On December 10, 2020 a
Exhibit,Appendix
was filed
involving a dispute between
Patsy Young,
and
Aventis Inc.,
Avon Products, Inc.,
Block Drug Company, Inc.,
Block Drug Corporation,
Brenntag North America, Inc.,
Brenntag Specialties, Inc. F K A Mineral Pigment Solutions, Inc.,
Charles B. Chrystal Company, Inc.,
Chattem, Inc.,
Colgate-Palmolive Company,
Cyprus Amax Minerals Company,
Cyprus Mines Corporation,
Glaxosmithkline Llc (Sued Individually And As Successor-In-Interest To Block Drug Corporation, Successor-In-Interest To The Gold Bond Sterilizing Powder Company A K A The Gold Bond Company And As A Successor-In-Interest To Novartis Corporation And
Novartis Consumer Health Inc.),
Gsk Consumer Health, Inc. F K A Novartis Consumer Health Inc. F K A Ciba Self-Medication, Inc.,
Insight Pharmaceuticals Corporation, A Subsidiary Of Prestige Brands Holdings, Inc.,
Insight Pharmaceuticals Llc,
Macy'S Inc. F K A Federated Department Stores, Inc.,
Novartis Pharmaceuticals Corporation,
Prestige Brands Holdings, Inc.,
Prestige Consumer Healthcare Inc. F K A Prestige Brands, Inc.,
Sanofi-Aventis U.S. Llc,
Sanofi Us Services, Inc.,
Whittaker Clark & Daniels, Inc.,
for Torts - Asbestos
in the District Court of Erie County.
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EXHIBIT AA
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STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY
BRANCH 8
DALE CHAPP, individually and as personal representative of
the estate of RUTH CHAPP, deceased,
Plaintiff,
v. 0 APR 64 2018 O
BORG-WARNER MORSE TEC LLC (sued individually and as JOHN BARRETT
Clerk of Circuit Court
successor-in-interest to BORG-WARNER CORPORATION),
C&J FABRICATORS, INC.,
COLGATE-PALMOLIVE COMPANY, Case No: 15-CV-5887
BRENNTAG NORTH AMERICA, INC. (sued individually and
as successor-in-interest to MINERAL PIGMENT SOLUTIONS,
INC. and WHITTAKER CLARK & DANIELS, INC.),
BRENNTAG SPECIALTIES, INC. f/k/a MINERAL PIGMENT
SOLUTIONS, INC. (sued individually and as successor-in-
interest to WHITTAKER CLARK & DANIELS, INC.)
CYPRUS AMAX MINERALS COMPANY (sued individually,
doing business as successor to METROPOLITAN TALC CO.
INC. and CHARLES MATHIEU INC. and SIERRA TALC
COMPANY and UNITED TALC COMPANY)
IMERYS TALC AMERICA, INC. (sued individually and as
successor-in-interest to LUZENAC AMERICA, INC. and
CYPRUS INDUSTRIAL MINERALS COMPANY)
WHITTAKER CLARK & DANIELS, INC.,
Defendants.
DECISION AND FINAL ORDER
Before the Court are two motions for summary judgment: defendant Colgate Palmolive
Company's motion for summary judgment, and defendants Cyprus Amax Minerals Company
and Imerys Talc America, Inc.'s joint motion for summary judgment, both filed on September
1
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25, 2017. Plaintiff filed his second amended complaint on March 30, 2017, alleging that his
deceased wife Ruth Chapp was exposed to asbestos through her use of Cashmere Bouquet tale
powder from the 1960's through the 1980's.
defendants'
After thoroughly reviewing the record and for the reasons discussed below,
motions for summary judgment are granted because there are no genuine issues of material fact
and defendants are entitled to judgment as a matter of law. Defendant Cyprus Amax Minerals
Company is not the proper party to this case, and even if it were, plaintiff has not shown: more
than the mere possibility of causation to satisfy its negligence claim against Cyprus. Lik4wise,
plaintiff has not established causation as to the two other Colgate-
remaining defendants,
Palmolive and Imerys Talc America Inc. At this where and non-
Company stage, liability
liability are evenly balanced at best, the jury could only find causation by speculation and
conjecture.
BACKGROUND¹
Plaintiff's wife Ruth Chapp was diagnosed with mesothelioma on August 28, 2013, and
died on September 21, 2013. Plaintiff alleges that Ms. Chapp was directly exposed to respirable
asbestos from her daily use of Cashmere Bouquet tale powder from the 1960's through the
1980's and that this asbestos exposure was a contributing cause of Ms. Chapp's mesothelioma.
