Dale Chapp v. Colgate-Palmolive Company

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 27, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP937 Cir. Ct. No. 2015CV5887

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

DALE CHAPP, INDIVIDUALLY AND
AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF RUTH CHAPP, DECEASED,

PLAINTIFF-APPELLANT,

V.

COLGATE-PALMOLIVE COMPANY,

DEFENDANT-RESPONDENT,

AND IMERYS TALC AMERICA, INC.,

DEFENDANT.

APPEAL from an order of the circuit court for Milwaukee County:
WILLIAM SOSNAY, Judge. Affirmed

Before Kessler, Kloppenburg and Dugan, JJ.
No. 2018AP937

¶1 DUGAN, J. Dale Chapp, individually and as the personal
representative of the Estate of Ruth Chapp, deceased, appeals from the trial court’s
order granting summary judgment to Colgate-Palmolive Company, the
manufacturer of Cashmere Bouquet talcum powder, dismissing Chapp’s claims
against it.1

¶2 This action arises from Chapp’s claim that his wife, Ruth Chapp,
was directly exposed to inhalable asbestos from her daily use of “asbestos
containing” Cashmere Bouquet talcum powder from 1969 to the mid-1980’s and
that this asbestos exposure was a contributing cause of Ruth’s2 death due to
mesothelioma, a type of cancer associated with exposure to asbestos.

¶3 Chapp acknowledges that his occupation and projects resulted in
Ruth’s exposure to asbestos fibers. Chapp states that Ruth was regularly exposed
to inhalable asbestos from the products and/or machinery that he worked with and
around when she shook out and laundered his work clothes.3 He also alleges that
Ruth was exposed to inhalable asbestos because she used Colgate’s Cashmere

1
Imerys Talc America, Inc. and Cyprus Amax Minerals Company were also named as
defendants in Chapp’s complaint. Each filed a motion for summary judgment, as did Colgate.
Imerys filed for bankruptcy on February 13, 2019, in the United States Bankruptcy Court for the
District of Delaware and, therefore, as to Imerys, that appeal is stayed pending the outcome of
that bankruptcy proceeding. The trial court also granted summary judgment in favor of Cyprus
Amax based on the court’s determination that Cyprus Amax had established that it did not
assume the liabilities of any company that sold the talc at issue in this case. Chapp does not
appeal that ruling and Cyprus Amax will not be further mentioned in this opinion.
2
In this opinion, for clarity, we refer to Chapp’s wife by her given name.
3
Initially, Chapp’s complaint included allegations against his former employer that used
welding rods and equipment that contained asbestos; and several sellers, manufacturers, or
distributors of products designed to include asbestos such as asbestos containing clutches, joint
compounds, brakes, welding rods, and welding equipment. Those claims are no longer part of
this action.

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No. 2018AP937

Bouquet talc powder that contained asbestos, at least once a day for approximately
nine years.

¶4 Chapp alleges the following claims against Colgate: (1) strict
liability defective design; (2) strict liability unreasonably dangerous products;
(3) negligence; (4) negligence per se; and (5) punitive damages.

¶5 The trial court granted Colgate’s motion for summary judgment
because it concluded, as a matter of law, that Chapp had “not shown more than the
mere possibility of causation,” which was insufficient to overcome the summary
judgment motion. The trial court determined Chapp’s submissions could only
show that some of the Cashmere Bouquet used by Ruth could have contained
asbestos. It concluded that because, at best, liability and non-liability were evenly
balanced, the jury could only find causation by speculation and conjecture, which
would be improper.

¶6 Chapp argues that the trial court erred as a matter of law when it
granted summary judgment to Colgate on the issue of causation because it failed
to view the evidence in a light most favorable to Chapp and to draw all reasonable
inferences in his favor. We disagree and, therefore, affirm.

BACKGROUND

Colgate and Cashmere Bouquet

¶7 Colgate manufactured, marketed, and sold Cashmere Bouquet
talcum powder from 1871 to 1995. Cashmere Bouquet talcum powder contained
cosmetic grade talc, small amounts of perfume, and anti-caking and anti-bacterial
agents. The talcum powder was in a soft pink oval container labeled “Cashmere

3
No. 2018AP937

Bouquet” with a “shaker top.” Cashmere Bouquet was never formulated to
contain asbestos.

Ruth’s use of Cashmere Bouquet

¶8 Beginning in 1969 through approximately 1985, Ruth used
Cashmere Bouquet at least every day after she showered. She used additional
Cashmere Bouquet when she was warm or anticipated that she would perspire.
Ruth switched to different brands of talcum powder in approximately 1985.

¶9 In August 2013, Ruth began experiencing extreme fatigue and lower
abdominal pain. She was diagnosed with malignant peritoneal mesothelioma, a
type of mesothelioma that affects abdominal tissue. The diagnosis was
subsequently confirmed by a pathology examination. Ruth died on September 21,
2013.

