McNeal v. Whittaker, Clark & Daniels

Filed 7/5/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

WILLIE McNEAL, JR., B313472

Plaintiff and Respondent,
Los Angeles County
v. Super. Ct. No. BC698965

WHITTAKER, CLARK &
DANIELS, INC.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County. Stephen M. Moloney, Judge. Judgment
reversed to the extent it awards punitive damages.
Simpson Thacher & Bartlett, Chet A. Kronenberg, Jacob
Waschak; Berkes Crane Robinson & Seal, Viiu Spangler Khare
and Robert H. Berkes for Defendant and Appellant.
Kazan, McClain, Satterley & Greenwood, Denyse F.
Clancy, Michael T. Stewart; Simon Greenstone Panatier and
Stuart J. Purdy for Plaintiff and Respondent.
__________________________________
 SUMMARY
A jury awarded punitive damages to a plaintiff who was
diagnosed with mesothelioma, caused in part by his use of Old
Spice talcum powder for many years, ending in 1980. Defendant
was the supplier of the talc in Old Spice that contained asbestos
fibers. Defendant does not contest the jury’s verdict finding it
was negligent and otherwise responsible for the harm to plaintiff.
Defendant contends only that the evidence was insufficient to
establish any officer, director or managing agent acted with the
malice, oppression or fraud necessary for an award of punitive
damages.
We agree and reverse the award of punitive damages.
FACTS
1. The Background
Plaintiff Willie McNeal, Jr., was exposed to asbestos from
several sources, and he was diagnosed with mesothelioma in
December 2017. The jury found his asbestos exposure included
the use of Old Spice talcum powder on a daily basis from 1958 to
1980, except for one year while he was in Vietnam.
Talc is a naturally occurring mineral with cosmetic uses.
Asbestos, a known carcinogen when inhaled, is also a naturally
occurring mineral. When talc is mined, it sometimes contains
asbestos (called “asbestiform minerals”). The asbestiform
minerals that may be found in cosmetic talcs are chrysotile and
tremolite. Plaintiff’s expert, Dr. Longo, explained that “the
asbestos in cosmetic talc, like a lot of talcs, is minerals. It’s—it’s
what forms along with the talc, and it’s usually in very trace
levels.” Questions about the potential contamination of talc with
asbestos were raised by 1971, but the connection between talcum
powder and mesothelioma was not discovered until 1994.

2
 After his diagnosis, plaintiff sued several defendants,
including Whittaker, Clark & Daniels, Inc. (Whittaker or
defendant). Whittaker was a distributor of minerals and
pigments, including talc, until 2004. As relevant here, Whittaker
supplied talc to Shulton, Inc., a company that used it in Old Spice
talcum powder. The predominant source of the talc Whittaker
supplied to Shulton came from a North Carolina mine owned by
Hitchcock Corporation.
Whittaker was the only remaining defendant at the time of
trial. The jury concluded, among other things, that plaintiff was
exposed to asbestos from the talc Whittaker supplied to Shulton,
and that Whittaker was partly (42 percent) responsible for
plaintiff’s mesothelioma. The jury assigned 15 percent
responsibility to Shulton, 8 percent to Hitchcock, and the rest to
causes other than talc (30 percent to automotive brakes and
5 percent to Kent cigarettes).
The jury found economic damages of $1,067,719, and
noneconomic damages of $750,000. The judgment against
Whittaker for compensatory damages totaled $448,761.10
(economic damages reduced to $133,761.10 because of preverdict
settlements paid by other entities, and noneconomic damages
reduced due to Whittaker’s 42 percent share of responsibility to
$315,000).
The jury also found Whittaker acted with malice,
oppression or fraud, and awarded an additional $3 million in
punitive damages. The court entered judgment on the jury’s
verdict on May 4, 2021, and Whittaker filed a timely notice of
appeal.
Whittaker does not challenge the jury’s findings that it was
negligent and its negligence was a substantial factor in causing

3
harm to plaintiff. Nor does defendant challenge any other
findings of liability (strict liability for a manufacturing defect, a
design defect, and failure to warn) supporting the jury’s award of
compensatory damages. Consequently, we assume defendant
was negligent and focus on the evidence relevant to whether the
conduct of defendant’s officers, directors or managing agents
showed they were aware of the probable dangerous consequences
of their conduct and willfully failed to avoid those consequences.
We will first identify the individuals who played a
significant role in the case, defendant’s executives during the
pertinent events, witnesses, and other relevant actors, and we
will describe testimony from two corporate representatives. Then
we will summarize plaintiff’s theory of the case for punitive
damages, followed by a description of documentary evidence
plaintiff contends supports the award.
2. The Relevant Actors
Several Whittaker executives were involved in defendant’s
actions during the 1970’s, the critical period in this case.
Plaintiff’s exposure to Old Spice ended in 1980.
George Dippold became vice president of Whittaker in 1974
or 1975. Before that he worked for defendant as a lab technician
for 15 years, and became product manager in 1970 or 1971. In
1973 or 1974, he also became assistant secretary of the company
and a member of the board of directors, and was vice president
and on the board of directors at the time of his testimony.
Frederick F. Roesch was the executive vice president of
Whittaker and served on its executive committee. He was with
the company when Mr. Dippold started in 1949. Mr. Roesch
represented defendant at industry meetings with the Food and
Drug Administration (FDA). He was a member of the Talc

4
Subcommittee of the Cosmetic, Toiletry and Fragrance
Association (CTFA), a trade association for the industry.
C.U. (Larry) Driscoll is described by defendant as a
Whittaker executive. Defendant’s trial exhibit 8081 is a letter
from Hitchcock Corporation that refers to Mr. Driscoll as
defendant’s president. And, as we describe below, in August 1972
Mr. Roesch reported to Mr. Driscoll on an industry meeting with
the FDA on talc contamination with asbestos.
Ray Krammes was the manager of technical services at
Whittaker; he represented defendant at various CTFA meetings.
John Woodruff was “an executive at Whittaker”; his position is
not further specified.
Among the Whittaker personnel just identified, only
Mr. Dippold testified at trial, by way of deposition. He described
Whittaker’s business, including the distribution of talc, and the
scope of its business nationally and internationally. His positions
with Whittaker always required him to be “intimately familiar
with the nature and types of products” that Whittaker
distributed.
Seymour Z. Lewin was a professor of chemistry at New
York University and an internationally recognized expert on
mineralogical chemistry. In the early 1970’s, he performed
analyses of talc samples for the FDA, as well as others, including
samples Mr. Dippold sent him, and found asbestos in talc
samples (as further described, post). He was not a witness.
3. Corporate Testimony
Two witnesses testified as corporate representatives of
defendant, to speak to the issues surrounding asbestos in talc.
They were not involved in defendant’s conduct during the
relevant time period.

5
 Dennis St. George testified by video deposition. He
testified that beginning in the early 1970’s, defendant understood
“from news reports and information circulating in the industry”
that it was possible for asbestos and talc to exist together.
Different talcs from different sources were identified by product
number; at issue in this case were mainly “2450 talc” from North
Carolina and “1615 talc” from Italy. Whittaker was aware that
asbestos was a potential health hazard by 1971.
Defendant began testing talc for the presence of asbestos,
or commissioning others to test, in 1971. Mr. St. George testified
that in October 1973, Whittaker “possessed testing which showed
asbestos in talc.” He testified that, to the extent there was
positive testing, Mr. Dippold would “certainly” have known about
it in 1973, and Mr. Roesch also knew “that asbestos had been
found in a number of products” in 1972.
Mr. St. George testified that Whittaker “specifically knew
that scientists had detected asbestos in cosmetic talc in at least
by 1972.” Whittaker was consulting with Professor Lewin in the
early 1970’s, and Professor Lewin “was reporting what he was
finding in cosmetic talc at that time.” Mr. St. George identified a
talc analysis of June 12, 1972, finding chrysotile asbestos in
1615 talc from Italy, the same product number that defendant
supplied to Shulton and others at that time. Mr. St. George
testified that it was Whittaker’s policy to run further tests “on a
result like this,” but had no documentation of further analysis.
He did not know whether the 1972 finding was communicated to
any of Whittaker’s customers, or to the CTFA, or to the FDA.
Mr. St. George testified the company’s policy was “not to
sell talc that had detectable levels of asbestos.” He agreed that
“just because something is not detected at a limit does not

6
necessarily mean it’s free of asbestos.” He said that Whittaker
knew that asbestos is an unsafe ingredient to have in cosmetic
talc “[i]f there were enough of it,” and by that meant “[a]mounts
that experts would consider to be . . . significant enough to, over
time, produce injury or illness.” “[I]t was specified by customers
that the—the product not contain detectable levels of asbestos.”
Theodore Hubbard also testified, by video deposition, as
Whittaker’s corporate representative. He started working at
Whittaker in 1978, and retired as president of the company in
2004. He testified he did not become involved with cosmetic talc
until the later 1980’s, but he worked for many years with
Mr. Dippold, who “was really the person that decided where the
talcs came from, who we did business with, what ores we used.”
Mr. Hubbard testified that beginning in 1971, Whittaker
tested every lot of cosmetic talc. “They would test every
shipment,” “every 40,000 pounds.” Every 40,000 pounds
Whittaker received “would go in quarantine.” A one-pound
sample would be taken from various parts within the lot, and
“sent out to either E.S. Labs or McCrone or someone else.”
Whittaker rotated labs to make sure there was not a discrepancy
at a lab. When the results came back, the material was released
for sale.
Mr. Hubbard testified that the “company policy was never
ship any product that came back suspect.” “Whittaker had no
written policies, really,” but he knew that was the policy
“[b]ecause it was drilled into me from the day I started.” He
testified defendant had no documentation showing it ever
rejected any lots of talc, “because what they would do is they . . .
wouldn’t allow it out of quarantine. And then . . . it was disposed
of.” Mr. Hubbard was asked why Whittaker “would . . . have a