Ms. Chapp died before her deposition could be taken in this action. Plaintiff, however,
testified at his deposition that the first time he could remember his wife using Cashmere Bouquet
was in early 1969 when the two of them were dating. (Schulte Aff. Ex. 1 at 68:9-25.) Ms.
Chapp would use Cashmere Bouquet after her daily shower, and would apply additional amounts
anytime she felt warm or thought she would perspire. (Id. at 196:5-197:4.) The last time
plaintiff remembered his wife using Cashmere Bouquet was in the mid-1980's, when she
switched to different brands. (h/. at 186:11-187:7.) However, plaintiff does not have any of the
defendants'
Plaintiff submitted 250 pages of exhibits in opposition to motions, which is proper under
the local rules. See Wis. First Judicial Dist. Local R. 3.6(E) ("Unless the court grants permission in
writing and in advance. the clerk shall not accept for filing any afudavit, including exhibits, which
exceeds 250 pages in length, except affidavits in actions contesting insurance coverage to which the
attached exhibits consist only of insurance policy documents.").
Defendant Colgate far exceeded the page limit and submitted over a thousand pages of exhibits. The
Court has not relied upon any more than 250 pages worth of Colgate's exhibits in evaluating this motion
for summary judgment, so neither party has had the advantage of having more documents considered than
the other. This decision is not in any way controlled by the excess exhibits filed by Colgate and therefore
plaintiff has not been prejudiced by Colgate's submission of excess documents.
2
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actual Cashmere Bouquet product Ms. Chapp used, and does not know of anyone whp has
Cashmere Bouquet in their possession that is identical to what Ms. used. (Id. at 198:22-
Chapp
199:4.) Consequently, there has been no testing of the actual product Ms. Chapp used.
Plaintiff's second amended complaint contains allegations against several other
companies who allegedly sold, manufactured, and/or distributed asbestos-containing materials:
" Borg-Warner Morse - clutches designed to contain asbestos
intentionally
" C & J Fabricators - rods and equipment designed to
welding intentionally
contain asbestos
" Georgia Pacific LLC - joint compounds
asbestos-containing
" Honeywell International Inc. - friction products
asbestos-containing
" Miller Electric Manufacturing - rods
Company asbestos-containing welding
and welding equipment
The companies unrelated to the Cashmere Bouquet tale powder have been dismissed frorn this
case, leaving only Colgate (Cashmere Bouquet manufacturer) and Imerys Tale America and
Cyprus Amax Minerals Company (Colgate's tale suppliers).
It is undisputed that Cashmere Bouquet was not formulated to contain asbestos. Instead,
Cashmere Bouquet was formulated to contain cosmetic-grade tale, small amounts of perfume,
and anti-caking and anti-bacterial agents. Tale itself is not asbestos, but plaintiff alleges that the
tale used within Cashmere Bouquet contained asbestos. (See DeQuire Aff. Ex. 19.)
Asbestos is a naturally occurring mineral substance that can be pulled into a fluffy
consistency. Asbestos fibers are soft and flexible yet resistant to heat, electricity, and chemical
corrosion making it an effective insulator. Asbestos fibers can also be mixed into cloth, paper,
cement, plastic and other materials to make them stronger. Asbestos is not a single type of
mineral-rather, the term refers to a group of silicate minerals that share the same fibrous nature.
(Sanchez Aff. Ex. 16 at 4-5.) There are six different types of asbestos that fall within two
categories:
Serpentine asbestos: Amphibole asbestos:
1. Chrysotile 2. Crocidolite
3. Amosite
4. Anthophyllite
5. Tremolite
6. Actinolite
(1d.)
Colgate manufactured, supplied, and/or delivered Cashmere Bouquet talc powder from
3
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1871 to 1995. (PI.'s Resp. to Imery/Cyprus MSJ, Schulte Aff. Ex. 3 at 2.) In the time period
relevant to this action, Colgate obtained the talc used in Cashmere Bouquet from three sources:
Italy, North Carolina, and Montana. ( Id. at Ex. 4 at 6.) Until 1968, Colgate sourced its tale
exclusively from Italian mines, and in subsequent years also used talc from mines in North
Carolina and Montana. ( Id.)
