Opinion

LAOSD Asbestos Cases

Court: California Court of Appeal
Filed: Mar 4, 2026
Status: Published
Cited by: 0 cases
Authority: More cited than 39.0%

The opinion

Filed 2/11/26; Certified for Publication 3/4/26 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

LAOSD ASBESTOS CASES B327749

_______________________________

(Los Angeles County

GARY CHAPMAN, Individually Super. Ct. No. 22STCV05968)

and as Personal Representative, Case No. JCCP 4674

etc.,

Plaintiff and Respondent,

AVON PRODUCTS, INC.,

Defendant and Appellant.

_______________________________

GARY CHAPMAN, Individually B330345

and as Personal Representative,

etc., (Los Angeles County

Super. Ct. No. 22STCV05968)

Plaintiff and Appellant,

AVON PRODUCTS, INC.,

Defendant and Respondent.

CONSOLIDATED APPEALS from a judgment of the

Superior Court of Los Angeles County, Lawrence P. Riff, Judge.

Affirmed.

Orrick, Herrington & Sutcliffe, Amari L. Hammonds, Lisset

Pino, Geoffrey Shaw, Robert M. Loeb, Upnit K. Bhatti; Foley

Mansfield and Margaret I. Johnson for Defendant and Appellant.

Shook, Hardy & Bacon and Andrew Trask for Coalition for

Litigation Justice, Inc. as Amicus Curiae in support of Defendant

and Appellant.

Gutierrez, Preciado & House and Calvin House for Civil

Justice Association of California as Amicus Curiae in support of

Defendant and Appellant.

Dean Omar Brenham Shirley, Lisa W. Shirley, Jessica M.

Dean and Benjamin H. Adams for Plaintiff and Respondent.

_______________________

Rita-Ann Chapman began using Avon talcum powder

products in 1954, when she was 8 years old. She used the

products multiple times per week until 1978; she resumed her

use in 1995 and continued it until 2010. At some point before

2021, she was diagnosed with mesothelioma, a disease caused by

exposure to asbestos. Avon was not the only possible source of

Mrs. Chapman’s exposure to asbestos. In addition to using other

cosmetic products, Mrs. Chapman alleged she was exposed to

asbestos through her husband Gary Chapman’s work on

automotive brakes. In 2021, she and her husband brought this

damages action against several dozen defendants, primarily in

the cosmetics and automobile brake industries. By the time trial

started, only Avon and Hyster-Yale Group, Inc. remained as

defendants. Hyster-Yale Group, Inc. is not a party to this appeal.

Mrs. Chapman died on March 16, 2025, and her husband Gary

Chapman is her successor-in-interest.

After a lengthy trial, the jury returned a special verdict in

plaintiffs’ favor, finding Avon strictly liable for selling products

with inadequate warnings and with defects in manufacture and

design. The jury also found Avon liable for negligence,

fraudulent misrepresentation, and fraudulent concealment. It

found Avon had acted with malice, oppression, or fraud,

warranting punitive damages. The jury awarded compensatory

damages to the Chapmans in the amount of $40,831,453, and

punitive damages in the amount of $10.3 million. Avon was

apportioned to be 90 percent at fault.

Avon now appeals with four claims of error, three very

narrow and one very broad. Avon contends the trial court erred

in 1) admitting the testimony of the Chapmans’ expert witness

Dr. William Longo about the presence of one form of asbestos in

Avon talc products; 2) excluding the testimony of Avon’s witness

Lisa Gallo on the ground that she was not properly disclosed;

3) permitting the Chapmans’ expert witness Dr. Steven Haber, a

medical doctor, to opine on methods of asbestos testing and the

meaning of Avon’s internal documents. Avon also contends there

is no reliable evidence that Avon talc products contained asbestos

or that those products (or asbestos) caused Mrs. Chapman’s

mesothelioma. 1

1 Five notices of appeal were filed by these parties after the

trial concluded. Not all were briefed. We asked the parties to

advise us of the status of each notice of appeal and received

supplemental letter briefs from the Chapmans and from Avon.

The Chapmans advised us that their three notices of appeal (two

under Case No. B327749 and one under Case No. B330345) may

be dismissed. We do so now. The Chapmans’ notice of appeal

Avon has waived its challenge to the sufficiency of the

evidence and part or all of each of its challenges to the admission

or exclusion of evidence. Further, Avon has failed to show error

or abuse of discretion in the trial court’s evidentiary rulings. The

judgment is affirmed.