7
problem with its sales people guaranteeing to its customers that
the talc they were selling was free from asbestos,” and answered,
“Because they are two different things. [¶] Being a detectable
limit and free of asbestos could be two different things.” He
agreed that “just because something is not detected at a limit
doesn’t mean that it’s free of asbestos.”
4. Plaintiff’s Claim for Punitive Damages
Plaintiff sought to prove defendant’s officers and
directors—principally Mr. Dippold, Mr. Driscoll and
Mr. Roesch—were aware of the probable dangerous consequences
of their conduct surrounding the testing of the talc they supplied
to defendant’s customers, and deliberately failed to avoid those
consequences.
We briefly summarize the evidence on which plaintiff
relies; we discuss this evidence in detail in our lengthy summary
of the documentary evidence below. Defendant knew in 1971
that asbestos was a potential health hazard, and that asbestos
was an “unsafe ingredient” if there were enough of it in the talc.
Defendant began testing in 1971. Its testing included several
results in 1972 and 1973 showing asbestos in its talc samples.
Also in 1972, testing by Professor Lewin for the FDA, on talc
products including Old Spice talcum powder, showed asbestos in
many of the products. In 1976, when defendant reported to the
FDA 74 negative test results on ground ore samples during the
preceding four years, defendant did not reveal the positive test
results on several samples tested in 1972 and 1973. Defendant’s
(and the industry’s) X-ray diffraction testing method was limited
in the level at which it could detect asbestos in the talc, and
defendant knew that another, costlier but less practical method
was the most sensitive and reliable method. News reports in

8
1976 about finding asbestos in talcum powder quoted a scientist
stating, “there is no safe level of asbestos known.” In a document
that defendant challenges as inadmissible in the trial court and
on appeal, an FDA official expressed his concern in 1976 over
defendant’s “limited effort” to control the quality of their cosmetic
talc while assuring their customers it routinely tested and found
no detectable amounts of asbestos.
Plaintiff’s expert, Dr. Longo, tested vintage bottles of Old
Spice, and found they all contained asbestos. Other expert
testimony established that plaintiff’s exposure to Old Spice
contributed to his mesothelioma.
Before we describe the documentary evidence, we note
two points.
First, the scientific community did not make the connection
between talc and mesothelioma until many years after plaintiff
stopped using Old Spice in 1980. Plaintiff’s expert in
occupational and environmental medicine, Dr. Jacqueline Moline,
testified that one of the first medical case reports “where
mesothelioma was associated or was described with cosmetic talc
use” was in 1994.
Second, it has been held that “[s]cientific evidence
developed postinjury did not create a reasonable inference that
[the defendant] was acting with malice, preinjury, in failing to
warn of probable dangerous consequences of the product.”
(Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th
292, 334, italics added (Johnson & Johnson).)
These points, plaintiff contends, do not prevent an award of
punitive damages in this case because the evidence showed
defendant, and the entire talc industry, “hid the fact that talc
contains asbestos,” keeping “the larger scientific community . . .

9
in the dark.” They “ke[pt] secret from [their] customers and the
FDA that [their] talc contained asbestos” by threatening to sue
the FDA in 1972 and adopting the inferior testing method despite
known deficiencies. Defendant required its sales force to refer all
customer questions about asbestos in its talc to Mr. Dippold,
Mr. Roesch, or Mr. Krammes. They also “lied to the FDA” by not
revealing the 1972 and 1973 test results in the 1976 letter
provided to the FDA.
With these claims in mind, we describe the documentary
evidence chronologically.
5. The Documentary Evidence
a. August 1971
The FDA began its consideration of the question of asbestos
particles in talc in 1971. A Whittaker representative and
Professor Lewin, then Whittaker’s consultant, attended a
symposium in August 1971 at which the FDA stated that “[a]s a
first step, [it] would like to establish a laboratory procedure for
the determination of asbestos in talcum powder products that
will give meaningful and consistent results,” after which the FDA
“would be in a position to determine if such products on the
market contain asbestos fibers.”
b. June 1972
An “x-ray diffraction analysis” of 1615 talc from Italy was
performed in June 1972 by E.S. Laboratories. (This is the
analysis identified by Mr. St. George.) Tremolite was “non-
detected” and chrysotile was 1 percent. E.S. Laboratories also
found 1 percent chrysotile in No. 4609 cosmetic talc.
c. August 1972
On August 16, 1972, Mr. Roesch wrote to Mr. Driscoll,
showing a copy to Mr. Dippold, reporting on “the current

10
situation regarding talc contamination evaluation.” Among other
things, Mr. Roesch wrote:
The president of the CTFA told Mr. Roesch that the FDA
was about to publish in the Federal Register that talc “with a
contamination of more than 1%, as tested by X-ray Diffraction,
will not be permitted for use in cosmetics and baby powders.
[This] determination was made on the basis of a report prepared
. . . by Prof. Seymour Z. Lewin . . . . The report stated that out of
102 products on the shelf (some [were] duplicates) [that] were
tested . . . only 59 were found free of asbestos. Of the
43 remaining they evaluated in contamination from 1 to 30%,
many being in the 1 to 5% range. A number of customers had
been notified that their products were so contaminated, which
includes customers such as . . . Shulton, etc.” (Shulton was the
maker of Old Spice.)
The CTFA decided to arrange a meeting of people from the
industry with FDA personnel about the FDA’s proposal.
Mr. Roesch represented defendant at the meeting.
The CTFA president opened the meeting by saying “it was
felt that the report made was not complete or a true evaluation of
the products involved; that it would be very unfair to the industry
and to companies involved to the degree that, if it were released
to the public, industry would go to court against the [FDA].”
Then the meeting was turned over to Professor Lewin, “in
defense of his test methods and report. He had very little time to
prepare his defense (?) [sic]; however, he did have his charts and
verification of analyses used.”
Then another expert, who had tested a sample of material
tested by Professor Lewin, stated “that he did not confirm the
same result,” and “had electron microscopic photographs to prove

11
his point. At this time, Prof. Lewin admitted before his group
that the percentage reported was not on the basis of 1 to 2%
accuracy and it would be necessary at this point to run further
tests by the step method of X-ray Diffraction rather than by the
continuous scanning method used.”
Dr. Robert Schaffner, the FDA’s associate director for
technology, stated the FDA’s proposal “would not be released. He
ordered a further study by Prof. Lewin to reevaluate on the
43 samples involved, first by X-ray scanning methods, then by
the step method, and then by electron microscopy. He is to get
this report back in the [FDA’s] hands by the end of September, at
which time the proposal will be released.” Dr. Schaffner stated
they would “hold in confidence the information they have other
than advising the 43 people on the list that their product was in
evaluation because of possible contamination.”
Mr. Roesch ended his report by predicting “that the final
results will be less than 10% of the products evaluated will still
be in trouble, but it won’t be as serious as it could have been.”
An FDA memorandum of this August 1972 meeting
concludes by stating there “was no disagreement between FDA
and industry scientists present at this meeting about the
potential safety hazard that the presence of asbestos in talc
containing cosmetic product poses to the consumer.”
d. September 1972
In a September 1972 letter to Mr. Dippold, Professor Lewin
reported on “the four most recent talc samples you have sent me.”
In one of them, No. 1615, “[b]oth tremolite and chrysotile fibers
[forms of asbestos] were found to be present.” “[T]he asbestos
content of [that sample] is just at the minimum level of
detectability.” The protocol used and described in the letter was

12
“that which the FDA is tentatively considering as their official
testing procedure.” (In an earlier July 1972 letter from Professor
Lewin to another talc company, showing a copy to Mr. Dippold,
Professor Lewin reported that a talc sample contained both
tremolite and chrysotile “at about 1 to 2% by weight,” which was
the limit of detectability “by the less sensitive technique.”
e. April 1973
Mr. Roesch wrote to Dr. Alfred Weissler of the FDA in April
1973, providing a requested sample of an industrial (not
cosmetic) talc. Mr. Roesch said it represented a product
withdrawn from sales in August 1971 “in which a small amount
of chrysotile contamination was present.” He stated that “[o]ur
experience is that very few talcs contain even trace amounts, as
determined by the X-ray Diffraction, Continuous Scanning
Method.”
f. July 1973
An internal July 1973 FDA memorandum presents a
summary of “analytical results for asbestos in Cosmetic talcum-
type powders” by Professor Lewin, who was then acting as a
consultant to the FDA. The memo compares his results with
those obtained by other laboratories and comments “on the
general question of suitable techniques for the analysis of
asbestos in talc.” Professor Lewin analyzed 195 samples and
found definite indications of chrysotile in 17 samples (many of
which also had tremolite), and tremolite but not chrysotile in
another 18 of the samples. One of the samples was Old Spice
body talc, finding 1 percent tremolite with chrysolite not
detected. There was good agreement among laboratories for the
presence of tremolite, but “much less satisfactory” agreement of
results for chrysotile. Professor Lewin’s report summarized his