Colgate's Italian tale came from the Piedmont region of Italy, from the Val Chisone/Val
Germanasca mines (hereinafter "Italian mines"). Plaintiff alleges that Italian talc contained
asbestos during the years Ms. Chapp was allegedly exposed. However, some of the evidence
provided by plaintiff cannot be relied upon at summary judgment because it is inadmissible
evidence.2
The following are allegations that would be admissible as evidence at trial, and thus
can be relied upon for purposes of summary judgment.
" 1968 - James-Manville found a trace of tremolite in a sample of Cashmere
Bouquet. (Pl.'s Resp. to Colgate MSJ, Schulte Aff. Ex. 3.)
" 1971 - Walter C. McCrone Associates found two fibers in one sample of
chrysotile,"
Italian talc that "appeared to have the morphology of but "could
such"
not be identified as because "[i]t is possible that some form of
contamination either in processing or in handling could lead to this level of
chrysotile."
( Id. at Ex. 31.)
" 1972 - ES Laboratories found chrysotile in Italian tale. (1d. at Ex. 32.)
" 1972 - Dr. Lewin at NYU found "features in its pattern that suggested
x-ray
that [the Italian tale sample] might contain some tremolite, . . Both tremolite
and chrysotile fibers were found to be present in this sample. It is estimated
that the tremolite content is about 2% by weight, and the chrysotile about
0.5%."
( Id. at Ex. 5, 6, 19.)
2
Mr. Fitzgerald and Mr. Gordon have been removed from plaintiff's expert witness list, so defendants
argue that the Court cannot consider their expert reports submitted in this case. To avoid summary
judgment, a plaintiff can only rely on admissible evidence. Wis. Stat. § 802.08(3). Without Dr.
Fitzgerald or Dr. Gordon's testimony, their withdrawn expert reports are hearsay. Schultz v. Sykes, 2001
W1 App 255, ¶ 52, 248 Wis.2d 746 ("An expert report is hearsay and cannot be accepted into evidence
unless it falls into one of the hearsay exceptions."). None of the hearsay exceptions apply to admit the
reports. See Wis. Stat § 908.03 (the public records exception requires that the investigation be made
pursuant to law; the learned treatise exception requires the document to be published). Thus, Dr.
Fitzgerald and Dr. Gordon's expert reports are inadmissible hearsay without their testimony at trial to
corroborate them. The Court will disregard these reports.
4
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" 1972 - Pfizer found < 0.5% tremolite in Italian talc: "TEM found a very
occasional fiber which [they] suspect to be asbestos but the level of detection
less."
would be around 0.1% or (/d. at Ex. 34.)
" 1973 - Johns-Manville found chrysotile in Italian cosmetic tale. (/d. at Ex.
35.)
" 1973 - U. Conn. and Fullam Labs found 1% chrysotile and 0.15% tremolite in
Italian tale. (/d. at Ex. 8.)
" 1976 - of Tale Minors and Millers found "little amount of
Mortality Study
tremolite"
in Italian ore. Rubino, et al., Mortality Study of Tale Miners and
Millers, J. Occup. Med., March 1976.
" 1976 - Dr. Langer at Mount Sinai School of Medicine reported the presence
of tremolite and/or anthophyllite in Cashmere Bouquet. (PI.'s Resp. to
Colgate MSJ, Schulte Aff. Ex. 9.)
" 1976 - Colgate (through its own internal found a sample of Cashmere
testing)
anthophyllite"
Bouquet to "slightly indicate the presence of tremolite and but
confirmation."
noted that it "need[ed] microscopic (/d. at Ex. 20.)
- tremolite"
" 1977 McCrone Associates found "a small amount of present in
Italian tale. (/d. at Ex. 41.)
" 1979 - Pfizer found < 0.1% fibrous tremolite in Italian talc. (/d. at Ex. 42.)
" 2017 - MVA Scientific Consultants found amphibole fibers in 11 of 13
samples analyzed from the Fontane mine in Italy, ranging from 0.00002% to
0.68% by weight. (/d. at Ex. 43.)
There has also been asbestos found in Italian mines during other testing completed after the
1980's. See Ilgren, Critical reappraisal of Balangero chrysotile and mesothelioma risk,
EPlDEMIOLOGY BlOSTATISTICS AND Pusuc HEALTH, Vol. 12, No. 1 (2015) (/d. at Ex. 45.).