¶10 Chapp does not have any Cashmere Bouquet product that Ruth
actually used and he does not know of anyone who possesses Cashmere Bouquet
that is identical to the product Ruth used. Consequently, the actual product that
Ruth used has not been tested for asbestos.

Talc and asbestos

¶11 Talc is a mineral that is found in talc deposits in mines. Cosmetic
and pharmaceutical grade talcs are the purest forms of talc. Talc itself is not
asbestos. Non-talc minerals can be present in a talc deposit in a mine. Those
minerals are often referred to as “accessory minerals.” If asbestos were present in
talc, it would be considered an accessory mineral.

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No. 2018AP937

¶12 Asbestos is a term for the following six regulated, naturally
occurring, highly fibrous silicate minerals: (1) chrysotile; (2) crocidolite;
(3) amosite; (4) tremolite asbestos; (5) anthrophyllite asbestos; and (6) actinolite
asbestos. These regulated minerals are included in two different mineral
families—serpentine and amphibole. Serpentine and amphibole minerals can
crystalize in a rather common non-asbestiform habit that is not regulated as
asbestos.4 However, they also can crystalize in a relatively rare asbestiform habit
that is regulated as asbestos. Chrysotile is the only regulated asbestiform mineral
that is in the serpentine family. The other five regulated asbestiform minerals are
in the amphibole family.

Scientific testing of talc and talc products for asbestos
contamination

¶13 In the time period relevant to this action, Colgate obtained the talc it
used in Cashmere Bouquet from three sources—mines in Italy, North Carolina,
and Montana. Chapp alleges that the mines from which Colgate obtained the talc
contained asbestos during the years Ruth was allegedly exposed to asbestos.

¶14 The trial court summarized Chapp’s allegations regarding asbestos
found in samples of talc from the mines.5 The summary included findings by

4
“Habit” is used in mineralogy to describe the shape of either a single crystal or
aggregates of crystals.
5
The trial court excluded some of Chapp’s evidence because Chapp removed two of his
experts, Ronald Gordon and Sean Fitzgerald, from his expert witness list. It stated that Chapp
could only rely on admissible evidence in support of his motion for summary judgment and
because Gordon and Fitzgerald were no longer witnesses their expert reports were hearsay and
were not admissible. Thus, it excluded their expert reports and disregarded the reports when it
granted Colgate’s motion for summary judgment. On appeal, Chapp does not challenge the trial
court’s ruling.

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No. 2018AP937

various studies and entities that reported finding asbestos in some samples of talc
taken from the mines, particularly the mines in Italy between 1968 and 1979. The
trial court also cited to other studies reporting that the Italian mines were also
tested throughout the same time frame and found not to contain asbestos. It
commented that the Italian talc mines were still open and producing cosmetic talc
“today.” As to the North Carolina and Montana talc mines, the trial court stated
that Chapp provided evidence of asbestos contamination via Colgate’s internal
testing and research. Colgate disagreed, alleging that “‘[t]he only tests of the
[North Carolina] mine reported in the scientific literature found its talc to be
asbestos-free’ and that the ‘talc from Montana does not contain asbestos forming
minerals.’”

¶15 Chapp also alleged that Cashmere Bouquet was tested and found to
contain asbestos during the years Ruth was allegedly exposed to asbestos in
Cashmere Bouquet. The trial court summarized Chapp’s evidence that certain
samples of Cashmere Bouquet were tested and analyzed and found to contain
asbestos. In 1968, the Johns Manville Research and Engineering Center6 tested
eleven brands of talcum powder for fibrous components and found a trace of
asbestos in the Cashmere Bouquet sample. In 1973, Dr. Alfred Weissler of the
federal Food and Drug Administration (FDA) summarized New York University
Professor Seymour Z. Lewin’s analytical results for asbestos in talc. Professor
Lewin analyzed 195 samples of talc from various companies, including two
samples of Cashmere Bouquet. He found that one Cashmere Bouquet sample

6
Johns Manville is the United States’ largest producer of chrysotile asbestos products.
We refer to this company by its current name in this opinion.

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No. 2018AP937

contained 8% chrysotile, but he could not determine if there was any chrysotile in
the second sample.

¶16 Periodically, Walter C. McCrone Associates, Inc. tested talcum
powder for asbestos as an outside laboratory for Colgate. In 1974, McCrone
reported to Colgate that it found chrysotile in the samples of Cashmere Bouquet it
had tested. In March 1976, Colgate received a report from the Mount Sinai School
of Medicine that its testing of a Cashmere Bouquet sample showed “high
asbestos.” In 1984, McCrone informed Colgate that its testing of six samples of
“finished products”7 showed that chrysotile asbestos was present in three samples.

¶17 The record reflects that Colgate’s expert, Matthew Sanchez, Ph.D.,
challenged all of the contemporaneous, historical reports, both published and
unpublished, concerning the testing for asbestos of talc sourced for use in
Cashmere Bouquet talcum powder. He stated that those reports are based on novel
methodologies that are neither generally accepted nor considered reliable today for
identifying and quantifying any asbestos in talc and talcum powder.