13
results: “Most of the commercial talcs tested are free of any
detectable amount of any of the asbestiform minerals, according
to the criteria enumerated above. Thus, there appears to be an
adequate supply of talc for which there is no ambiguity about the
absence of chrysotile or tremolite. In about 10% of the samples
tested, there appear to be definitely detectable amounts of either
chrysotile or tremolite present.”
g. October 1973
In October 1973, Heinz J. Eiermann, director of the
Division of Cosmetics Technology of the FDA, summarized and
commented on the July 1973 analytical results described just
above. He observed there was “poor correlation between
Dr. Lewin’s results and the findings of the other investigators,”
and “[t]he chrysotile content could not be confirmed with
certainty by the other investigators, and tremolite was detected
by the others only in a few instances.” He stated that in light of
those discrepancies, “and because the inhalation of certain
asbestiform minerals is a potential health hazard,” the FDA “has
engaged in an intensive research project to develop one or several
methods of sufficient sensitivity and reliability which will permit
the determination of asbestos in talc-containing products . . . .”
Ten days later, defendant’s executive John Woodruff sent
interoffice correspondence to “[a]ll Whittaker salesmen, agents,
sales desk and executive staff secretaries.” (Capitalization
omitted.) He stated: “Due to impending FDA regulations
regarding the alleged content of asbestos in talc, we believe you
will be besieged by a new assortment of questions and requests
for definitions from our customers. Some of these customers may
ask us to guarantee that the talc is free from asbestos or they
may ask for some specific testing or specific lot testing, etc. [¶]

14
Until this situation is clearly defined, we believe it will be best if
you do not attempt to feel [sic] these questions but refer them to
George Dippold, Fred Roesch or Ray Krammes. This is a very
delicate situation and there is much to be defined as to test
procedures and content, etc. [¶] Please advise all your people of
this and follow accordingly.”
h. November 1973
In November 1973, a scientist at Ernest F. Fullam, Inc.,
provided a report, at defendant’s request, entitled “Determination
of Asbestos in Talc by Light-Optical Microscopy.” This was part
of a round of testing, conducted by different laboratories acting
for various CTFA members on the same group of coded talc
samples, as described in the next paragraph. Fullam examined
six samples of talc from six sources, including North Carolina, for
particles of asbestos, using a method described in the Federal
Register in September 1973. The information defendant
requested from Fullam included “the number of chrysotile and
amphibole-type [tremolite] asbestos particles in each milligram of
talc.” Fullam’s report, directed to Mr. Krammes, stated that each
of the samples contained both chrysotile and amphibole fibers.
The North Carolina talc contained 6,000 chrysotile fibers per
milligram and 20,850 amphibole fibers per milligram. The report
stated there were “perhaps an equal number of particles in each
sample which escape detection since they fall below the 3:1 aspect
ratio required for positive identification.”
i. December 1973
In December 1973, the CTFA’s talc subcommittee sent its
members, including Mr. Roesch, a report it intended to submit to
the FDA. This reported the results of the round of testing on
six talc samples by different laboratories (of which the November

15
1973 Fullam results were a part), applying the FDA’s proposed
optical microscopic method. The results showed “strong
inconsistency between results obtained by the different scientists
applying the method to the same group of coded talc samples,”
and was “the result of problems encountered in the methodology.”
The subcommittee concluded the proposed method “does not
provide a truly reliable means for the detection of asbestos in
talc.” The subcommittee recommended postponement of
finalization of the FDA’s proposed regulation on talc, and
proposed a collaborative effort between industry and the FDA “to
resolve a satisfactory method of estimating chrysotile and
tremolite in talc.”
The CTFA’s talc subcommittee estimated that a
satisfactory method would take at least six months to a year to
develop. The report included a “review of alternate methods,”
listing seven methods with comments on their capabilities and
problems. These included several “X-ray” scanning methods,
none of which could reliably detect chrysotile. “The problem of
chlorite interference in the detection of chrysotile is present in all
x-ray procedures thus far available.” Differential thermal
analysis “is capable of detecting chrysotile at the 1% level,
however, it will not detect tremolite.”
One of the alternate methods was “Transmission Electron
Microscopy + Electron Diffraction,” and the comment was: “This
appears to offer the best, most reliable method and is probably
capable of detecting chrysotile and tremolite (fibrous), both at a
level of 0.1%. It is estimated that an installation would cost
about $130M +, and is obviously prohibitive for the small
manufacturer who uses talc. The amount of talc sample
examined by this procedure is miniscule.”

16
 j. December 1974
A year later, a memo from Mr. Krammes to Mr. Roesch
reported on a CTFA talc subcommittee meeting on asbestos in
talc. He described the status of differential thermal analysis
(DTA) work at various companies, including Whittaker, and
stated: “Pfizer feels that DTA is being pushed by J&J because
the FDA has similar equipment but they do not have an electron
microscope. I feel that Pfizer is correct in this attitude but two
different types of personnel are involved. It takes much greater
skill to operate the electron microscope than it does to operate the
DTA.”
k. August 1975
The CTFA standards committee discussed whether it
should use a 0.5 percent maximum limit for asbestos in cosmetic
talc, “as opposed to ‘nondetected’ terminology.” Mr. Krammes
attended this meeting as a guest. The committee voted for the
use of the “nondetected” terminology, and for a definition of
cosmetic talc that included “ ‘containing no detectable fibrous
asbestos minerals.’ ”
l. February 1976
An internal FDA memorandum from Mr. Eiermann
reported on a conversation he had with a reporter for the
Washington Post on the subject of asbestos in talc. The reporter
inquired about the status of FDA efforts concerning the
regulation of asbestos in cosmetic talc products. Mr. Eiermann
described Professor Lewin’s 1973 results, and stated that “[o]ther
investigators, including the FDA, using other analytical methods,
could not confirm the Lewin results, particularly in regard to
Chrysotile. None of the results could be duplicated.”
Mr. Eiermann described two currently available methodologies

17
suitable for routine quality control of talc, and the problems with
those methodologies. (These were “differ[ential] thermal analysis
(DTA) for the determination of Chrysotile at a level sensitivity of
about 0.5 – 1.0% and stepscanning x-ray diffraction for the
determination of Tremolite at a concentration of 0.3 – 0.5% (and
Chrysotile when the talc is free of chlorite, a common talc
component).”) He stated that “[e]lectron microscopy is not a
suitable method for routine evaluation of talc because of the time-
consuming methodology and the nature of talc mining and
processing which demand multiple, continuous sampling to arrive
at statistically meaningful results.” He also said the FDA was
“unable in recent investigations to find asbestos-contaminated
commercial cosmetic talc samples.”
m. March 1976
i. March 8, 1976
A memorandum from Mr. Eiermann described a reporter’s
request for the FDA’s viewpoint on an article that had just
appeared in the Washington Post about asbestos fibers found in
baby powders. Mr. Eiermann pointed out the article referred to
the 1973 sample analysis, whose chrysotile results could not be
confirmed by others. He stated that “[d]uring the past three
years, the FDA conducted analytical research to develop
analytical methods suitable for routine testing of talc for
asbestos,” and “[i]n FY 1975, 73 talc products were sampled and
tested for asbestos,” and none was found to contain tremolite or
chrysotile. The FDA’s methods of testing were differential
thermal analysis and optical microscopy.
ii. March 11, 1976
The CTFA talc subcommittee met to review the report that
Mount Sinai Medical Center scientists found asbestos in talcum

18
powder products. The subcommittee “felt that it would be
important to put this situation in proper perspective” by
“[p]resenting summary data to FDA to affirm the responsible
action which has been pursued by our industry since 1972 when
the asbestos concern first surfaced.”
iii. March 15, 1976
CTFA members sent letters to Mr. Eiermann at the FDA
describing “the analyses for asbestos form materials in talc used
in the U.S. production of cosmetics and toiletry products.” The
March 15, 1976 cover letter from Norman Estrin stated CTFA’s
certainty “that the summary will give you assurance as to the
freedom from contamination by asbestos form materials of
cosmetic talc products.”
Mr. Roesch authored Whittaker’s letter, stating Whittaker
had started a test program in 1971 “to insure customers using
our cosmetic grade talcs that they are free of fibrous asbestos.”
The company determined X-ray diffraction would be the most
practical method of detecting the possible presence of asbestos
“and thus assure us of a reliable and workable means of periodic
monitoring our talcs.” If this testing showed possible positive
results, the sample was further subjected to optical microscopy,
and all testing was performed by outside laboratories.
Mr. Roesch identified eight “outside experts” who performed the
testing, including Fullam and Professor Lewin. His letter stated
that “[w]e have also used other test methods such as Differential
Thermal Analysis and Optical Microscopy, however X-ray
diffraction gave us the best reproducible results.”
Mr. Roesch reported Whittaker’s files contained reports on
various grades of cosmetic talc from six areas, including North
Carolina and Italy. “These reports were based on approximately

