Ted W. Pelletier, Sarah E. Gilson and Marissa Y. Uchimura/Ramirez v. Avon Products, Inc.
CORPORATIONS STOPPED FROM SELF-SERVING ASSERTIONS OF INNOCENCE
Alicia Ramirez developed asbestos-caused mesothelioma after using Avon talcum-powder products for over 30 years. When she sued, Avon moved for summary judgment, purporting to designate a current employee, Lisa Gallo, as the “person most qualified” (PMQ) to discuss Avon’s historical products. Although Gallo had no personal knowledge predating her employment in 1994, she declared that Avon’s products since the 1970s have always been asbestos-free. She openly based this claim on repeating corporate hearsay evidence – i.e., from talking to other Avon employees and reading old Avon documents making that claim. The trial judge allowed the declaration, ruling that Gallo could repeat corporate hearsay based on her Avon title and responsibilities and her designation as a PMQ. In light of Gallo’s “no asbestos” claims, the judge granted summary judgment for Avon. The Second District Court of Appeal reversed, allowing Ramirez’s case to go forward and, most importantly for California consumers, ruling that corporations cannot offer corporate hearsay under the guise of a corporate PMQ. Like all non-expert witnesses, corporate employees are limited to testimony about matters in their personal knowledge. California’s statutory PMQ provision is intended for and limited to pre-trial discovery, assuring that consumer plaintiffs can obtain evidence from within the corporations they sue. It does not allow those corporations to designate a PMQ simply to recite self-serving claims. As Presiding Justice Maria E. Stratton wrote for the unanimous Court, witnesses are limited to “personal knowledge” testimony, and there is “no special category [in the Evidence Code] of ‘corporate representative’ witness, as the trial court suggested.” Gallo was “not an independent witness” but an “Avon employee who conducted her ‘investigation and review’ on behalf of Avon, a party to this action.” This decision will help consumers throughout the state, closing an evidentiary PMQ loophole that corporations had increasingly been exploiting to spin their defenses through self-serving claims via well-trained corporate representatives.