BACKGROUND

This was a lengthy and complicated trial, but it essentially

involved two issues: 1) whether there was asbestos in Avon’s talc

products at the time Mrs. Chapman used those products; and

2) whether asbestos in talc products can cause, and did cause, her

mesothelioma.

Mrs. Chapman used Avon talc powder products primarily

from 1954 to 1978, and again from 1995 to 2010. By way of

general background, in cases such as this, where the plaintiff’s

use of talc products goes back 50 or more years, proving the

composition of the talc products is a major challenge for the

plaintiff. Few, if any, individuals retain samples of every product

they have used over their lifetime.

(filed April 24, 2023) and notice of cross-appeal (filed May10,

2023) in Case No. B327749, and notice of appeal filed May 10,

2023 in Case No. B330345 are dismissed.

Avon advised us that its first notice of appeal was from the

initial judgment and its second notice of appeal was from an

amended judgment later issued by the trial court. It believes its

two appeals (all under Case No. B327749) are operative. We

agree.

A. The Chapmans Produced Evidence That Avon Talc

Products Contained Asbestos

“Asbestos” generally refers to a group of six minerals—

chrysotile, and the five amphiboles of amosite, crocidolite,

tremolite, anthrophyllite, and actinolite. Amphibole asbestos is

more potent at causing disease than chrysotile. The types of

asbestos fibers found in talc are chrysotile and non-commercial

amphiboles tremolite and anthophyllite. (“Non-commercial”

means these types of fibers are not found in asbestos products

sold for commercial use.)

The Chapmans took a multi-pronged approach to proving

the presence of asbestos in Avon talc products. They relied on

Avon’s own documents to show the presence of asbestos in its talc

products in the early 1970’s. They relied on studies showing the

presence of asbestos in the mines which were Avon’s source of

talc for its products. They retained an expert to test new samples

from some of those source mines. They acquired vintage

containers of Avon talc products, from a variety of sources, which

their expert tested. (It is now undisputed that there is no way to

remove asbestos from talc.)

The Chapmans offered multiple Avon documents from the

early 1970’s. In an October 1971 memo, Avon acknowledged

asbestos in four sources of Avon’s talc (coded 0768, 0755, 0761

and 0810), as high as 12 percent tremolite. In another October

1971 memo, Avon acknowledged “there is always a strong

possibility that asbestos may be found in any given talc deposit.

Furthermore, there is no guarantee that the mineralogical

composition of a given vein will remain constant throughout that

vein.”

In a December 1971 memo, Avon stated that “United

Sierra’s talc code 0777, Canadian 0810, and Desert 507 talc code

0761, all contain the asbestos form called Tremolite and we

recommend that their use in any Avon product be discontinued

immediately.” The memo showed that Avon’s talc sources

contained up to 10 percent asbestos.

In a January 1972 memo, Avon’s Talc W.S. source was

reported to have 20–25 percent tremolite, described as “[l]argely

fibrous,” “very abundant”, and “[v]ery poor and possibly

dangerous.” A March 1972 Avon memo included an attachment

showing that analysis of Alabama, North Carolina, Desert,

Sierra, Talc W.S., and Canadian talcs showed that all contained

tremolite, reaching up to 25 percent.2

A different March 1972 Avon memo showed that Avon’s

Sierra, Canadian, Desert and Talc WS talc all contained more

than 1 percent tremolite asbestos. In response Avon simply

directed all laboratories to exhaust their supplies. Avon’s

domestic talc sources, other than North Carolina, were “marginal

at best.”

In an August 1972 memo, Avon noted that its Tai Winds

Spray Talc contained “appreciable amounts of tremolite and

possibly chrysotile.” This appears to have been derived from a

report from McCrone labs showing that one of Avon’s talc

products and a talc source contained 10–15 percent tremolite,

and asbestiform tremolite on the order of 1–1.5 percent. In

2 We note that this analysis contains only the word

“tremolite.” For Talc W.S. it shows 20–25 percent tremolite, the

same number given in the January 1972 memo. This supports a

reasonable inference that the tremolite in this analysis refers to

asbestos tremolite.

November 1972, Avon admitted “samples of each of our current

talcs will contain asbestos forms, particularly tremolite[.]” In

December 1972, Avon determined it was not feasible to remove

tremolite from its talc.

The Chapmans also offered evidence that talc from mines

used by Avon was contaminated with asbestos. A September

1973 memo showed that Avon’s historical testing of Italian,

Alabama, North Carolina, and Montana talc sources all detected

asbestos between 0.1–2 percent.

The Chapmans’ material science engineering expert Dr.