The Italian mines have also been tested throughout the same time frame and found to
mineral[s]"
contain no asbestos. Dr. Fred Pooley detected "[n]o amphibole or chrysotile in fifty
samples in the early 1970's. (DeGuire Aff. Ex. 18 at 123-24.) The EPA, in its Health
Assessment Document for Tale, described Italian tale as "pure . . . no amphibole or chrysotile . . .
detected."
(/d. at Ex. 19 at 3-35.) A 1991 peer-reviewed study by Dr. Alice Blount, from
Rutgers University, similarly examined talc from Val Germanasca and found no asbestos. (/d. at
5
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Ex. 20.) The Italian tale mines are still open and producing cosmetic talc today. (Sanchez Aff.
Ex. 16 at 20.)
As to the North Carolina and Montana tale mines, plaintiff provides evidence of asbestos
contamination via Colgate's internal testing and research findings, (Pl.'s Resp. to Colgate MSJ,
Schulte Aff. Ex. 17-20.) Defendants disagree, alleging that "[t]he only tests of the [North
asbestos-free"
Carolina] mine reported in the scientific literature found its tale to be and that the
minerals."
"talc from Montana does not contain asbestos forming (Colgate's Br. at 7.)
There is some evidence that certain samples of Cashmere Bouquet contained asbestos. In
1968, the Johns-Manville Corporation found asbestos in a sample of Cashmere Bouquet.
(Schulte Aff. Ex. 3.) In 1972, results were submitted to the FDA indicating a finding of 2%
chrysotile asbestos in Cashmere Bouquet. (/d. at Ex. 5-6.) Associate Professor of Minerology at
Mt. Sinai School of Medicine, Professor Langer, found 20% asbestos in a sample of Cashmere
Bouquet. (/d. at Ex. 9.) However, witnesses knowledgeable about Colgate's internal testing
protocol have testified that there was no instance in which the tale used in Cashmere Bouquet
was found to be contaminated with asbestos because talc was held back from production until it
tested clean. (DeGuire Aff. Ex. 44 at 20-25; Ex. 48 at 1385-87; see also DeGuire Aff. Ex. 47 at
255-57; Ex. 42 at 137-38; Ex. 45 at 250-51.)
Defendants Cyprus AMAX Minerals Company ("CAMC") and Imerys did not sell the
tale used by Colgate in its Cashmere Bouquet. (Pl.'s Resp. to Imerys/Cyprus MSJ, Schulte Aff.
Ex. 4.) Instead, Defendants CAMC and lmerys are part of this case as alleged successors in
interest to Colgate's talc supplier, Charles Mathieu. (/d.) From 1940-1979, Colgate purchased
tale from Charles Mathieu. (/d.) In 1979, Cyprus Industrial Minerals Company purchased the
assets of Charles Mathieu, and continued to supply Colgate with tale for use in Cashmere
Bouquet. (/d.) Plaintiff alleges that defendant CAMC is the successor
Preview
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 03/03/2023 EXHIBIT AA FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 03/03/2023 NYSCEF DOC. NO. 582 RECEIVED NYSCEF: 06/18/2018 STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY BRANCH 8 DALE CHAPP, individually and as personal representative of the estate of RUTH CHAPP, deceased, Plaintiff, v. 0 APR 64 2018 O BORG-WARNER MORSE TEC LLC (sued individually and as JOHN BARRETT Clerk of Circuit Court successor-in-interest to BORG-WARNER CORPORATION), C&J FABRICATORS, INC., COLGATE-PALMOLIVE COMPANY, Case No: 15-CV-5887 BRENNTAG NORTH AMERICA, INC. (sued individually and as successor-in-interest to MINERAL PIGMENT SOLUTIONS, INC. and WHITTAKER CLARK & DANIELS, INC.), BRENNTAG SPECIALTIES, INC. f/k/a MINERAL PIGMENT SOLUTIONS, INC. (sued individually and as successor-in- interest to WHITTAKER CLARK & DANIELS, INC.) CYPRUS AMAX MINERALS COMPANY (sued individually, doing business as successor to METROPOLITAN TALC CO. INC. and CHARLES MATHIEU INC. and SIERRA TALC COMPANY and UNITED TALC COMPANY) IMERYS TALC AMERICA, INC. (sued individually and as successor-in-interest to LUZENAC AMERICA, INC. and CYPRUS INDUSTRIAL MINERALS COMPANY) WHITTAKER CLARK & DANIELS, INC., Defendants. DECISION AND FINAL ORDER Before the Court are two motions for summary judgment: defendant Colgate Palmolive Company's motion for summary judgment, and defendants Cyprus Amax Minerals Company and Imerys Talc America, Inc.'s joint motion for summary judgment, both filed on September 1 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 