¶18 The summary above reflects that Chapp and Colgate have introduced
conflicting evidence regarding the issues of (1) whether the mines from which
Colgate obtained its talc contained asbestos, and (2) whether Cashmere Bouquet
contained asbestos during the period of time that Ruth was allegedly exposed to
asbestos from Cashmere Bouquet. We discuss below how that conflicting
evidence affects Colgate’s motion for summary judgment.

7
The record does not disclose whether Cashmere Bouquet was one of the “finished
products” that McCrone tested for asbestos.

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No. 2018AP937

Medical evidence regarding mesothelioma and asbestos

¶19 Malignant mesothelioma is a tumor associated with inhalation
exposure to asbestos fibers. The latency period between exposure and diagnosis
typically ranges from twenty to forty years.

¶20 In her expert report, one of Chapp’s expert medical witnesses,
Jacqueline Moline, M.D., a specialist in occupational and environmental diseases,
stated that “[a]sbestos exposure is the only known occupational and/or
environmental cause of mesothelioma in North America.” She also opined that
Ruth suffered and died from rapidly progressive malignant mesothelioma. In her
report she stated that “[a]ssuming that the above information is correct, [Ruth’s]
mesothelioma was a result of her exposure to asbestos.”

¶21 Chapp’s other expert medical witness, Richard Kradin, M.D., a
pulmonary pathologist, stated that “[it is] generally accepted in the medical
community that asbestos causes mesothelioma and the great majority of
mesotheliomas are caused by asbestos.” Dr. Kradin also stated that Ruth was
exposed to asbestos over many years in two ways—laundering her husband’s
work clothes and applying talcum powder that more probably than not was
contaminated with asbestos. He further opined that those exposures were the
contributory sources of Ruth’s mesothelioma and her death.8

8
Colgate argues that Chapp cannot meet his burden of proof to establish that Ruth’s
exposure to Cashmere Bouquet specifically was a substantial cause of her development of
mesothelioma, as opposed to her admitted exposure to asbestos from numerous other products
that were intentionally designed to contain asbestos. Because we conclude that Chapp has not
presented sufficient evidence that the Cashmere Bouquet that Ruth used contained asbestos, we
need not address Colgate’s argument.

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No. 2018AP937

STANDARD OF REVIEW

¶22 Chapp argues that the trial court erred in granting summary
judgment because he presented evidence from which the jury could reasonably
infer that some of the Cashmere Bouquet that Ruth used was contaminated with
asbestos.9 Colgate argues that, even if fully credited, Chapp’s evidence merely
shows possible asbestos contamination in some Cashmere Bouquet, which is
insufficient as a matter of law to support a reasonable inference that the Cashmere
Bouquet used by Ruth was tainted.

¶23 We review a grant of summary judgment de novo, using the same
methodology as the trial court, but benefiting from its analysis. See Eichenseer v.
Madison-Dane Cty. Tavern League, Inc., 2008 WI 38, ¶30, 308 Wis. 2d 684, 748
N.W.2d 154. Summary judgment is appropriate where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. WIS.
STAT. § 802.08(2) (2017-18).10 Affidavits in support of and in opposition to a
motion for summary judgment “shall be made on personal knowledge and shall set
forth such evidentiary facts as would be admissible in evidence.” WIS. STAT.
§ 802.08(3).

¶24 Furthermore, “[w]e owe no deference to the trial court’s
determination, and we will reverse a summary judgment if the trial court

9
Chapp also argues that he presented sufficient evidence that Ruth’s exposure to
asbestos from Cashmere Bouquet was a “substantial factor” in her development of mesothelioma.
Because we conclude that Chapp has not presented sufficient evidence that the Cashmere
Bouquet that Ruth used was contaminated with asbestos, we need not address the issue.
10
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

9
No. 2018AP937

incorrectly decided a legal issue or if material facts were in dispute[.]” See BMO
Harris Bank, N.A. v. European Motor Works, 2016 WI App 91, ¶14, 372 Wis. 2d
656, 889 N.W.2d 165 (internal citation omitted). “We examine the moving party’s
submissions to determine whether they constitute a prima facie case for summary
judgment. If they do, then we examine the opposing party’s submissions to
determine whether there are material facts in dispute that entitle the opposing party
to a trial.” See Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶9, 324
Wis. 2d 180, 781 N.W.2d 503 (internal citation omitted). The moving party “need
only make a prima facie showing that the evidence would be admissible at trial. If
admissibility is challenged, the [trial] court must then determine whether the
evidence would be admissible at trial.” Id., ¶10 (internal citation omitted).

¶25 “In determining whether material facts are at issue, we must ask
whether ‘only one reasonable inference may be drawn from the undisputed facts.’”
See Zielinski v. A.P. Green Indus., Inc., 2003 WI App 85, ¶7, 263 Wis. 2d 294,
661 N.W.2d 491 (citation omitted). “If so, ‘the drawing of that inference is a
question of law, and an appellate court may draw it.’” Id. (citation omitted). If,
however, our “review of the record reveals that disputed material facts exist or
undisputed material facts exist from which reasonable alternative inferences may
be drawn, then summary judgment is inappropriate.” See id.