19
74 ground ore samples analyzed over a period of four years all of
which show non-detectable amounts of fibrous asbestos form
minerals.”
A letter from Sterling Drug Inc. described its testing and
stated, “We also have had assurance from our supplier,
[Whittaker], that they routinely monitor the shipments of talc
supplied us for the presence of asbestiform minerals and have
found no detectable amounts.”
iv. March 17, 1976
CTFA issued a press release stating “[t]he recent
allegations concerning asbestos in talc powders” were analyses of
products purchased in 1973, and “do not represent current
production,” and the summary data submitted to the FDA
“substantiates the industry’s belief that cosmetic talc products
are safe for the consumer.”
v. March 26, 1976
Another Washington Post article reported on the research
at Mount Sinai Medical Center that found asbestos in some
talcum powders. The article noted that declining amounts were
found in newer samples. Dr. Selikoff, chairman of the hospital’s
department of environmental medicine, “said the apparent
discrepancy between FDA’s findings and Mount Sinai’s is due to
a difference in technique. FDA’s methods are not sensitive
enough to measure asbestos below a certain level.” The FDA’s
methods, differential thermal analysis and optical microscopy,
“ ‘are not as sensitive as electron microscopy.’ ” The article
reported Dr. Selikoff’s acknowledgement that “the cosmetics
industry has ‘gone ahead quietly and improved the talc,’ ” but
“ ‘[t]hey were dusting people with asbestos all these years before,

20
so what was put in the lungs before is still there,’ ” and “ ‘[t]here
is no safe level of asbestos known.’ ”
vi. March 31, 1976
The minutes of the CTFA talc subcommittee’s meeting,
which Messrs. Krammes and Roesch attended, stated the
subcommittee “agreed on the success of the presentation of
summary reports given to the FDA. Dr. Estrin suggested the
Subcommittee should not obligate itself to give periodic reports to
FDA but urged members to build their data base so that at some
time in the future the Subcommittee can decide whether the time
is right to present FDA with an update on industry analysis.”
The subcommittee also discussed the possibility of animal studies
on talc, and Mr. Roesch was among those who would investigate
this possibility.
n. The March 1976 Eiermann memo
We now describe the document that defendant contends
should have been excluded from evidence.
A few days after the CTFA’s March 15, 1976 submission to
the FDA, Mr. Eiermann wrote a memo to Dr. Schaffner. The
subject was asbestos in talc, specifically Mr. Eiermann’s
comments on the letters that had been submitted by the CTFA.
With respect to Mr. Roesch’s letter, Mr. Eiermann said this:
“[Whittaker], perhaps the most important supplier of talcs
of various origins and quality grades to the cosmetic industry,
claims to have analyzed, under contract, 74 samples during the
past four years. Considering the nature of [Whittaker’s] business
volume, the variety of sources of supply, the various quality
grades of talc involved, and the fact that this firm also supplies
other industries with industrial talcs which do contain asbestos, I
am greatly concerned about their limited effort to control the

21
quality of their cosmetic talc. Their sales catalogue lists at least
20 grades of types of cosmetic talc. Accordingly, any type of talc
underwent one analysis for asbestos per year. On the basis of
this effort [Whittaker] have provided their consumers with
written assurance that they routinely monitor shipments of talc
for asbestiform minerals and have found no detectable amounts.
This assurance might be misleading and give the cosmetic
industry the false impression that [Whittaker] talcs are
adequately tested for asbestos. I am also very much concerned
about the fact that a firm of this standing in the cosmetic
industry does not have facilities to do its own analytical work.”
Mr. Eiermann’s summary stated that “though the
submission by the CTFA Talc Subcommittee looks impressive at
first hand, it does not offer much assurance that cosmetic talcs
are adequately tested for asbestos.”
o. September 1976
Mr. Eiermann memorialized another conversation with a
Washington Post reporter on September 28, 1976. He told her no
regulatory action had been taken concerning asbestos in
cosmetics; the FDA was “continuing our work on the development
of instrumental methods”; it might propose regulations “[o]nce
the methodology has been worked out to our satisfaction”; and
“[o]ur investigations of talc products demonstrated that none of
the talcs used in these products contained asbestos as a
contaminant.” He stated that, “since asbestos had been identified
as a potential carcinogen, the agency would always be concerned
about this matter and its potential health hazard.”

22
 p. October 1976
The CTFA issued a document describing in detail its
“Method J4-1” for detection of asbestiform amphibole minerals in
cosmetic talc. The introduction stated:
“The method which has been adopted for the detection of
amphibole minerals in cosmetic talc is the generally accepted
method of x-ray diffraction. Methods which appear in the
literature for the detection of fibrous amphibole, such as,
transmission electron microscopy with selected area diffraction
and electron microprobe, have also been considered since they are
capable of a lower level of detection than by x-ray diffraction.
However, they have not been adopted since they suffer from
drawbacks, that the amount of material under examination is
quite small (less than a microgram) and the time for analysis,
expertise required, and expense of equipment eliminates them as
routine methods. [¶] The methodology presented is the most
practical available, based on current technology. The use of
Transmission Electron Microscopy [TEM] with Selected Area
Electron Diffraction offers greater sensitivity, but is not
presented since it is unsuitable for normal quality control
application.”
q. November 1976
The CTFA talc subcommittee met in November 1976 and
discussed the members’ interest in a round-robin study of recent
talc samples that would include Mount Sinai Medical Center and,
if possible, the FDA. Defendant was among those indicating
their interest in participating. The subcommittee agreed to a
general outline of the methodology, and proposed seven products
to be selected for sampling, as well as two “spiked” samples.

23
 r. February 1977
Pfizer, a supplier of “Montana MP” talcs to Whittaker,
wrote to Mr. Driscoll on February 9, 1977, about Occupational
Safety and Health Administration (OSHA) proposals to further
limit permitted occupational exposure levels to asbestos fibers.
Pfizer stated the reason for OSHA’s proposed revision “is that
asbestos, in its several commercial forms, has been associated
with the production of not only asbestosis but a variety of cancers
and malignancies. Because of the many unknown factors,
including the variability of individual response to carcinogens
and the absence of data to establish a safe level, OSHA has
concluded that employee exposure must be reduced as low as is
feasible.”
Pfizer described its own “most accurate and sensitive”
methods for analyzing for asbestos and asbestiform minerals in
talc, which included transmission electron microscopy. Pfizer
told Mr. Driscoll that Pfizer’s method “permits identification of
true chrysotile asbestos at levels of 0.5 percent and fibrous
amphiboles such as tremolite at levels as low as 0.1 percent in
the talc. No other identification methods in use today . . . are as
sensitive and as direct.” Pfizer advised that the Montana MP
talcs Whittaker purchased contain “no detectable quantities of
tremolite or any of the asbestiform minerals.”
s. May 1977
A CTFA task force on testing of consumer talcum products
for asbestiform minerals met on May 17, 1977. Mr. Krammes
attended for defendant. The task force’s objectives were to
“[d]etermine whether or not any 1976 production of major
commercial talc products contain asbestiform amphibole
contaminants,” and to “[t]est and verify CTFA Method J4-1 for

24
this purpose—assurance that method is accurate, reliable and
practical.” The chairman reported those objectives “have not yet
been achieved,” and discussion ensued concerning discrepancies
in results, proposed partial retesting, and procedures. The task
force agreed to begin a round robin partial retest.
This marks the end, chronologically, of the documentary
evidence during the period plaintiff used Old Spice talcum
powder.
Defendant also introduced a February 8, 1983 letter from
the FDA’s Division of Regulatory Guidance to Joan M. Pankey of
the John Hopkins Oncology Center. Ms. Pankey had requested
information about, among other things, studies “concerning the
potential lung cancer hazard of inhaling asbestos contaminated
talcum powder.” The FDA replied: “The matter of contamination
of talc with fibrous asbestos was extensively study [sic] by both
the [FDA] and industry in the mid to late 1970’s. We have no
knowledge of any cosmetic talcum powder product on the market
that contains fibrous asbestos. Nor do we have any information
or data which indicates that presently marketed cosmetic talc
preparations are unsafe when used as directed.”
DISCUSSION
As stated at the outset, we conclude the evidence, viewed in
the light most favorable to plaintiff, does not establish defendant
acted with the malice, oppression or fraud necessary for an award
of punitive damages.
1. The Legal Background and Standard of Proof
Under Civil Code section 3294, the plaintiff must prove the
defendant acted with malice, fraud, or oppression by clear and
convincing evidence. (Id., subd. (a).)