03/03/2023 NYSCEF DOC. NO. 582 RECEIVED NYSCEF: 06/18/2018 25, 2017. Plaintiff filed his second amended complaint on March 30, 2017, alleging that his deceased wife Ruth Chapp was exposed to asbestos through her use of Cashmere Bouquet tale powder from the 1960's through the 1980's. defendants' After thoroughly reviewing the record and for the reasons discussed below, motions for summary judgment are granted because there are no genuine issues of material fact and defendants are entitled to judgment as a matter of law. Defendant Cyprus Amax Minerals Company is not the proper party to this case, and even if it were, plaintiff has not shown: more than the mere possibility of causation to satisfy its negligence claim against Cyprus. Lik4wise, plaintiff has not established causation as to the two other Colgate- remaining defendants, Palmolive and Imerys Talc America Inc. At this where and non- Company stage, liability liability are evenly balanced at best, the jury could only find causation by speculation and conjecture. BACKGROUND¹ Plaintiff's wife Ruth Chapp was diagnosed with mesothelioma on August 28, 2013, and died on September 21, 2013. Plaintiff alleges that Ms. Chapp was directly exposed to respirable asbestos from her daily use of Cashmere Bouquet tale powder from the 1960's through the 1980's and that this asbestos exposure was a contributing cause of Ms. Chapp's mesothelioma. Ms. Chapp died before her deposition could be taken in this action. Plaintiff, however, testified at his deposition that the first time he could remember his wife using Cashmere Bouquet was in early 1969 when the two of them were dating. (Schulte Aff. Ex. 1 at 68:9-25.) Ms. Chapp would use Cashmere Bouquet after her daily shower, and would apply additional amounts anytime she felt warm or thought she would perspire. (Id. at 196:5-197:4.) The last time plaintiff remembered his wife using Cashmere Bouquet was in the mid-1980's, when she switched to different brands. (h/. at 186:11-187:7.) However, plaintiff does not have any of the defendants' Plaintiff submitted 250 pages of exhibits in opposition to motions, which is proper under the local rules. See Wis. First Judicial Dist. Local R. 3.6(E) ("Unless the court grants permission in writing and in advance. the clerk shall not accept for filing any afudavit, including exhibits, which exceeds 250 pages in length, except affidavits in actions contesting insurance coverage to which the attached exhibits consist only of insurance policy documents."). Defendant Colgate far exceeded the page limit and submitted over a thousand pages of exhibits. The Court has not relied upon any more than 250 pages worth of Colgate's exhibits in evaluating this motion for summary judgment, so neither party has had the advantage of having more documents considered than the other. This decision is not in any way controlled by the excess exhibits filed by Colgate and therefore plaintiff has not been prejudiced by Colgate's submission of excess documents. 2 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 03/03/2023 NYSCEF DOC. NO. 582 RECEIVED NYSCEF: 06/18/2018 actual Cashmere Bouquet product Ms. Chapp used, and does not know of anyone whp has Cashmere Bouquet in their possession that is identical to what Ms. used. (Id. at 198:22- Chapp 199:4.) Consequently, there has been no testing of the actual product Ms. Chapp used. Plaintiff's second amended complaint contains allegations against several other companies who allegedly sold, manufactured, and/or distributed asbestos-containing materials: " Borg-Warner Morse - clutches designed to contain asbestos intentionally " C & J Fabricators - rods and equipment designed to welding intentionally contain asbestos " Georgia Pacific LLC - joint compounds asbestos-containing " Honeywell International Inc. - friction products asbestos-containing " Miller Electric Manufacturing - rods Company asbestos-containing welding and welding equipment The companies unrelated to the Cashmere Bouquet tale powder have been dismissed frorn this case, leaving only Colgate (Cashmere Bouquet manufacturer) and Imerys Tale America and Cyprus Amax Minerals Company (Colgate's tale suppliers). It is undisputed that