COURT OF APPEALS 

DECISION 

DATED AND FILED

August 27, 2019 

Sheila T. Reiff 

Clerk of Court of Appeals 

 

NOTICE 

 This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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 

2 

¶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. 
No. 2018AP937 

3 

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 
No. 2018AP937 

4 

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. 
No. 2018AP937 

5 

¶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. 
No. 2018AP937 

6 

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. 
No. 2018AP937 

7 

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. 
No. 2018AP937 

8 

 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. 
No. 2018AP937 

9 

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. 
No. 2018AP937 

10 

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. 
No. 2018AP937 

11 

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. 
No. 2018AP937 

12 

¶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. 
No. 2018AP937 

13 

¶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). 
No. 2018AP937 

14 

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 
No. 2018AP937 

15 

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. 
No. 2018AP937 

16 

¶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 “asbestoscontaining” talcum powder and exposure to her husband’s “asbestos-containing” 
No. 2018AP937 

17 

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. 
No. 2018AP937 

18 

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. 
No. 2018AP937 

19 

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 
No. 2018AP937 

20 

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 
No. 2018AP937 

21 

(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). 
No. 2018AP937 

22 

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. 
No. 2018AP937 

23 

¶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.) 
No. 2018AP937 

24 

¶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). 
No. 2018AP937 

25 

By the Court.—Order affirmed. 

 Not recommended for publication in the official reports.