¶26 With respect to causation and summary judgment, our supreme court
has held:

The test of cause in Wisconsin is whether the
defendant’s negligence was a substantial factor in
contributing to the result. The phrase “substantial factor”
denotes that the defendant’s conduct has such an effect in
producing the harm as to lead the trier of fact, as a
reasonable person, to regard it as a cause, using that word
in the popular sense.

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No. 2018AP937

Causation is a fact; the existence of causation
frequently is an inference to be drawn from the
circumstances by the trier of fact.

....

[If] there is no credible evidence upon which the
trier of fact can base a reasoned choice between ... two
possible inferences, any finding of causation would be in
the realm of speculation and conjecture. “Speculation and
conjecture apply to a choice between liability and
nonliability when there is no reasonable basis in the
evidence upon which a choice of liability can be made.”
“A mere possibility of such causation is not enough; and
when the matter remains one of pure speculation or
conjecture or the probabilities are at best evenly balanced,
it becomes the duty of the court to direct a verdict for the
defendant.”

Id., ¶16 (citing Merco Distrib. Corp. v. Commercial Police Alarm Co., 84 Wis. 2d
455, 458-59, 460, 267 N.W.2d 652 (1978); ellipses in Merco Distrib. Corp.;
emphasis added.)

DISCUSSION

¶27 The issue in this case is whether Chapp has presented credible
evidence from which a reasonable person could infer that Ruth was exposed to
asbestos when she used Cashmere Bouquet, or whether he has presented evidence
that Ruth’s exposure to asbestos in Cashmere Bouquet is only a possibility.
Construing the evidence in a light most favorable to Chapp, we conclude that, at
best, he has presented evidence that it is possible that Ruth was exposed to
asbestos in Cashmere Bouquet. Chapp’s evidence is not sufficient to permit a
reasoned choice between alternative findings, one leading to liability and the other
not. Because any finding regarding Colgate’s liability or the lack of liability
would be based on speculation, we uphold the trial court’s summary judgment
order.

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No. 2018AP937

¶28 As the trial court noted, there is no direct evidence that the Cashmere
Bouquet used by Ruth contained asbestos, but Chapp has produced circumstantial
evidence indicating that asbestos was found in some mines that supplied talc to
Colgate and in some samples of Cashmere Bouquet. “Circumstantial evidence is
not necessarily better or worse than direct evidence. Either type of evidence can
prove a fact.” WIS JI—CIVIL 230. However, here Chapp’s evidence only makes it
possible to conclude that the Cashmere Bouquet used by Ruth included some
asbestos. See Merco Distrib. Corp. v. Commercial Police Alarm Co., 84 Wis. 2d
455, 458-61, 267 N.W.2d 652 (1978) (overturning a jury verdict on the issue of
causation in a negligence action against a company that provided burglary alarm
services to a client whose property was burglarized because the record failed to
remove the issue of causation from the realm of speculation; the cause of the
client’s loss could be attributed to a condition to which no liability attaches or to
one for which liability attaches).

¶29 To infer links between Ruth’s mesothelioma and the Cashmere
Bouquet produced by Colgate would require piling one possibility on top of
another possibility. Specifically, it would require the possibility that Colgate’s
suppliers supplied Colgate with talc containing asbestos, followed by the
possibility that Colgate filled containers of Cashmere Bouquet with talc containing
asbestos, and followed by the possibility that Ruth purchased and used containers
of Cashmere Bouquet that contained the tainted talc. See Risse v. Building Serv.
Indus. Supply, No. 2011AP1415, unpublished slip op. ¶26 (WI App July 3, 2012).
Based on the facts and circumstances in the record in this case, we conclude that,
at best, Chapp has presented evidence that it is possible that Ruth was exposed to
asbestos in Cashmere Bouquet.

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No. 2018AP937

¶30 Although we are mindful that each case depends on the totality of
the circumstances in that case, see Zielinski, 263 Wis. 2d 294, ¶18, we conclude
Chapp’s case presents a situation that is similar to those that were presented in
Miller v. American Art Clay Co. Inc., 28 F. Supp. 3d 825 (W.D. Wis. 2014), and
Risse v. Building Service Industries Supply, No. 2011AP1415, unpublished slip
op. (WI App July 3, 2012).11 Miller involved claims arising from the death due to
mesothelioma of an artist, Don Peter Miller, who worked with clay. Id.,
28 F. Supp. 3d at 826. Miller’s wife and daughter brought a lawsuit against
American Art Clay, a clay manufacturer, and R.T. Vanderbilt Co., Inc., a supplier
of talc that American used in some of its clay. Id. at 826-27. The plaintiffs
alleged that Vanderbilt’s talc contained asbestos and that Miller used American’s
White Clay No. 25 which contained that talc. Id. Miller was also exposed to
other sources of asbestos. Id. at 827.