25
 “Malice ‘means conduct which is intended by the defendant
to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious
disregard of the rights or safety of others.’ ” (Johnson & Johnson,
supra, 37 Cal.App.5th at p. 332, quoting Civ. Code, § 3294,
subd. (c)(1).)
“When there is no evidence the defendant intended to harm
the plaintiff, there must be evidence of conduct that is both
willful and despicable. [Citation.] Conscious disregard for the
safety of another may be found ‘ “where the defendant is aware of
the probable dangerous consequences of his or her conduct and he
or she willfully fails to avoid such consequences.” ’ [Citation.]
‘ “Despicable conduct” is conduct that is “ ‘so vile, base,
contemptible, miserable, wretched or loathsome that it would be
looked down upon and despised by ordinary decent people.’ ”
[Citation.] Such conduct has been described as having the
character of outrage frequently associated with crime.’ ”
(Johnson & Johnson, supra, 37 Cal.App.5th at pp. 332–333.)
“[T]he standard of proof known as clear and convincing
evidence . . . requires proof making the existence of a fact highly
probable . . . .” (Conservatorship of O.B. (2020) 9 Cal.5th 989,
995.) “[W]hen reviewing a finding that a fact has been proved by
clear and convincing evidence, the question before the appellate
court is whether the record as a whole contains substantial
evidence from which a reasonable fact finder could have found it
highly probable that the fact was true. Consistent with well-
established principles governing review for sufficiency of the
evidence, in making this assessment the appellate court must
view the record in the light most favorable to the prevailing party
below and give due deference to how the trier of fact may have

26
evaluated the credibility of witnesses, resolved conflicts in the
evidence, and drawn reasonable inferences from the evidence.”
(Id. at pp. 995–996; Morgan v. J-M Manufacturing Co.,
Inc. (2021) 60 Cal.App.5th 1078, 1090 [“The clear and convincing
evidence standard of proof ‘ “requires a finding of high
probability” ’ that the fact is true.”].)
In sum, to support an award of punitive damages, the
evidence must allow a reasonable person to conclude it is highly
probable that an officer, director, or managing agent of defendant
was “ ‘ “aware of the probable dangerous consequences” ’ ” of his
conduct in connection with the company’s distribution of its talc
to Shulton, and “ ‘ “willfully fail[ed] to avoid” ’ ” those
consequences. (Johnson & Johnson, supra, 37 Cal.App.5th at
p. 332.)
2. Contentions and Conclusions
We cannot find, in the record we have described in detail,
substantial evidence of malice, fraud or oppression. We do not
find the mesothelioma cases plaintiff cites as “binding authority,”
brought by workers exposed to raw asbestos or asbestos dust,
justify an award of punitive damages in this case involving
exposure not later than 1980 to trace levels of asbestos in talc.
Indeed, those cases demonstrate, by comparison with this case,
the opposite.
a. The record
As indicated, defendant does not challenge the jury’s
finding that defendant’s negligence caused harm to defendant.
Thus, we assume the evidence supports a finding that
defendant’s testing was inadequate, and defendant negligently
failed to warn its customers that its testing was not sensitive
enough to guarantee its talc was entirely free of asbestos.

27
 What the evidence does not show is that defendant’s
executives knew there were “probable dangerous consequences”
from trace levels of asbestos in its talc, and deliberately did
nothing to avoid them. Plaintiff tells us that Whittaker
executives knew that “trace” amounts of asbestos by weight
“translated to millions and millions of asbestos fibers per ounce of
talc.” But that begs the question whether defendant’s executives
knew before 1980 that “millions and millions” of asbestos fibers
in the trace amounts found in talc would cause a high probability
of injury, and plaintiff does not explain how the evidence
supports that conclusion.
Yes, defendant knew asbestos was an “unsafe ingredient” if
there were enough of it in the talc—meaning amounts experts
would consider “significant enough to, over time, produce injury
or illness.” But no one knew exposure to talcum powder could
cause mesothelioma until 1994—years after plaintiff’s exposure
to talc ended in 1980. Medical or scientific developments years
after plaintiff’s injury cannot establish defendant’s executives
knew of “probable dangerous consequences” of contaminated talc
before plaintiff’s injury.
Plaintiff counters these facts with two principal arguments.
First, plaintiff says the evidence shows defendant’s
executives “were repeatedly warned that there was no safe level
of exposure to asbestos.” Plaintiff cites four documents, none of
which supports that contention.
The earliest of these was the FDA’s 1971 symposium
(pt. 5.a. of the Facts, ante, at p. 10), which on its face belies
plaintiff’s contention. The FDA symposium was held because the
“amount of asbestos fibers in talcum powder products, and the
inhalation health hazards associated with their presence, are

28
subjects of current interest but differing reports.” Indeed, quite
the opposite of what plaintiff contends, the FDA said “it was
generally agreed that most talcum powders of major
manufacturers are relatively free of asbestos,” but the FDA was
“working on the details of a laboratory procedure for the analysis
of asbestos in talcum powders which will give consistent
meaningful results,” with many symposium participants
believing that “[a]ccurate analyses for the amount of asbestos in
talcum powder will be obtainable . . . only through the use of a
battery of specialized instruments and techniques, including x-
ray diffraction, polarizing optical microscopy, electron
microscopy, and electron diffraction of selected particles.”
Plaintiff’s assertion that scientists reported at the symposium
that 22 cosmetic talc products analyzed all contained asbestos
exaggerates the findings in the 1968 paper in question, which
raised no alarms whatsoever about the danger of asbestos fibers
in talc. The paper stated 22 products “have an appreciable fiber
content,” which was “predominantly talc but probably contained
minor amounts of tremolite, anthophyllite, and chrysotile as
these are often present in fibrous talc mineral deposits.”
Next, plaintiff points to the 1972 meeting between the
industry and the FDA that Mr. Roesch attended. An FDA
memorandum of this meeting (see pt. 5.c. of the Facts, ante, at
p. 12), concludes by stating the FDA and industry scientists
present agreed “about the potential safety hazard” posed to
consumers by the presence of asbestos in “talc containing
cosmetic product.” The fact that the FDA and talc industry were
concerned about a “potential safety hazard” does not support the
inference that Mr. Roesch knew that any level of asbestos in talc,

29
however small, would have “probable dangerous consequences”
for the consumer.
Next, plaintiff contends that in 1976, defendant was “on
notice from Dr. Selikoff” that there was “no safe level of asbestos
known.” The evidence for this is the March 26, 1976, Washington
Post article quoting Dr. Selikoff that we described in part 5.m.v.
of the Facts, ante, at pages 20-21. Dr. Selikoff was not a witness
in this case. The newspaper article may have put defendant’s
executives “on notice” of Dr. Selikoff’s opinion on the subject. But
when viewed in the context of the extensive industry and FDA
efforts to find a suitable methodology for testing talc, both before
and after publication of Dr. Selikoff’s opinion, and FDA
statements later in 1976 that its investigations of cosmetic talc
products found none contaminated by asbestos, we do not believe
it is reasonable to infer to a high degree of probability that,
assuming defendant’s executives knew of Dr. Selikoff’s opinion,
they deliberately ignored “probable dangerous consequences”
from the use of talcum powder containing trace levels of asbestos.
Finally, plaintiff cites the February 1977 letter from Pfizer,
a supplier of Montana talcs to defendant, to Mr. Driscoll. (See
pt. 5.r. of the Facts, ante, at p. 24.) The Pfizer letter advised
defendant of OSHA’s proposed revision of the standard for
occupational exposure to asbestos, and that, “[b]ecause of the
many unknown factors,” including “the absence of data to
establish a safe level, OSHA has concluded that employee
exposure must be reduced as low as is feasible.” Again, we do not
believe OSHA’s concern about workers’ exposure to raw asbestos
and asbestos dust supports a reasonable inference to a high
degree of probability that defendant’s executives knew and

30
deliberately ignored “probable dangerous consequences” of
consumer use of talcum powder.
It is worth repeating that no one knew of the connection
between talcum powder use and mesothelioma until at least
14 years after plaintiff’s exposure ended in 1980. And the FDA
“never did take steps to regulate cosmetic talc,” telling a reporter
in March 1976 that it did not order a recall of the asbestos-
contaminated talc samples it analyzed in 1973 because,
“obviously, the potential hazard did not warrant a recall,
otherwise the agency would have initiated [a recall] at that time.”
That brings us to plaintiff’s second principal argument:
that “because [defendant] and the entire talc industry hid the fact
that talc contains asbestos, the larger scientific community was
kept in the dark.” That argument is, of course, wholly
unsubstantiated. The entire record is a testament to the various
technologies available or being used for testing talc samples for
asbestos. There is no evidence the scientific community was
“kept in the dark.”
Plaintiff narrows the argument by contending the evidence
showed defendant and the CTFA “ke[pt] secret from its
customers and the FDA that its talc contained asbestos,”
employing “four primary tactics.” These “tactics” included the
CTFA’s threat to sue the FDA in 1972; using a testing method
known to be less sensitive and less reliable than transmission
electron microscopy; and telling its sales force in 1973 to direct
customer inquiries about asbestos in talc to Messrs. Dippold,
Krammes or Roesch. The fourth “tactic” was that in 1976
defendant “lied to the FDA, and assured the FDA that it had
never found asbestos in its talc.”

