed with the trial court’s decision and returned the matter to the trial court for further proceedings.

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The documents were themselves hearsay and all contained hearsay statements made by someone other than their author, the appellate court said. Avon employees apparently made some of these documents, but these employees’ background and position at Avon were unknown, the appellate court added.

The appellate court found it impossible to decide whether the sources of information were reliable, accurately cited, or containing personal knowledge about the matters discussed.

The vice president was a natural person who was subject to the imperfections of her memory and understanding, the appellate court said. Given the time frame involved, she was most likely “channeling” information from others who also lacked personal knowledge and who acquired their information from those likewise lacking personal knowledge, the appellate court concluded.

Her repetition of that information was not reliable just because she was repeating it as a corporate representative instead of stating it on her own behalf, the appellate court added.

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