Possibility of Exposure to Asbestos in Cosmetic Talc Not Sufficient to Survive Summary Judgment Courts of Appeals of Wisconsin, August 27, 2019
WISCONSIN – The plaintiff, Dale Chapp, filed suit against Colgate Palmolive arguing that his late wife, Ruth Chapp, developed mesothelioma from her use of Cashmere Bouquet talcum powder from approximately 1969-the mid-1980s. The plaintiff also alleged that Ruth Chapp was secondarily exposed to asbestos from laundering his work clothes. Colgate moved for summary judgment. The trial court found that Chapp had “not shown more than the mere possibility of causation” and granted summary judgment in factor of Colgate. The plaintiff appealed.
On appeal, the court noted the standard for review was de novo. The plaintiff contended that the trial court erred in granting summary judgment because it could have been inferred that the plaintiff used some Cashmere Bouquet that was contaminated with asbestos. Specifically, the plaintiff relied on prior scientific testing that showed that some samples of talc which came from supply mines contained certain amounts of asbestos. Additionally, the plaintiff relied upon his expert, Dr. Jacqueline Moline, who opined that Chapp “suffered and died” from mesothelioma as a result of exposure to asbestos. Colgate countered that Chapp’s evidence only raised a possibility of exposure.
The court began its discussion on the standard for summary judgment. According to the court, summary judgment is appropriate when no genuine dispute of material fact exists. The court quickly affirmed the trial court’s holding. As for causation, the court noted that causation is a fact. Here, the plaintiff’s use of Cashmere Bouquet was apparent. However, nothing offered by the plaintiff linked any potentially contaminated talc to any of the Cashmere Bouquet used by the plaintiff. At best, the plaintiff’s argument “would require piling one possibility on top of another possibility,” according to the court. The court was also unpersuaded by the argument that Dr. Moline’s affidavit created a dispute of fact. The court stated that “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 the opinions of others. Dr. Kradin’s testimony was also found to be focused on literature as opposed to the testing of the talc itself. On the other hand, Colgate’s expert explained the complicated testing and analysis procedures implemented to conclude whether or not the talc contained asbestos. The court, therefore, affirmed the grant of summary judgment as the plaintiff’s argument was speculative.
Read the case decision here.