31
 None of these “tactics,” considered separately or
cumulatively, supports an inference that defendant’s executives
deliberately hid information from the FDA, much less that they
knew of “probable dangerous consequences” to consumers from
the use of products containing their talc. The 1972 threat to
sue—by the CTFA, not defendant—was made to avoid the public
revelation of the products Professor Lewin had found to contain
asbestos. But everyone agreed—even Professor Lewin—that it
was necessary to run further tests to reevaluate the 43 samples
by other methods. The CTFA’s threat to sue at this juncture is
not probative of the only question at issue here: defendant’s
knowledge of a probable risk of injury to consumers using
products made with its talc.
The second “tactic”—using a testing method known to be
inferior to the more sensitive transmission electron microscopy—
is likewise not probative of defendant’s knowledge of the probable
dangerous consequences to the consumer of using talcum powder.
Plaintiff tells us defendant “used [x-ray diffraction] to
intentionally obtain false-negative results.” Nothing in the
record supports that claim.
There is evidence defendant knew transmission electron
microscopy (TEM) was the most reliable and sensitive method of
detecting asbestos in talc, and defendant never used that method.
But the FDA was also aware of the greater sensitivity of
transmission electron microscopy, and also believed it was not a
suitable method for routine evaluation of talc, in part because of
its time-consuming methodology. Plaintiff’s expert, Dr. Longo,
who used “new state-of-the-art equipment that makes it easier to
see the asbestos bundles,” confirmed the time-consuming nature
of the method in this cross-examination by defendant:

32
 “Q. So if TEM were used in the early to middle [1970’s],
they wouldn’t be able to find the chrysotile either, would they?
“A. Well, yes, people have found the chrysotile with TEM.
Johns Manville has found chrysotile with TEM using the FDA
protocol where they do the long method, where they look at
hundreds and hundreds of grid openings. Hutchinson has found
chrysotile in cosmetic talc looking at 2,000 grid openings. [¶]
Recent analysts have found chrysotile in cosmetic talcs by TEM
by looking at anywhere from 1,500 to 2,000 grid openings. We’re
looking at trying to do it in a smaller amount.
“Q. Is it not practical to use their methods?
“A. No, it’s not practical. 10,000—anywhere from 2,000
to 5,000 grid openings takes two weeks. [Italics added.]
“Q. Okay. So then without using one of these overly
oppressive methods, would you agree with me that there was no
way—reasonable way during the 1970s to test by TEM for
chrysotile?
“A. No, I—I don’t agree with that. If you’re willing to
look for the amount of grid openings, you can do that. We—we
can’t do that in our lab.”
Dr. Longo went on to state that “if I was selling a product
that I knew had the potential to have chrysotile in it and I was
going to be having people stick this on babies and their health, I
would spend whatever time I had to, to make sure my product did
not have it in.”
In short, evidence of defendant’s knowledge in the 1970’s of
the potential hazards of asbestos in talc, and of more sensitive
testing methods than the one it used, supports the inference
defendant was negligent in failing to warn its customers of the
potential hazard. But malice is a far cry from negligence, and the

33
evidence that defendant did not use TEM to test its talc does not
support a reasonable inference of malice.
The third and fourth tactics plaintiff identifies as evidence
of malice are equally unavailing. We see nothing nefarious about
directing customer inquiries about asbestos in talc to the three
executives who knew the most about it. And the claim that
“Mr. Roesch explicitly lied to the FDA when he informed the FDA
that [defendant] had never found detectable asbestos in its talc”
is an unwarranted overstatement of the evidence (as is the
related claim that “the FDA did not act [to regulate cosmetic talc]
because [defendant] lied to the FDA,” citing the same 1976
letter).
Mr. Roesch’s 1976 letter stated that defendant’s file
“contains reports on various grades of cosmetic talc from areas in
Alabama, North Carolina, Montana, Italy, South Korea and
Vermont. These reports were based on approximately 74 ground
ore samples analyzed over a period of four years all of which
show non-detectable amounts of fibrous asbestos from minerals.”
Mr. Roesch nowhere states that defendant “had never found
detectable asbestos in its talc.”
Mr. Roesch did not disclose in this letter three positive test
results: the June 1972 report from E.S. Laboratories for
Mr. Dippold, showing 1 percent chrysotile in an Italian talc
sample; Professor Lewin’s September 1972 analysis for
Mr. Dippold, finding chrysotile and tremonite in an Italian talc
sample (but not in three other samples); and the Fullam report in
November 1973, directed to Mr. Krammes, finding asbestos
particles in six samples, including talc from North Carolina.
(Recall that the Fullam report was part of a round of testing by
different laboratories applying the FDA’s proposed testing

34
method to the same group of talc samples; the results showed
“strong inconsistency between results obtained by the different
scientists.” (See pt. 5.i. of the Facts, ante, at p. 16.))
While it may be that Mr. Roesch should have mentioned
those positive test results from 1972 and 1973, that does not
support a reasonable inference that “the FDA did not act [to
regulate cosmetic talc] because” of that omission. Moreover, FDA
personnel had long known of Professor Lewin’s findings in 1972
and 1973 of asbestos in talc products. (See pts. 5.f. & 5.g. of the
Facts, ante, at pp. 13–14.) And the Fullam results were included
in the CTFA report prepared for submission to the FDA (pt. 5.i.,
ante, at p. 16).
In short, there is no substantial evidence that defendant
deliberately hid the 1972 and 1973 test results from the FDA—
much less that Mr. Roesch knew his omission of those results was
likely to result in asbestos-related injury to the ultimate
consumers of defendant’s talc.
b. The cases
Plaintiff insists that defendant’s conduct “meets or exceeds
that which California appellate courts have concluded warrants
punitive damages” in other asbestos-related mesothelioma cases.
Plaintiff included a chart of the cases in his brief but does not
describe the facts in those cases. We summarize below the facts
of those cases, which involve very different levels of knowledge
and behavior than appear in the evidence in this case.
Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23,
disapproved on a different point in Webb v. Special Electric Co.,
Inc. (2016) 63 Cal.4th 167, 188, involved a defendant that mined
chrysotile asbestos and sold it under the brand name Calidria to
other companies, who used it in a joint compound that is applied

35
in connection with drywalling and then sanded, creating a cloud
of asbestos dust. (Id. at p. 26.) The evidence supported the
interpretation that the defendant “did not share its knowledge of
the dangers of asbestos with its customers or with individuals
who would, predictably, be exposed to dust from its products, and
that it instead sought to downplay the risk.” (Id. at p. 34.) For
example, well after the defendant had internally decided it would
be prudent to assume Calidria, like other asbestos, could cause
mesothelioma, “it intimated in letters to customers that Calidria
was or might be different than other asbestos in that respect.”
(Id. at p. 35.) The defendant prepared a toxicology report on the
danger of asbestos but made no effort to deliver the report or
other information to workers. (Id. at p. 34.) One of defendant’s
managers wrote a memo to the marketing department
recommending ways to manipulate and intimidate customers
who threatened to eliminate asbestos. (See id. at p. 35.)
In Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th
68, the defendant did not dispute that the evidence was sufficient
to support the jury’s verdict finding it liable for punitive
damages; it challenged the trial court’s refusal to reduce the
amount. (Id. at pp. 87, 72.) The defendant’s predecessor
manufactured brakeshoes fitted with asbestos-containing linings
that were manufactured by others. (Id. at p. 73.) “By the 1960’s,
[the defendant] knew that workers exposed to asbestos dust were
at risk of developing asbestos-related diseases,” and in 1973 and
1975 complained to manufacturers about the presence of asbestos
dust in the brake linings it received, but “[n]onetheless, . . . did
not place any warnings on its products until the early 1980’s, and
continued to market asbestos-containing brakes until its
inventory of them was exhausted.” (Ibid.) Unlike Bankhead, this

36
case includes no evidence of a “prolonged failure to take adequate
measures to protect people who worked with its products against
a known hazard to their health and safety.” (Id. at p. 86.)
Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270
(Pfeifer) also involved “asbestos-laden products”—in that case,
“packing and gaskets containing asbestos.” (Id. at pp. 1280–
1281.) The court likened the evidence to that in the Stewart case.
(Pfeifer, at p. 1300.) The defendant “fully understood that
asbestos dust endangered workers, but it did not issue warnings
to customers until 1983, notwithstanding its awareness that they
used the products in ways that generated considerable asbestos
dust.” (Id. at p. 1301.) The defendant told its own employees
that the asbestos used in making certain gaskets caused cancer
but only gave that information to customers when they asked for
the safety data sheet. (Ibid.) This, and more, established that
defendant “carried on despicable conduct with an awareness of
the ‘probable dangerous consequences,’ and ‘willfully fail[ed] to
avoid such consequences.’ ” (Ibid.)
Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962
involves the same defendant as in the Stewart case, as well as the
same evidence on punitive damages. (Izell, at p. 986.) The
defendant argued the punitive damages were excessive. (Id. at
p. 982.) In discussing the reprehensibility of the defendant’s
conduct, the court recited the evidence showing the defendant
“acted with a reprehensible indifference to the health and safety
of others,” and concluding “[a]ll this suggests [the defendant]
knew the dangers of its product, but failed to warn consumers of
those dangers, while seeking to maintain profits from the sale of
asbestos.” (Id. at pp. 985, 986.)