Cashmere Bouquet was not formulated to contain asbestos. Instead, Cashmere Bouquet was formulated to contain cosmetic-grade tale, small amounts of perfume, and anti-caking and anti-bacterial agents. Tale itself is not asbestos, but plaintiff alleges that the tale used within Cashmere Bouquet contained asbestos. (See DeQuire Aff. Ex. 19.) Asbestos is a naturally occurring mineral substance that can be pulled into a fluffy consistency. Asbestos fibers are soft and flexible yet resistant to heat, electricity, and chemical corrosion making it an effective insulator. Asbestos fibers can also be mixed into cloth, paper, cement, plastic and other materials to make them stronger. Asbestos is not a single type of mineral-rather, the term refers to a group of silicate minerals that share the same fibrous nature. (Sanchez Aff. Ex. 16 at 4-5.) There are six different types of asbestos that fall within two categories: Serpentine asbestos: Amphibole asbestos: 1. Chrysotile 2. Crocidolite 3. Amosite 4. Anthophyllite 5. Tremolite 6. Actinolite (1d.) Colgate manufactured, supplied, and/or delivered Cashmere Bouquet talc powder from 3 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 03/03/2023 NYSCEF DOC. NO. 582 RECEIVED NYSCEF: 06/18/2018 1871 to 1995. (PI.'s Resp. to Imery/Cyprus MSJ, Schulte Aff. Ex. 3 at 2.) In the time period relevant to this action, Colgate obtained the talc used in Cashmere Bouquet from three sources: Italy, North Carolina, and Montana. ( Id. at Ex. 4 at 6.) Until 1968, Colgate sourced its tale exclusively from Italian mines, and in subsequent years also used talc from mines in North Carolina and Montana. ( Id.) Colgate's Italian tale came from the Piedmont region of Italy, from the Val Chisone/Val Germanasca mines (hereinafter "Italian mines"). Plaintiff alleges that Italian talc contained asbestos during the years Ms. Chapp was allegedly exposed. However, some of the evidence provided by plaintiff cannot be relied upon at summary judgment because it is inadmissible evidence.2 The following are allegations that would be admissible as evidence at trial, and thus can be relied upon for purposes of summary judgment. " 1968 - James-Manville found a trace of tremolite in a sample of Cashmere Bouquet. (Pl.'s Resp. to Colgate MSJ, Schulte Aff. Ex. 3.) " 1971 - Walter C. McCrone Associates found two fibers in one sample of chrysotile," Italian talc that "appeared to have the morphology of but "could such" not be identified as because "[i]t is possible that some form of contamination either in processing or in handling could lead to this level of chrysotile." ( Id. at Ex. 31.) " 1972 - ES Laboratories found chrysotile in Italian tale. (1d. at Ex. 32.) " 1972 - Dr. Lewin at NYU found "features in its pattern that suggested x-ray that [the Italian tale sample] might contain some tremolite, . . Both tremolite and chrysotile fibers were found to be present in this sample. It is estimated that the tremolite content is about 2% by weight, and the chrysotile about 0.5%." ( Id. at Ex. 5, 6, 19.) 2 Mr. Fitzgerald and Mr. Gordon have been removed from plaintiff's expert witness list, so defendants argue that the Court cannot consider their expert reports submitted in this case. To avoid summary judgment, a plaintiff can only rely on admissible evidence. Wis. Stat. § 802.08(3). Without Dr. Fitzgerald or Dr. Gordon's testimony, their withdrawn expert reports are hearsay. Schultz v. Sykes, 2001 W1 App 255, ¶ 52, 248 Wis.2d 746 ("An expert report is hearsay and cannot be accepted into evidence unless it falls into one of the hearsay exceptions."). None of the hearsay exceptions apply to admit the reports. See Wis. Stat § 908.03 (the public records exception requires that the investigation be made pursuant to law; the learned treatise exception requires the document to be published). Thus, Dr. Fitzgerald and Dr. Gordon's expert reports are inadmissible hearsay without their testimony at trial to corroborate them. The Court will disregard these reports. 