William Longo was also qualified as an expert in asbestos

analysis for bulk samples. Dr. Longo’s laboratory, Materials

Analytical Services, is the only laboratory in the country

accredited for analyzing cosmetic talc products for amphibole

asbestos using both Polarized Light Microscopy (PLM) and

Transmission Electron Microscopy (TEM).

Dr. Longo tested over 90 samples of Italian talc by

examining vintage bottles of Colgate’s Cashmere Bouquet. Over

77 percent of the samples tested positive for amphibole asbestos.

According to Dr. Longo, multiple labs validated his test results.

These labs tested in the 1950’s at least through the 1970’s;

Battelle and Pfizer labs reported positive findings of asbestos in

the talc. Dr. Longo testified that amphibole asbestos in Italian

talc has also been reported in published, peer-reviewed literature.

Testing of other talcs sourced from the same Italian and North

Carolina mines repeatedly showed a high percentage of

amphibole asbestos, primarily tremolite and some anthophyllite.

Published literature documents that Avon’s source talcs from

California mines showed high levels of tremolite asbestos in

ranges from 5 percent up to 70 percent.

In addition, as discussed in more detail below, Dr. Longo

revived an older testing method which detected chrysotile

asbestos in most Avon talc products he was able to test. He also

applied this older method to other companies’ cosmetic talc

products and to talc samples.

The Chapmans’ medical expert Dr. Steven Haber testified

there are “published papers, internal studies by companies, FDA

data talking about how much asbestos gets into the air even

when a product has less than one percent” asbestos. For cosmetic

talc, even without knowing weight, the range is “somewhere

around” between .1 to 4 fibers per [cubic centimeters].” This was

far higher than the background level of asbestos in the air and

was not safe.

B. The Chapmans Offered Expert Testimony That Exposure to

Asbestos, Including Asbestos Mixed with Talc, Is a

Substantial Factor in Causing Mesothelioma.

The Chapmans’ expert biologist Dr. Arnold Brody testified

that all six types of asbestos fibers cause asbestos diseases,

including mesothelioma. In the scientific literature reviewed by

Dr. Brody, asbestos was the “overwhelming” cause of

mesothelioma. The scientific consensus is that a history of

occupational, domestic or environmental asbestos exposure is

sufficient to attribute the cause of mesothelioma to asbestos. Dr.

Brody explained asbestos is a cumulative dose disease and all

asbestos exposures contribute to mesothelioma. The scientific

literature recognizes even low doses of asbestos exposure can

cause mesothelioma, and “there’s no safe level above background

for . . . any of the asbestos varieties in causing mesothelioma.”

Dr. Brody opined that levels of asbestos in talc products

above the background level of asbestos would be a substantial

factor in causing mesothelioma in a person exposed for decades.

The Chapmans’ biostatistics expert Dr. David Madigan

testified about studies of Vermont talc workers showing

mesothelioma in 2 out of 400 workers, significantly more than the

rate of persons not exposed to talc or asbestos, which is only 2.1

per million. He testified that the rate at which women have been

diagnosed with mesothelioma is not decreasing as quickly as the

rate of mesothelioma among men, and “[o]ne explanation is talc.”

Dr. Madigan opined, based on Dr. Longo’s tests finding

asbestos in 72 out of 93 (77 percent) bottles with talc sourced

from Italian mines, that Mrs. Chapman’s odds of not being

exposed to asbestos in any product containing Italian talc were

10 trillion times smaller than the probability of winning the

Powerball lottery. He further calculated that if she used

50 bottles of Italian talc, she would likely be exposed to between

30 and 45 bottles with asbestos.

According to Dr. Haber, FDA publications warn that the

amount of asbestos fibers dispersed from using talc would exceed

occupational limits for asbestos exposure. The FDA also stated

short exposures of even one day increase the risk of

mesothelioma. Published studies establish asbestos product

users are at even greater risk of developing asbestos-related

diseases than asbestos miners and millers. There have been over

100 cases published in the scientific literature where

mesothelioma develops in a person whose only known asbestos

exposure is from cosmetic talc.

C. The Chapmans’ Medical Expert Dr. Haber Opined That

Asbestos in Avon Talc Products Caused Mrs. Chapman’s

Mesothelioma to a Reasonable Medical Certainty.

Dr. Haber explained talc could have entered Mrs.