¶31 The federal district court granted the defendants’ summary judgment
motions concluding that the plaintiffs did not have sufficient evidence to show that
Miller had used White Clay No. 25. Id. at 829. Miller had not been deposed
before he died and the only evidence about the clay he used was the testimony of
the plaintiffs, who recalled that Miller used white or light gray American clay. Id.
at 827. Their description of the clay matched those of multiple American clays—

11
The decision in Miller v. American Art Clay Co., 28 F. Supp. 3d 825 (W.D. Wis.
2014) interpreting Wisconsin case law is persuasive but not precedential authority. See Kaloti
Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, ¶23, 283 Wis. 2d 555, 699 N.W.2d 205. We
rely on Miller because of the similarity of the relevant facts and its astute analysis.

Furthermore, we do not cite Riese v. Building Service Industries Supply,
No. 2011AP1415, unpublished slip op. (WI App July 3, 2012) as authority, but are persuaded by
its reasoning. See WIS. STAT. RULE 809.23(3) (allowing the citation of unpublished opinions
issued on or after July 1, 2009 for persuasive value).

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No. 2018AP937

including some that did not contain any talc. Id. at 827, 831. Applying Zielinski,
263 Wis. 2d 294, ¶16, the federal district court concluded that because the
description of the clay included American clay that contained no talc, the jury
would be forced to speculate regarding whether American and Vanderbilt were the
source of the asbestos that caused Miller’s mesothelioma. See Miller,
28 F. Supp. 3d at 826, 831. Here, as in Miller, the jury would be forced to
speculate as to whether any Cashmere Bouquet used by Ruth contained asbestos
tainted talc.

¶32 In Risse, we upheld an order of the trial court granting summary
judgment that dismissed products liability claims against a contractor, L & S
Insulation Company, and its supplier arising out of the death of Loren Risse
caused by mesothelioma. See id., No. 2011AP1415, ¶¶23, 27. For approximately
forty years, Risse worked in construction as a carpenter at over fifty job sites. Id.,
¶2. Insulation contractors installing asbestos and fiberglass insulation were also
present when Risse was working. Id. Risse estimated that L & S was present at
20% of the job sites where he worked. Id., ¶20.

¶33 We held that the evidence was insufficient to create a factual basis
for an inference that L & S’s asbestos was ever at the same job site as Risse. See
id., ¶23. We also held that the business relationship between the supplier and
L & S was insufficient to establish more than a possibility that Risse was exposed
to asbestos because the supplier also furnished non-asbestos containing products,
and L & S primarily used fiberglass in its insulation work. See id., ¶27.

¶34 Here, there is evidence that some containers of Cashmere Bouquet
contained asbestos. But there is also evidence that other containers of Cashmere
Bouquet did not contain asbestos. As in Risse, this court concludes that there is

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No. 2018AP937

insufficient evidence to create a factual basis for the inference that Ruth ever
purchased or used any Cashmere Bouquet containing asbestos. Any such
inference would be based on pure speculation or conjecture.

¶35 Chapp argues that Lambrecht v. Estate of Kaczmarczyk, 2001 WI
25, ¶¶81, 85, 241 Wis. 2d 804, 623 N.W.2d 751, demonstrates the proper approach
in a case in which conflicting reasonable inferences may be drawn from the
summary judgment record. He asserts that, “[i]f the evidence might reasonably
lead to either of two inferences it is for the jury to choose between them.” See id.
However, as we stated above:

“Speculation and conjecture apply to a choice between
liability and nonliability when there is no reasonable basis
in the evidence upon which a choice of liability can be
made.” “A mere possibility of such causation is not
enough; and when the matter remains one of pure
speculation or conjecture or the probabilities are at best
evenly balanced, it becomes the duty of the court to direct a
verdict for the defendant.”

Zielinski, 263 Wis. 2d 294, ¶16 (emphasis added, citations omitted). We agree
with the trial court’s conclusion that the probabilities that Ruth used Cashmere
Bouquet that contained asbestos or that she only used Cashmere Bouquet free of
asbestos are at best evenly balanced.

¶36 Chapp also relies on Zielinski and Horak v. Building Services
Industry Sales Co., 2008 WI App 56, 309 Wis. 2d 188, 750 N.W.2d 512. He
argues that the circumstantial evidence that Ruth was exposed to asbestos in
Cashmere Bouquet is at least as compelling as the evidence that the decedents in
those cases were exposed to the defendants’ asbestos containing products in those
cases. We disagree.

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No. 2018AP937

¶37 The record in Zelinski established that George Zelinski did the type
of work that used asbestos and that Zelinski’s employer “probably bought”
asbestos from the defendant. Id., 263 Wis. 2d 294, ¶¶19, 20. Therefore, a
factfinder might infer that Zelinski used this product in his work. Id. In Horak,
the record showed that George Benzinger did the type of work that used asbestos
and that during the period of time in question Benzinger’s employer or its
predecessor bought asbestos from the defendant. Id., 309 Wis. 2d 188, ¶14.
Therefore, a reasonable jury could infer that Benzinger used the defendant’s
asbestos in his work. Id. Unlike the instant case, Zelinski and Horak involved
products that were known to contain asbestos. Here, at best, Chapp has presented
circumstantial evidence that it is possible that Ruth was exposed to asbestos in
Cashmere Bouquet. Chapp’s evidence is not sufficient to permit a reasoned
choice between alternative findings, one leading to liability and the other not. Any
finding regarding Colgate’s liability or the lack of liability would be based on
speculation.