4 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 03/03/2023 NYSCEF DOC. NO. 582 RECEIVED NYSCEF: 06/18/2018 " 1972 - Pfizer found < 0.5% tremolite in Italian talc: "TEM found a very occasional fiber which [they] suspect to be asbestos but the level of detection less." would be around 0.1% or (/d. at Ex. 34.) " 1973 - Johns-Manville found chrysotile in Italian cosmetic tale. (/d. at Ex. 35.) " 1973 - U. Conn. and Fullam Labs found 1% chrysotile and 0.15% tremolite in Italian tale. (/d. at Ex. 8.) " 1976 - of Tale Minors and Millers found "little amount of Mortality Study tremolite" in Italian ore. Rubino, et al., Mortality Study of Tale Miners and Millers, J. Occup. Med., March 1976. " 1976 - Dr. Langer at Mount Sinai School of Medicine reported the presence of tremolite and/or anthophyllite in Cashmere Bouquet. (PI.'s Resp. to Colgate MSJ, Schulte Aff. Ex. 9.) " 1976 - Colgate (through its own internal found a sample of Cashmere testing) anthophyllite" Bouquet to "slightly indicate the presence of tremolite and but confirmation." noted that it "need[ed] microscopic (/d. at Ex. 20.) - tremolite" " 1977 McCrone Associates found "a small amount of present in Italian tale. (/d. at Ex. 41.) " 1979 - Pfizer found < 0.1% fibrous tremolite in Italian talc. (/d. at Ex. 42.) " 2017 - MVA Scientific Consultants found amphibole fibers in 11 of 13 samples analyzed from the Fontane mine in Italy, ranging from 0.00002% to 0.68% by weight. (/d. at Ex. 43.) There has also been asbestos found in Italian mines during other testing completed after the 1980's. See Ilgren, Critical reappraisal of Balangero chrysotile and mesothelioma risk, EPlDEMIOLOGY BlOSTATISTICS AND Pusuc HEALTH, Vol. 12, No. 1 (2015) (/d. at Ex. 45.). The Italian mines have also been tested throughout the same time frame and found to mineral[s]" contain no asbestos. Dr. Fred Pooley detected "[n]o amphibole or chrysotile in fifty samples in the early 1970's. (DeGuire Aff. Ex. 18 at 123-24.) The EPA, in its Health Assessment Document for Tale, described Italian tale as "pure . . . no amphibole or chrysotile . . . detected." (/d. at Ex. 19 at 3-35.) A 1991 peer-reviewed study by Dr. Alice Blount, from Rutgers University, similarly examined talc from Val Germanasca and found no asbestos. (/d. at 5 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 03/03/2023 NYSCEF DOC. NO. 582 RECEIVED NYSCEF: 06/18/2018 Ex. 20.) The Italian tale mines are still open and producing cosmetic talc today. (Sanchez Aff. Ex. 16 at 20.) As to the North Carolina and Montana tale mines, plaintiff provides evidence of asbestos contamination via Colgate's internal testing and research findings, (Pl.'s Resp. to Colgate MSJ, Schulte Aff. Ex. 17-20.) Defendants disagree, alleging that "[t]he only tests of the [North asbestos-free" Carolina] mine reported in the scientific literature found its tale to be and that the minerals." "talc from Montana does not contain asbestos forming (Colgate's Br. at 7.) There is some evidence that certain samples of Cashmere Bouquet contained asbestos. In 1968, the Johns-Manville Corporation found asbestos in a sample of Cashmere Bouquet. (Schulte Aff. Ex. 3.) In 1972, results were submitted to the FDA indicating a finding of 2% chrysotile asbestos in Cashmere Bouquet. (/d. at Ex. 5-6.) Associate Professor of Minerology at Mt. Sinai School of Medicine, Professor Langer, found 20% asbestos in a sample of Cashmere Bouquet. (/d. at Ex. 9.) However, witnesses knowledgeable about Colgate's internal testing protocol have testified that there was no instance in which the tale used in Cashmere Bouquet was found to be contaminated with asbestos because talc was held back from production until it tested clean. (DeGuire Aff. Ex. 44 at 20-25; Ex. 48 at 1385-87; see also DeGuire Aff. Ex. 47 at 255-57; Ex. 42 at 137-38; Ex. 45 at 250-51.) Defendants Cyprus AMAX Minerals Company ("CAMC") and Imerys did not sell the tale used by Colgate in its Cashmere Bouquet. (Pl.'s Resp. to Imerys/Cyprus MSJ, Schulte Aff. Ex. 4.) Instead, Defendants CAMC and lmerys are part of this case as alleged successors in interest to Colgate's talc supplier, Charles Mathieu. (/d.) From 1940-1979, Colgate purchased tale from Charles Mathieu. (/d.) In 1979, Cyprus Industrial Minerals Company purchased the assets of Charles Mathieu, and continued to supply Colgate with tale for use in Cashmere Bouquet. (/d.) Plaintiff alleges that defendant CAMC is the successor