By Pamela C. Maloney, J.D.
The causation evidence offered by a husband who brought home asbestos fibers on his clothing fell short of raising an inference that his wife’s exposure to asbestos from her use of Cashmere Bouquet talcum powder was a contributing cause of her death from mesothelioma.
The spouse of a woman who had been exposed to inhalable asbestos both from her daily use of asbestos-containing Cashmere Bouquet talcum powder and while laundering her husband’s work clothes failed to present credible evidence to raise a jury question as to whether the talc was contaminated with asbestos and, thus, was a contributing cause of her death from mesothelioma, a Wisconsin Court of Appeals ruled in a decision not recommended for publication (Chapp v. Colgate-Palmolive Co., August 27, 2019, Dugan, T.).
From 1969 through 1985, a woman used Cashmere Bouquet talcum powder, which was manufactured by Colgate-Palmolive Co., at least every day after she showered and occasionally when she was warm or anticipated that she would perspire. In 2013, the woman was diagnosed with malignant peritoneal mesothelioma, a type of mesothelioma that affects abdominal tissue. Her husband, who worked for a company that used welding rods and equipment that contained asbestos, filed a lawsuit against the manufacturer, setting forth claims for strict liability—design defect, strict liability—unreasonably dangerous products, negligence, negligence per se, and punitive damages. In his complaint, he alleged that the talc in Cashmere Bouquet contained asbestos, which was a contributing cause of his wife’s death. The complaint also contained his admission that his wife regularly had been 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. The trial court granted Colgate-Palmolive’s motion for summary judgment and the husband appealed.
Causation. According to the appellate court, there was no direct evidence that the talcum powder used by the deceased contained asbestos. Instead, the husband produced circumstantial evidence indicating that asbestos was found in some mines that supplied talc to the manufacturer and in some samples of the manufacturer’s talcum powder. As a result, in order to infer a link between the deceased’s mesothelioma and the talcum powder produced by Colgate, the factfinder would be required to pile the possibility that the manufacturer’s suppliers had provided talc containing asbestos to the manufacturer on top of the possibility that the manufacturer had filled its talcum powder containers with asbestos-containing talc, followed by the possibility that the containers of talcum powder purchased and used by the consumer had contained the tainted talc. At best, the facts and circumstances presented by the husband only led to the conclusion that it was possible that his wife had been exposed to asbestos in the talcum powder.
In addition, although there was evidence that some containers of the talcum powder contained asbestos, there also was evidence that other containers did not contain asbestos. Although the husband had argued that this evidence was sufficient to lead the factfinder to one of two inferences, the appellate court concluded that the evidence merely established that the probability his wife had used talcum powder that contained asbestos balanced evenly with the probability that she had used powder that was free of asbestos. Thus, the evidence was not sufficient to permit a factfinder to make a reasoned choice between alternative findings—one leading to liability and the other leading to a determination of non-liability. Therefore, the court concluded that any finding regarding the manufacturer’s liability would be based on speculation and that the trial court’s grant of summary judgment in the manufacturer’s favor was correct.
Expert testimony. The husband also claimed that the inference that his wife had been exposed to asbestos from her use of the manufacturer’s talcum powder was supported by two experts. The first was an occupational and environmental disease expert who had opined that to a reasonable degree of medical certainty, the wife’s exposure to asbestos-containing talcum powder and exposure to her husband’s asbestos-containing clothes led to the development of her mesothelioma. The second expert, who specialized in pulmonary medicine, concluded that the wife had been exposed to asbestos from two sources—her husband’s work clothing and the application over many years of the talcum powder product that was contaminated "more probably than not by asbestos."
However, nothing in either experts’ education, training, or experience involved analyzing talcum powder or talc to determine whether any accessory minerals, including asbestos, were present. The court agreed with the manufacturer’s assessment that the opinions of the husband’s experts—that Colgate’s talcum powder contained asbestos—was not based on their own expertise, but merely summarized the work of two other experts and was an attempt to introduce into the record the testimony of potentially qualified experts, which was prohibited under Wisconsin law.
In contrast, the manufacturer’s expert, who possessed the education, training, experience, and technical equipment necessary for determining whether talc contained asbestos, described in detail the very complicated testing and analysis procedures used to determine whether talc contained asbestos. The expert also commented on the reliability of historical tests and studies to determine whether asbestos was present in talc, criticized the methodology used in many of the tests, and pointed out the disputes among the experts in the field as to how to perform the testing and analysis of talc. In addition, he cited a 1986 review by the U.S. Food and Drug Administration of whether cosmetic talcum powder should have with a warning label.
Comparing the qualifications of the husband’s experts and the reliability of their opinions against those of the manufacturer’s expert, the appellate court concluded that the opinions of the husband’s experts fell outside their areas of expertise and, therefore, the trial court properly refused to consider their proffered testimony.
The case is Appeal No. 2018AP937.
Attorneys: Michael W. Gill (Hale Skemp Hanson Skemp & Sleik) for Dale Chapp. Paul E. Benson (Best & Friedrich LLP) for Colgate-Palmolive Co. Donna J. Vobornik (Dentons U.S. LLP) for Imerys Talc America Inc.
Companies: Colgate-Palmolive Co.; Imerys Talc America Inc.
MainStory: TopStory CausationNews ExpertEvidenceNews EvidentiaryNews AsbestosNews WisconsinNews
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