37
 Phillips v. Honeywell International Inc. (2017)
9 Cal.App.5th 1061 involved brakes containing 25 to 50 percent
asbestos. (Id. at p. 1065.) The court did not publish the portion
of the opinion in which the court concluded there was adequate
evidentiary support for the jury’s finding of malice, so the case
has no precedential value here. (Id. at p. 1064.)
To summarize, all of these cases involve exposure to
products made with raw asbestos, where the defendants knew
that exposure to raw asbestos and asbestos dust from products
made with asbestos is a cause of mesothelioma. This is not a case
involving exposure to raw asbestos or asbestos dust from
products made with asbestos. “Cosmetic talc products . . . are not
formulated to contain asbestos or to necessarily be used in the
presence of asbestos.” (LAOSD Asbestos Cases (2020)
44 Cal.App.5th 475, 489.) In a talc asbestos case, the plaintiff
has been exposed to asbestos “through use of a talc product not
designed to contain that mineral.” (Ibid.)
It is undisputed that the scientific and medical link
between talcum powder use and mesothelioma was not
discovered until 1994. We cannot see how defendant’s conduct
surrounding its testing protocols and lack of warnings on the
possible asbestos content of their talc in the 1970’s—albeit
negligent—can be characterized as “despicable conduct” that was
carried on with an awareness of its “ ‘probable dangerous
consequences.’ ” (Pfeifer, supra, 220 Cal.App.4th at p. 1301,
italics added.)
Johnson & Johnson, supra, 37 Cal.App.5th 292, is
instructive. In that case, the court affirmed the trial court’s
grant of judgment notwithstanding the verdict as to punitive
damages. The evidence established the defendant “was aware of

38
studies showing an association between talc and ovarian cancer,”
and the defendant, between the 1990’s and 2006, responded to
those studies by mounting a defense against them, focusing solely
on avoiding the conclusion that talc causes ovarian cancer. (Id.
at p. 333.) But the evidence also showed it was “not universally
accepted in the scientific or medical community that talc is even a
significant risk factor for ovarian cancer.” (Ibid.) And there was
“no evidence [the defendant] had any information about the
dangers or risks of perineal talc use that was unavailable to the
scientific or medical community.” (Id. at p. 334.)
Johnson & Johnson concluded: “The evidence established
that [the defendant] has refused to draw a causal connection
between perineal talc use and ovarian cancer before experts in
the relevant fields have done so. The jury could reasonably
conclude this was unreasonable and negligent. But it is not clear
and convincing evidence of ‘despicable conduct,’ that is, conduct
‘ “ ‘[having] the character of outrage frequently associated with
crime.’ ” ’ ” (Johnson & Johnson, supra, 37 Cal.App.5th at
p. 335.) Thus while “there was sufficient evidence to support the
jury’s finding that [the defendant] breached its duty to warn of
the risks of perineal talc use, we do not take the further step of
upholding the jury’s finding that [the defendant] acted with
malice.” (Ibid.)
Nor do we, on the evidence in this case. Plaintiff insists
Johnson & Johnson is distinguishable because “the talc/ovarian
cancer link was not sufficiently proven,” whereas by contrast,
defendant here “knew in the early 1970’s that asbestos exposure
causes mesothelioma.” Plaintiff simply ignores the fact that it
was not known in the 1970’s that the contamination of talc with

39
trace amounts of asbestos could cause mesothelioma, or other
asbestos-related disease. That was not known until 1994.
c. The Eiermann memorandum
Defendant objected (by a motion in limine) to the admission
in evidence of the March 18, 1976 Eiermann memorandum
(pt. 5.n. of the Facts, ante, at pp. 21–22). As we have recounted,
the memorandum contains Mr. Eiermann’s comments criticizing
defendant’s testing frequency, calling it a “limited effort to
control the quality of their cosmetic talc,” while assuring their
customers that they routinely monitor shipments and have found
no detectable amounts of asbestiform minerals. Mr. Eiermann
said this assurance “might be misleading and give the cosmetic
industry the false impression that [Whittaker] talcs are
adequately tested for asbestos.” He also criticized defendant’s
use of outside experts instead of doing its own analytical work.
Mr. Eiermann based his comments on Mr. Roesch’s letter
describing defendant’s testing methods and results (pt. 5.m.iii. of
the Facts, ante, at pp. 19–20), and also on other material
concerning defendant’s business volume, sources of supply,
“various quality grades of talc involved,” and its sales catalogue.
From all this he formed the opinion that each type of talc was
tested for asbestos only once a year, and thus that defendant’s
testing was limited.
Defendant contends the Eiermann memo should have been
excluded because it contains multiple levels of hearsay, which it
does. The trial court ruled the memo was admissible under
Evidence Code section 1280, the public records exception to the
hearsay rule. Section 1280 provides: “Evidence of a writing
made as a record of an act, condition, or event is not made
inadmissible by the hearsay rule when offered in any civil or

40
criminal proceeding to prove the act, condition, or event if all of
the following applies: [¶] (a) The writing was made by and
within the scope of duty of a public employee. [¶] (b) The
writing was made at or near the time of the act, condition, or
event. [¶] (c) The sources of information and method and time of
preparation were such as to indicate its trustworthiness.”
The trial court observed that defendant agreed the
memorandum was authentic and was “a business record of the
FDA. As a result, [the memorandum] is admissible under
Evidence Code Section 1280, record by public employee. The
memo is relevant to whether the defendant engaged in
oppression, fraud, or malice.” The court stated Mr. Eiermann
“made the statements on behalf of the FDA in the regular course
of government business,” and section 1280’s conditions (a), (b)
and (c) were met: He was acting in the scope of his employment
at the FDA; the writing was made “at or near the time of the
event, that is, the meeting of the CTFA Talc Subcommittee with
the FDA”; and the sources of information “were such to indicate
to the Court its trustworthiness.”
We conclude the trial court abused its discretion in its
ruling. Not all statements made “in the regular course of
government business” fall within the hearsay exception as “a
record of an act, condition, or event,” even if the three conditions
are met. A report by Mr. Eiermann on the facts of an “event”—
for example, what happened at a meeting of the CTFA Talc
subcommittee with the FDA—may be admissible as a public
record. But Mr. Eiermann’s memo did not report any fact,
condition or event; the trial court was mistaken in concluding the
memo reported on a meeting of CTFA with the FDA. Rather, the
memo stated Mr. Eiermann’s opinions about a letter Mr. Roesch

41
wrote that was among a packet of other letters submitted by
CTFA to the FDA at the meeting. The opinions and conclusions
Mr. Eiermann drew from Mr. Roesch’s letter concerning the
adequacy of defendant’s testing and defendant’s use of outside
testing labs instead of its own testing facilities do not fall within
the hearsay exception.
Plaintiff argues that “factually supported opinions are
admissible even if they appear in official records.” He relies on
Rupf v. Yan (2000) 85 Cal.App.4th 411, 432 (Rupf). Rupf does not
stand for that broad proposition and does not support
admissibility of the Eiermann memorandum.
Rupf involved testimony from a deputy sheriff, as well as
the sheriff’s report he wrote. The deputy testified he detained the
appellant for Welfare and Institutions Code section 5150
observation, based on his determination that the appellant was a
danger to himself or to others. (Rupf, supra, 85 Cal.App.4th at
p. 431.) The court first observed that the deputy “testified as to
his observations and as to appellant’s admissions to him,” and
“no objection was made to introduction of the sheriff’s report
itself.” (Id. at p. 430.) The court held that “[c]learly any
firsthand observations by [the deputy], either were not hearsay
or, if contained in the sheriff’s report prepared by him, were
admissible under the official records exception.” (Id. at p. 431,
italics added.) The observations contained in the sheriff’s report
that were admissible under Evidence Code section 1280 consisted
of the appellant’s admissions to the deputy and the deputy’s
observation that the appellant then became unresponsive. (Rupf,
at p. 431.) These were observations of facts, not opinions.
The court then held, citing Evidence Code section 801, that
the deputy’s opinion that appellant was a danger to himself and

42
should be detained—to which the deputy testified—“was properly
based on the totality of information [the deputy] had at the time
and was properly admitted even if based in part upon hearsay, as
it is apparent the information upon which he relied was that type
routinely relied upon by officers in making decisions of this sort.”
(Rupf, supra, 85 Cal.App.4th at p. 432.) Rupf does not support
the admissibility of a writing that does not contain first-hand
observations, or statements that are admissible under a hearsay
exception such as an admission, by a public employee who does
not testify.
Plaintiff cites a treatise for the proposition that an official
record “is not per se inadmissible under [Evidence Code section]
1280 simply because it contains conclusions or opinions,” and
that the “overriding consideration is whether the information
reported is trustworthy.” (Wegner et al., Cal. Practice Guide:
Civil Trials and Evidence (The Rutter Group 2021) ¶ 8:1706).)
For this the treatise cites Rupf, as well as People v. Flaxman
(1977) 74 Cal.App.3d Supp. 16, 20–21, which stated the same
thing “in passing” (id. at p. 20) and did not involve conclusions or
opinions (see id. at p. 21 [engineering and traffic survey]).
Moreover, other case law, although decades old, supports
the proposition that Evidence Code section 1280—which on its
face applies only to writings made “as a record of an act,
condition, or event”—does not apply to the personal opinions of a
public employee.
Pruett v. Burr (1953) 118 Cal.App.2d 188 (Pruett) recites
approvingly from a treatise that “ ‘a record of a primary fact
made by a public official in the performance of official duty is . . .
competent prima facie evidence as to the existence of that fact,
but records of investigations and inquiries conducted either

