A Wisconsin appeals court on Tuesday refused to reverse a widower's loss in a suit claiming a Colgate-Palmolive talcum powder product contributed to his late wife being diagnosed with mesothelioma, finding that he didn't show her use of the powder exposed her to asbestos.
Backing a lower court's award of summary judgment to Colgate-Palmolive Co., the three-judge Court of Appeals panel said that, at best, Dale Chapp showed it was possible his wife, Ruth, had been exposed to asbestos through her use of the company's Cashmere Bouquet talcum powder.
However, to infer a connection between Ruth's mesothelioma and Cashmere Bouquet, a fact-finder would have to pile "one possibility on top of another possibility," the panel said.
The panel noted that although there was evidence some Cashmere Bouquet talcum powder containers had asbestos, there was also evidence others did not.
"Chapp's evidence is not sufficient to permit a reasoned choice between alternative findings, one leading to liability and the other not," Judge Timothy G. Dugan wrote in the panel's opinion. "Any finding regarding Colgate's liability or the lack of liability would be based on speculation."
The panel also held that the lower court correctly didn't consider two of Chapp's expert medical witnesses' opinions that there had been asbestos in the Cashmere Bouquet used by Ruth. Neither of the experts — Jacqueline Moline and Richard Kradin — had "education, training or experience" in testing or analyzing talc to see if it contained asbestos, according to the panel.
Colgate's expert, Matthew Sanchez, on the other hand, described "very complicated test and analysis procedures used to determine whether talc contains asbestos," the panel said.
"In other words, Sanchez's report reflects how complicated the testing and analysis procedures are for determining whether talc is contaminated by asbestos," Judge Dugan wrote. "Those who are qualified to perform those tests and analysis have different education, training and experience not possessed by a physician."
Chapp had also named Imerys Talc America Inc
. and Cyprus Amax Minerals Co. as defendants in the case, the opinion said. But the appeal against Imerys is stayed while the company undergoes bankruptcy proceedings, and Chapp didn't appeal Cyprus' summary judgment win.
Counsel and representatives for the parties didn't immediately respond to requests for comment Tuesday.
Judges Joan F. Kessler, JoAnne F. Kloppenburg and Timothy G. Dugan sat on the panel for the Court of Appeals.
Chapp is represented by Michael W. Gill of Hale Skemp Hanson Skemp & Sleik
and Steven S. Schulte of Simon Greenstone Panatier PC
Colgate-Palmolive Co. is represented by Paul E. Benson, Lee M. Seese and Alexander M. DeGuire of Michael Best & Friedrich LLP
The case is Dale Chapp v. Colgate-Palmolive Co., case number 2018AP000937, in the Court of Appeals of the State of Wisconsin, District I.