CAUSE NO. DARLENE COKER, ET AL IN THE DISTRICT COURT OF VS. JEFFERSON COUNTY, TEXAS BILL THAMES PHARMACY, INC., CORRIGAN ENTERPRISES, INC. flk/a BABY f/kfa S.W.S. PHARMACY INC., FERTITTAS FINER FOODS, INC., GIANT FOOD DISCOUNT CITY, INC., HENKE PILLOT, INC., HSTN. INC. f/k/a BABY PRODUCTS, JOHNSON JOHNSON PROFESSIONAL, LOVOI AND SONS PHARMACIES, INC., MCNEIL PPC INC. PRODUCTS, THE KROGER COMPANY 136TH JUDICIAL DISTRICT MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Johnson Johnson Consumer Companies, Inc. defendant in the above-entitled and numbered cause, and ?les this Motion for Summary Judgment. In support thereof, defendant would respectfully show unto the Court as follows: I. PROCEDURAL LAW Rule 166a(i) of the Texas Rules of Civil Procedure provides that a party may move for . 1:5? 7 .- summary judgment on the grounds that there IS no ev1dence on one or moreessentlal elements of a .- elaim or defense on which the opposing party bears the burden of proof. TEX. R. GIVE-R 166a(i) .. (Vernon Supp. 1998). Speci?cally, Rule 166a(i) providesMWII33598 After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The Court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Id. II. CLAIMS AGAINST JOHNSON JOHNSON This is a personal injury case involving a product liability claim in which plaintiffs, Darlene and Roy Coker, allege that Darlene Coker?s alleged exposure to Johnson Johnson products caused her to contract mesothelioma. Speci?cally, plaintiffs allege that 1&3 ?made, sold, or specified, talc products which were defective and unreasonably dangerous as designed, manufactured and marketed.? Plaintiffs? Original Petition at 2. Plaintiffs further allege that ?[t]hese products, used as as intended and forseen, necessarily released poisonous talc, which was a producing cause of [Darlene Coker?s] mesothelioma.? Id. 111. NO EVIDENCE OF CAUSATION Under Texas law, when a plaintiff 3 cause of action is one for personal injury, she ?must prove that the conduct of the defendant caused an event and that this event caused the plaintiff to suffer compensable injuries.? Burroughs Wellcome Co. v. Crye, 907 497, 499 (Tex. 1995). In an action for injirries due to a defective product, whether the claim is grounded in negligence or strict liability, the plaintiff is must establish that a causal connection between the alleged defective product and her injury exists. Product liability claims based on negligence require a showing of proximate cause and product liability claims based on strict liability require a showing of producing cause. Union Pump Co. v. Alibrz'n?on, 898 773, 775 (Tex. 1995). Common to both proximate and producing cause is causation in fact which requires the plaintiff to demonstrate that the acts or omissions of the defendant were a substantial factor in bringing about the injury which would not otherwise have occurred. 1d,; Prudential Insurance Co. v. Je?erson Assam, 896 156, 161 (Tex. 1995); Nixon v. Mr. Property Management Co, 690 SW. 2d 546, 549 (Tex. 1985). Plaintiffs have produced no evidence that any alleged acts or omissions by in maufacturing and suppling any product are a cause in fact of Darlene Coker?s mesothelioma. IV. ADEQUATE TIME FOR DISCOVERY Plaintiffs? case was ?led September 23, 1997. Plaintiffs requested an expedited trial and the Court set the case for June 22, 1998 but subsequently continued the case until September 21, 1998. Although at this time plaintiffs? medical causation expert has completed all necessary work, he has not tendered any opinion that 85] products in any way caused Darlene Cokers mesothelioma, nor have plaintiffs produced any other evidence to support that proposition. V. CONCLUSION Defendant, Johnson Johnson Consumer Companies, Inc, is entitled to summary judgment because there is no evidence of one or more essential elements of plaintiff?s claim on which the plaintiff would have the burden of proof at trial. After adequate time for discovery, plaintiffs have failed to produce any evidence of causation. Speci?cally, plaintiffs have produced no evidence that Darlene Coker?s alleged exposure to Johnson Johnson products was, in any way, a cause in fact MW1133598 of her mesothelioma. Accordingly, defendant is entitled to summary judgment on all plaintiff? 5 claims against all defendants. WHEREFORE, PREMISES CONSIDERED, defendant, Johnson Johnson Consumer Companies, Inc., prays that this motion be set for hearing, with notice to plaintiff and that on completion of the hearing, its Motion for Summary Judgment be in all things granted, and that the Court enter a judgment that plaintiffs take nothing, and that defendant recover its costs of court from plaintiff. Defendant also prays for such other and further relief, both general and Special, to which this defendant may be justly entitled. ReSpectfully submitted, MEHAFFY WEBER Attorneys for Defendant, Johnson Johnson Consumer Companies, Inc. By Gene M. illiams State Bar No 21535300 . Sandra F. Clark State Bar No. 04294520 M. Raymond Hatchet State Bar No. 24002243 Post Office Box 16 Beaumont, TX 77704 Telephone: (409) 835-5011 Telecopier: (409) 835?5177 CERTIFICATE OF CONFERENCE I that an associate in my of?ce conferred with the plaintiffs attorney, Heschel Hobson regarding this motion, and Mr. Hobson is opposed. Gene Williams CERTIFICATE OF SERVICE A copy of the fnjregoing instrument has been forwarded to all counsel of record on this the Raymond Hatchet Rf.-