¶38 Finally, Chapp argues that the inference that Ruth was exposed to
asbestos from her use of Cashmere Bouquet is supported by the affidavit
testimony of Dr. Jacqueline Moline, his expert in occupational and environmental
disease. He states that Dr. Moline cited an article authored by Gordon and
Fitzgerald that reported that testing established that ordinary use of Cashmere
Bouquet would cause asbestos to enter the breathing zone of the user in amounts
far in excess of background levels and higher than the current permissible
exposure level recognized by OSHA (the federal Occupational Safety and Health
Administration). Chapp then states that Dr. Moline expressed the opinion, to a
reasonable degree of medical certainty, that Ruth’s exposure to “asbestos-
containing” talcum powder and exposure to her husband’s “asbestos-containing”

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No. 2018AP937

clothes led to the development of her mesolthelioma. Chapp also relies on the
opinion of Dr. Richard Kradin that Ruth had asbestos exposure from two
sources—one her husband’s work clothing and “secondly by the application over
many years of the talcum powder product that was contaminated more probably
than not by asbestos.”

¶39 In response, Colgate argues that Dr. Moline and Dr. Kradin are
medical experts—they are not experts in testing and analyzing the contents of talc.
Colgate argues that Dr. Moline and Dr. Kradin do not offer opinions based on their
own expertise that Cashmere Bouquet contained asbestos. Rather, Colgate asserts
that Dr. Moline and Dr. Kradin merely summarize the work of others, Gordon and
Fitzgerald, and that Chapp is attempting to use them as a mere conduit for Gordon
and Fitzgerald’s opinions.12 Citing Walworth County v. Therese B., 2003
WI App 223, ¶9, 267 Wis. 2d 310, 671 N.W.2d 377, Colgate argues that “WIS.
STAT. § 907.03 does not give license to the proponent of an expert solely as a
conduit for the hearsay opinions of others.”

¶40 Chapp responds to Colgate’s argument stating that Wisconsin law,
WIS. STAT. § 907.03, expressly allows an expert to rely on inadmissible evidence
if of a type reasonably relied on by experts in the field in forming an opinion or
inference. The problem with Chapp’s argument is that § 907.03 only permits the
witness to rely on otherwise inadmissible data if the expert witness is testifying
within his or her expertise. See Green v. Smith & Nephew AHP, Inc., 2000
WI App 192, 238 Wis. 2d 477, 617 N.W.2d 881. As we explain below, neither

12
As noted earlier, Chapp listed Gordon and Fitzgerald as experts, but later removed
them from his expert witness list.

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No. 2018AP937

Dr. Moline nor Dr. Kradin are qualified to express opinions about whether
Cashmere Bouquet was tainted by asbestos during the time that Ruth was
allegedly exposed to asbestos in that product.

¶41 In her report, Dr. Moline states that she is a physician specializing in
the field of occupational and environmental disease. She explains that
occupational medicine is the field of medicine that deals with exposures to
substances, toxins, conditions, and agents in the workplace that are associated with
increased risks of diseases. She states that “[t]o put it simply, Occupational
Medicine and Preventive Medicine involves searching for and identifying causes
of diseases.” Nothing in Dr. Moline’s education, training or experience involved
analyzing talc powder or talc to determine whether any accessory minerals
including asbestos were present.

¶42 By contrast Colgate’s expert, Matthew Sanchez, Ph.D., describes
very complicated test and analysis procedures used to determine whether talc
contains asbestos.13 He describes the education, training, experience, and
technical equipment necessary for determining whether talc contains asbestos. He
states that the only analytical protocol currently recognized by the FDA for
certifying talc as “asbestos-free” for use in or on the body is the USP MONOGRAPH
FOR TALC. See UNITED STATES PHARMACOPEIA CONVENTION, UNITED STATES
PHARMACOPEIA 32:TALC (Aug. 1, 2011). He explains that the USP MONOGRAPH
FOR TALC requires testing by x-ray powder diffraction to determine if serpentine

13
This discussion of the nature of the methods of testing and analyzing talc for the
presence of asbestos is only to compare the expertise of those who actually analyze talc for the
presence of asbestos and Dr. Moline and Dr. Kradin’s expertise and knowledge about whether
Cashmere Bouquet contained asbestos.

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No. 2018AP937

or amphibole minerals are present and, when those minerals are detected, optical
microscopy is employed to determine whether the suspect minerals are asbestos or
non-asbestos based on the minerals’ morphology. He goes on to describe a variety
of other analytical tools for analyzing talc for asbestos—x-ray powder diffraction,
polarized light microscopy, and electron microscopy.