Chapman’s body either through her breathing airways, or

through the entrance to her female genital tract when using talc

in her underwear. He considered Mrs. Chapman’s history of

decades of using Avon loose body powder or face powder with a

frequency of “several times a week,” totaling hundreds to

hundreds of thousands of times. He accounted for the proximity

of her exposures, which were applied directly to her body and

face. The intensity of Mrs. Chapman’s exposures would have

been between 0.1 to 4 fibers per cubic centimeter. Her exposures

to Avon began in childhood, which increased her risks of

developing cancer. Plus, “once asbestos gets in the home, it

doesn’t leave the home.” Mrs. Chapman’s use of Avon facial

powders alone was sufficient asbestos exposure to cause her

mesothelioma. Haber opined, to a reasonable degree of medical

certainty, that her use of Avon’s powder was a substantial factor

in her mesothelioma.

D. Avon Offered Expert Testimony in Its Own Defense.

Avon offered evidence of its own testing and testing by

outside laboratories which did not show asbestos in Avon’s talc.

Avon also offered evidence that the FDA has declined to require

warnings on cosmetic talc, and in 1986 it concluded that cosmetic

talc did not pose a health hazard.

Avon’s expert Dr. Alan Segrave tested actual talc samples

from the mines where Avon sourced the talc in products used by

Mrs. Chapman, including Val Chisone in Italy, North Carolina,

Montana, and Guangxi in China. He found no asbestos.

Avon also pointed to studies finding no meaningful

connection between exposure to asbestos-free talc and

mesothelioma. Avon also pointed to studies which attributed

only 20 to 30 percent of mesothelioma cases to asbestos exposure

(although the testimony about those studies does not reveal

whether the remaining 70 to 80 percent of mesotheliomas were

attributed to other mechanisms or could not be attributed to any

causal mechanism).

Avon offered testimony from its own experts about studies

showing women’s mesothelioma rates have remained relatively

flat over the decades even as asbestos use has risen and fallen.

In addition, an Avon expert testified that many mesotheliomas

are spontaneous or genetic.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Admitting

Dr. Longo’s Testimony About Chrysotile Testing.

Avon contends the trial court erred in admitting the

testimony of the Chapmans’ expert witness Dr. William Longo

about the presence of chrysotile asbestos in talc in Avon products.

Specifically, Avon contends Longo’s expert testimony was based

on new scientific techniques and so the trial court was required

“to ensure Plaintiffs met their burden under the Kelly/Frye

standard to establish that Longo’s method has ‘ “general

acceptance ”’ in the relevant scientific community. (Sargon

Enterprises, Inc. v. [University of Southern California] (2012)

55 Cal.4th 747, 772, fn. 6 (Sargon).)” Avon contends the trial

court was also required to ensure that the expert opinion was

scientifically supported and not based on speculation. Avon

argues the trial court failed in these duties and its error in

permitting Longo’s improper expert testimony was highly

prejudicial. We see no abuse of discretion in the admission of the

testimony.

In People v. Kelly (1976) 17 Cal.3d 24 (Kelly), the California

Supreme Court adopted “[t]he test for determining the

underlying reliability of a new scientific technique . . . described

in the germinal case of Frye v. United States (D.C. Cir. 1923) 293

F. 1013, 1014, involving the admissibility of polygraph tests: ‘Just

when a scientific principle or discovery crosses the line between

the experimental and demonstrable stages is difficult to define.

Somewhere in this twilight zone the evidential force of the

principle must be recognized, and while courts will go a long way

in admitting expert testimony deduced from a well-recognized

scientific principle or discovery, the thing from which the

deduction is made must be sufficiently established to have gained

general acceptance in the particular field in which it belongs.’

(Italics added.)” (Kelly, at p. 30.)

In Sargon, the California Supreme Court further explained:

“under Evidence Code sections 801, subdivision (b), and 802, the

trial court acts as a gatekeeper to exclude expert opinion

testimony that is (1) based on matter of a type on which an expert

may not reasonably rely, (2) based on reasons unsupported by the

material on which the expert relies, or 3) speculative.” (Sargon,

supra, 55 Cal.4th at pp. 771–772.) The Supreme Court noted

that other provisions of law, including Kelly, “may also provide

reasons for excluding expert opinion testimony.” (Id. at p. 772 &

fn. 6.)

“The trial court’s preliminary determination whether the

expert opinion is founded on sound logic is not a decision on its

persuasiveness. The court must not weigh an opinion’s probative

value or substitute its own opinion for the expert’s opinion.

Rather, the court must simply determine whether the matter

relied on can provide a reasonable basis for the opinion or

whether that opinion is based on a leap of logic or conjecture.