43
voluntarily or pursuant to requirement of law by public officers
concerning causes and effects, and involving the exercise of
judgment and discretion, expressions of opinion, and the making
of conclusions, are not admissible in evidence as public records.’ ”
(Id. at pp. 200–201, italics added.)
Pruett stated the rule: “The exceptions to the general
hearsay rule are the official records and reports which public
officers are required to keep or make, either by statute or by the
nature of the duties of their office. [Citation.] Under [now
former] sections 1918, 1920 and 1926 of the Code of Civil
Procedure, if they are the type of records meant and are proved
as required, the entries are prima facie evidence of the facts
stated therein.” (Pruett, supra, 118 Cal.App.2d at p. 201, italics
added.) Pruett held that copies of letters to third parties and
interdepartmental memoranda were “not public records within
the meaning of [now former] sections 1920–1926 of the Code of
Civil Procedure. They are not entries made in public or other
official books or records as required by those sections, but are
only letters by officials to third persons, and copies of
interdepartmental memorandums.” (Ibid.)
Plaintiff points out that Pruett was decided 12 years before
the enactment of Evidence Code section 1280, and contends it “is
not controlling in light of the later-enacted statutes and the
subsequent opinions” (citing Rupf). As we have seen, Rupf does
not help plaintiff. The Law Revision Commission Comments to
section 1280 state that “[s]ection 1280 restates the substance of
and supersedes Section 1920 and 1926 of the Code of Civil
Procedure”; the comments nowhere state section 1280 refutes
former law.

44
 Plaintiff offers no other precedents or authorities involving
the admissibility under Evidence Code section 1280 of the
personal opinion of a public employee in an internal
memorandum which does not report first-hand observations of
facts or hearsay admissible under some other exception to the
hearsay rule. In the absence of contrary authority, we adhere in
this case to the principle that expressions of opinion, as opposed
to reports of facts, by a public employee, do not constitute “a
record of an act, condition, or event” (ibid.) within the meaning of
the public records exception to the hearsay rule.
DISPOSITION
The portion of the judgment on the jury verdict awarding
punitive damages to plaintiff is reversed. The trial court is
directed to vacate the judgment and enter a new judgment in
accordance with this opinion. Defendant shall recover its costs on
appeal.

GRIMES, Acting P. J.
I CONCUR:

HARUTUNIAN, J.*

* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

45
WILEY, J., Dissenting.
This appeal poses two large issues. One is whether
appellate courts will draw reasonable inferences in favor of the
verdict we review. I would do that. It is required, as well as
sensible, that we defer to reasonable jury decisions about factual
questions, and this jury decision was reasonable. The other large
issue is whether appellate courts will allow punitive damages to
give businesses the proper incentive to promote public safety.
Courts should allow punitive damages to perform this beneficial
function.
I
Whittaker stopped selling raw asbestos in 1971 because it
“didn’t want the liability.” That same year, Whittaker started
testing its talc for asbestos. Some tests detected asbestos.
Frederick Roesch—Whittaker’s corporate officer and managing
agent, as Whittaker conceded in oral argument—knew about
these bad results in 1972. Yet in 1976 Roesch wrote in substance
that “all” the asbestos testing showed no asbestos had been
detected in this talc. This claim was untrue. By concealing an
unpleasant truth, Roesch omitted a material fact. The jury was
entitled to decide this omission was deliberate and the letter was
fraudulent, which supports punitive damages.
I append Roesch’s 1976 letter and urge readers to examine
it carefully, as we presume the jury did. (See appendix A, post,
pp. 6–7.) Taken in the light favorable to the verdict, this letter is
damning.
The letter began by announcing Whittaker had instituted a
testing program in 1971 “to insure customers using our . . . talcs
that they are free from fibrous asbestos.” (Italics added.) After
describing testing methods, the letter recounts the results:

1
“These reports were based on approximately 74 ground ore
samples analyzed over a period of four years all of which showed
non-detectable amounts of fibrous asbestos form minerals.”
(Italics added.)
Rule number one in a substantial evidence review “is to
view the record in the light most favorable to the judgment
below.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1008
(O.B.); see also id. at p. 1011.) Both sides agree the O.B. decision
states our standard of review.
Reading Roesch’s letter in the light favorable to plaintiff
McNeal, its message is simple, bland, and reassuring: We at
Whittaker are concerned about the danger of asbestos in our talc,
so we tested and “all” the tests were clean.
This reassuring message was false. The talc was not free
from asbestos.
Whittaker’s corporate representative candidly confirmed to
the jury the tests had turned up asbestos. Indeed, in 1972
Whittaker’s consultant wrote, with my italics, he was “again
detecting asbestos” in Whittaker’s talc.
Rule number two of substantial evidence review is we
“indulge reasonable inferences that the trier of fact might have
drawn from the evidence.” (O.B., supra, 9 Cal.5th at p. 1008; see
also id. at pp. 1011–1012.)
The reasonable inference is Roesch left out the bad fact to
yield to an instinct as old as human nature: deny, deny, deny.
Here is a bad fact. Cover it up. Coverups are dishonorable and
usually counterproductive, but they are persistent. Everyone
recognizes the urge. How easy it is to shrink from embarrassing
or alarming confessions. No one enjoys admitting what is
discreditable. But everyone also knows of spectacular and

2
continuing examples of coverups gone wrong. It seems people
never learn. Tort law should encourage them to learn.
Jurors were entitled to conclude Roesch deliberately
omitted the bad material fact because he gave in to the universal
human weakness, which also served his company’s interest—at
least in the short run. Tort law should encourage corporate
executives to think about the long run.
An appellate court must and should indulge this reasonable
inference in support of the judgment. Why? Because this is the
law. (O.B., supra, 9 Cal.5th at p. 1008.) And because appellate
courts do right by crediting jurors with rationality. If we can
perceive a logical inference, we should assume jurors could too.
Generally appellate courts credit jury factual determinations
because jurors saw the evidence in context and because we have
faith in the jury system. On factual determinations, deference to
jurors is sensible and traditional.
Whittaker says its testing showed only “trace” amounts of
asbestos. That defense is feeble. No one contends there is some
safe level of asbestos. A “trace” of a toxin is a major problem.
Whittaker’s letter could have said it found only a little asbestos,
which would have been like a manufacturer saying its corn flakes
contain only a little cyanide or the cake flour has just a bit of
anthrax. Whittaker took the easy and dishonest route: skip the
bad fact entirely.
Whittaker argues the link between asbestos and the
particular kind of cancer called mesothelioma was not
scientifically established until later. That does not matter
because, by 1976, Whittaker knew asbestos was dangerous. That
is why in 1971 it stopped selling raw asbestos and began testing
talc for it.

3
 Can this evidence support a “high probability” of fraud?
(O.B., supra, 9 Cal.5th at p. 998.) Yes: it is powerful proof of
fraud. It puts the lie to all of Whittaker’s many words about
being a fine corporate citizen. A fine corporate citizen does not
hide bad facts. The mask need slip only once for the audience to
see the truth.
Whittaker asks us to reweigh the evidence by taking full
account of other proof. This is unavailing. The California
Supreme Court in O.B. “emphasize[d]” that our appellate review
“does not reweigh the evidence itself.” (O.B., supra, 9 Cal.5th at p.
1008, italics added.) “Putting everything in context” is
reweighing the evidence. This invades the province of the jury.
Whittaker recounts all the things it did right, but the standard of
review means rejecting this invitation to rebalance everything.
II
Punitive damages promote consumer safety. A proper
punitive damages award is part of a traditional and rational
system that serves our society as a whole.
The logic is straightforward. When a firm fails to take
proper safety precautions, tort law forces it to internalize the
costs of resulting injuries, thus prompting firms to invest more in
safety. (E.g., Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d
453, 462 (conc. opn. of Traynor, J.) (Escola) [“public policy”
demands responsibility be fixed wherever it will most effectively
reduce injury hazards]; Kesner v. Superior Court (2016) 1 Cal.5th
1132, 1150, 1153 [courts assign tort duty to ensure those best
situated to prevent injuries are incentivized to do so]; cf. Sharkey,
Modern Tort Law: Preventing Harms, Not Recognizing Wrongs
(2021) 134 Harv. L.Rev. 1423, 1432–1454 [surveying California’s
leadership since Escola].)

4
 If the tortfeasor takes steps to minimize the odds it will get
caught, tort law must magnify the damages beyond compensation
to the victim. As Judge Posner wrote, “If a tortfeasor is ‘caught’
only half the time he commits torts, then when he is caught he
should be punished twice as heavily in order to make up for the
times he gets away.” (Mathias v. Accor Economy Lodging, Inc.
(7th Cir. 2003) 347 F.3d 672, 677.) Professors Polinsky and
Shavell summarized this analysis decades ago. (Polinsky &
Shavell, Punitive Damages: An Economic Analysis (1998) 111
Harv. L.Rev. 869.) The concept goes back to Bentham. (Id. at p.
876, fn. 12.)
Court decisions affect corporate behavior: they establish
incentives. Bad incentives can create more danger to the public
than is wise. Tort law should encourage firms to come clean. If
the law does not penalize concealment, the public will suffer.
Certainly the McNeal family wishes the truth about Whittaker’s
asbestos had come out sooner.

WILEY, J.

5
APPENDIX A

6
7