¶43 Sanchez also comments on the reliability of historical tests and
studies to determine whether asbestos was present in talc and criticizes the
methodology used in many of the tests. He then cites a 1986 review by the FDA
of whether cosmetic talcum powder should be affixed with a warning label:

During the early 1970s, FDA became concerned about the
possibility that cosmetic talc did contain significant
amounts of this material. The agency received several
reports about such contamination. However, at that time,
the analytical procedures for determining asbestos in talc
were not fully developed, and most of the analytical work
was conducted without scientific agreement as to which
methods were well-suited for the identification of
asbestiform minerals in talc. Consequently, FDA
considered all analytical results to be of questionable
reliability. This assessment proved to be correct because
many questions were subsequently raised about results
reported in the literature in the early 1970’s.

In other words, Sanchez’s report reflects how complicated the testing and analysis
procedures are for determining whether talc is contaminated by asbestos. Those
who are qualified to perform those tests and analysis have different education,
training, and experience not possessed by a physician. He also points out that
there have been disputes among experts in the field about how the testing and
analysis should be performed.

¶44 Several Wisconsin decisions address the issue of when an expert
may rely on inadmissible evidence under WIS. STAT. § 907.03. In Green, this

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No. 2018AP937

court held that pursuant to § 907.03, the trial court should not have admitted an
expert’s opinion that the latex gloves used were not safe. See id., 238 Wis. 2d
477, ¶24. Green claimed, and a jury found, that latex gloves manufactured by
Smith & Nephew were defective and unreasonably dangerous, and they were a
cause of damages Green suffered as a result of her allergic reaction to them. See
id., ¶1. On appeal Smith & Nephew asserted that it was entitled to either dismissal
of Green’s action or a new trial because, in part, the trial court erroneously
allowed an expert, Paul Cacioli, to testify that the latex gloves were not safe. Id.,
¶¶5, 18. Cacioli held a Ph.D. degree as a chemist and was employed as a Director
of Research and Development and Technical Affairs by the company that
purchased Smith & Nephew’s latex-glove business. Id., ¶19. The trial court read
a summary of excerpts from Cacioli’s deposition testimony to the jury, noting that
Cacioli believed that the latex gloves manufactured by Smith & Nephew had
“high” protein levels and that Cacioli “considered these levels unsafe and
unacceptable.” Id. (one set of quotation marks omitted).

¶45 Concluding that the trial court should not have admitted Cacioli’s
opinion that the latex gloves were not safe, this court stated:

This was Green’s syllogism: Cacioli is an expert in the
chemistry of making latex gloves, he wanted to make latex
gloves with lower protein levels … because he believed
gloves with lower protein levels were safer, thus he could
give an expert opinion that gloves with high protein levels
are less safe than gloves with low protein levels. This
argument implicates WIS. STAT. § 907.03, which permits an
expert witness to rely on inadmissible data if the data are
“of a type reasonably relied upon by experts in the
particular field in forming opinions or inference upon the
subject.” But this rule only permits the witness to rely on
otherwise inadmissible data (here, the opinions of unknown
persons who did not testify) if the expert witness is
testifying with his or her expertise. See Lemberger v.
Koehring Co., 63 Wis. 2d 210, 218, 216 N.W.2d 542, 546

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No. 2018AP937

(1974). A simple example will illustrate this point. If
Albert Einstein, an admitted expert on relativity, believes
that in working out his theories on a chalk board he should
use Brand X of chalk because he has heard that Brand X
contains less of a potentially harmful substance than does
Brand Y, Einstein’s opinion about chalk safety would not
be admissible in a products-liability lawsuit to prove that
Brand Y chalk was less safe than Brand X—the safety of
chalk is not within his area of expertise.

See Green, 238 Wis. 2d 477, ¶23.

¶46 Additionally, Lemberger v. Koehring Co., 63 Wis. 2d 210, 218, 216
N.W.2d 542 (1974), is instructive on this issue. Lemberger was a construction
worker who suffered a depressed skull fracture when a sixteen pound block of
wood fell from a crane and allegedly hit him on the head—he was not wearing a
hard hat when the injury occurred. See id. at 213, 215. Lemberger sued the
manufacturer of the crane and during the course of the trial, the manufacturer
presented testimony from neurologist Dr. Millen who gave his opinion that serious
injury would have been prevented if Lemberger had been wearing a hard hat.14 Id.
at 218.

¶47 Lemberger appealed the admission of that testimony. See id. at
217-18. The court ruled that the neurologist’s testimony exceeded his expertise:

[W]e see no basis for the admission of Dr. Millen’s
deposed testimony. Dr. Millen is a neurologist, who
specializes in psychology and the physical disorders of the
nervous system. He may well be an expert on personal
injuries, and it was agreed that he had some knowledge of
the basic laws of physics involving the forces asserted by
falling objects. He was permitted, however, to express the
opinion that, had Lemberger been wearing a hard hat,

14
Dr. Millen’s given name is not included in the decision. See Lemberger v.
Koehring Co., 63 Wis. 2d 210, 217-18, 216 N.W.2d 542 (1974).

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No. 2018AP937

serious injury would have been prevented. That opinion
was not within the field of Dr. Millen’s expertise …. He
had no expertise or special knowledge on the capacity of a
hard hat to withstand impact and to prevent a skull injury.
To the extent that Dr. Millen was permitted to testify as an
expert on the protective capacity of the hard hat, his
opinion was beyond his qualifications and should have
been excluded by the trial judge. He did not have “such
skill, knowledge or experience in that field or calling as to
make it appear that his opinion or inference will probably
aid the trier in his search for truth.”

See id. at 217-18 (citation and one set of quotation marks omitted).

¶48 It is apparent that the issue in this case—whether talc and
particularly, Cashmere Bouquet, contained asbestos—involves expert against
expert opinions. Thus, it is required that experts with the education, qualifications,
and experience in testing and analyzing whether talc is contaminated by asbestos,
be the ones who express opinions about the issue. An expert who is not qualified
to do so cannot attempt to use WIS. STAT. § 907.03 to act as a mere conduit to
introduce the testimony of a possibly qualified expert.

¶49 Based on that background, we conclude that Dr. Moline’s education,
training, and experience do not qualify her to express an opinion on whether
Cashmere Bouquet ever contained asbestos. Dr. Moline does not express her own
independent opinion that Cashmere Bouquet contained asbestos based on any
testing or analysis she did to determine whether Cashmere Bouquet ever contained
asbestos—she is not qualified to express such an opinion. Rather, Dr. Moline
merely parrots Gordon’s study. She cites, in detail, the methodology Gordon
describes in his study and further states that the product Gordon studied was
Cashmere Bouquet.

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No. 2018AP937

¶50 Colgate responded that the article by Gordon, cited by Dr. Moline,
never identifies Cashmere Bouquet as the brand of talc powder that he analyzed.
Chapp does not refute Colgate’s assertion in his reply and, therefore, concedes this
fact. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97,
109, 279 N.W.2d 493 (Ct. App. 1979) (stating that failure to refute an argument
constitutes a concession).

¶51 Clearly, Dr. Moline is not expressing her independent opinion based
upon any education, training, or experience that Cashmere Bouquet contained
asbestos—she is merely acting as a conduit for Gordon’s opinions. Thus, we
conclude that like the opinions of Caioli and Dr. Millen discussed above,
Dr. Moline’s opinion that Cashmere Bouquet contained asbestos was outside her
area of expertise.

¶52 For the same reasons, we conclude that Dr. Kradin’s opinion that
Cashmere Bouquet was contaminated by asbestos was outside his area of
expertise. In his expert report, Dr. Kradin states that he has specialized in
pulmonary medicine. He routinely reads the literature concerning fiber released
from various asbestos containing products. He is familiar with what has been
published with regard to the level of asbestos in ambient air. In his deposition
testimony in this case Dr. Kradin testified as follows:

I think the literature would indicate that much of the
material that is used in certainly Cashmere Bouquet is
contaminated, or was contaminated, and that more likely
than not, over the course of the time period that [Ruth] was
using these materials, she would have been exposed to
Cashmere Bouquet at levels that were well above
background.

(emphasis added.)

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No. 2018AP937

¶53 Dr. Kradin’s report and his testimony reflect that he has no
education, training or experience in testing or analyzing talc to determine if any
talc is contaminated by asbestos. He is merely relying on literature that he read
and at best he thinks the literature would indicate that Cashmere Bouquet was
contaminated during the time period that Ruth was using it. Clearly, he has no
independent scientific knowledge that Cashmere Bouquet was contaminated by
asbestos. Thus, we conclude that like the opinions of Caioli and Dr. Millen
discussed above, Dr. Kradin’s opinion that Cashmere Bouquet contained asbestos
was outside his area of expertise.

¶54 As noted, an expert who is not qualified to do so cannot attempt to
use WIS. STAT. § 907.03 to act as a mere conduit to introduce the testimony of a
possibly qualified expert. Thus, we conclude that both Dr. Moline and
Dr. Kradin’s opinions were not admissible under § 907.03.15 Therefore, the trial
court properly did not consider their opinions that the Cashmere Bouquet that Ruth
used was contaminated by asbestos.

CONCLUSION

¶55 For the reasons stated above, we conclude that the evidence on
causation was insufficient to remove the issue from the realm of speculation.
Therefore, we affirm the trial court’s summary judgment order.

15
Chapp also argues that, at the summary judgment stage, it is permissible for Dr. Moline
to rely on the evidence to support her opinions that cosmetic talc has routinely been shown to be
contaminated with asbestos. Chapp cites no authority for this argument and does not develop the
argument. Chapp’s assertion is not supported by any citation to legal authority and is not
developed. Thus, we decline to further consider the assertion. See State v. Pettit, 171 Wis. 2d
627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

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No. 2018AP937

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

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