The court does not resolve scientific controversies. Rather, it

conducts a ‘circumscribed inquiry’ to ‘determine whether, as a

matter of logic, the studies and other information cited by experts

adequately support the conclusion that the expert's general

theory or technique is valid.’ [Citation.] The goal of trial court

gatekeeping is simply to exclude ‘clearly invalid and unreliable’

expert opinion. [Citation.] In short, the gatekeeper’s role ‘is to

make certain that an expert, whether basing testimony upon

professional studies or personal experience, employs in the

courtroom the same level of intellectual rigor that characterizes

the practice of an expert in the relevant field.’ ” (Sargon, supra,

55 Cal.4th at p. 772.)

“Except to the extent the trial court bases its ruling on a

conclusion of law (which we review de novo), we review its ruling

excluding or admitting expert testimony for abuse of discretion.”

(Sargon, supra, 55 Cal.4th at p. 773.)

1. The Trial Court’s Ruling

The trial court expressly found that Avon did not make a

Kelly challenge to Dr. Longo’s expert testimony. This is amply

supported by the record. The court specifically asked Avon

whether its challenge to Dr. Longo’s chrysotile detection testing

was “a Kelly challenge, a Sargon challenge, or both? And maybe

another way to ask the question is Kelly now subsumed within

Sargon?” Avon’s counsel replied that Kelly was “subsumed”

within Sargon. The court then clarified: “So if that’s true, then

novelty in and of itself is not determinative?” Avon’s counsel

replied: “Correct. Correct. I think the focus of this is frankly

reliability. I think the question for this court is whether Dr.

Longo can sit on that stand and tell this jury that he reliably and

conclusively found chrysotile [in] talcum powder samples by

relying solely on this concentration technique and PLM alone.”

The trial court did consider the alleged novelty of Longo’s

technique as part of its reliability analysis. Nonetheless, Avon

has waived any claim that the trial court should have undertaken

a strict Kelly analysis and required proof that Longo’s method

was “generally accepted” in the scientific community. Put

differently, Avon has waived any claim that Longo’s method was

novel and required a Kelly analysis.3

3 Avon points out that the trial court later acknowledged

that Avon had made a novelty challenge in its written motion to

exclude Dr. Longo’s testimony. This does not change our

forfeiture analysis. The sequence of events was: Avon filed its

motion; about a week later Avon agreed the issue was reliability,

not novelty; and about two weeks later the trial court later

acknowledged that Avon had (earlier) made a novelty argument

in its motion. As the trial court then pointed out “I don’t think

that’s what we have. I think what we have is a challenge under

Sargon . . . to the admissibility of an expert opinion.”

If we had any doubt about the trial court’s meaning, the

trial court stated after trial concluded: “I also want to note that

Avon argued in its motion for [a] new trial that it made a Kelly

challenge to Dr. Longo, which it didn’t.” The court expressly

described Avon as changing its position.

The trial court ultimately found Dr. Longo’s testimony

reliable “as against a challenge under Sargon [and] Evidence

Code [sections] 801, 802, and 803. I’m called upon as a

gatekeeper here to make a determination, which is described as a

circumscribed inquiry, to determine whether it’s a matter of logic,

the studies and other information cited by Dr. Longo adequately

supports the conclusion that the expert’s general theory or in this

case, I think, technique is valid. [¶] And I perceive the Sargon

standard is for a court to exclude clearly invalid and unreliable

expert opinion. And the court cannot say that Dr. Longo’s expert

opinion is clearly invalid and unreliable. [¶] I do find from his

extended testimony and the foundation established, that as a

matter of logic, the studies and other information he relied upon,

adequately support his conclusion that his general theory or

technique is valid.”4

2. Analysis

Dr. Longo was qualified as an expert in asbestos analysis

for bulk samples. His laboratory is the only laboratory in the

country accredited for analyzing cosmetic talc products for

amphibole asbestos by both PLM and TEM testing.

4 Avon notes the trial court “itself commented that it could

‘not completely follow[] the logic trail of Dr. Longo’s technique.’ ”

Avon fails to mention that the trial court made this remark very

early in Dr. Longo’s testimony and explained that it was speaking

mostly to the Chapmans’ counsel and knew counsel was not

finished with their presentation. The trial court identified areas

it was having difficulty with, and then stated: “So what I plan to

do is add time on the clock to plaintiff to permit a further

expansion to the extent plaintiff wants to use it on this—these

points.”

Dr. Longo’s technique for testing to detect chrysotile

asbestos in talc had essentially three parts: 1) preparation of the

sample to be tested; 2) the actual testing; and 3) analysis of the

test results.

a. Preparation of the sample

Dr. Longo used double density heavy density liquid

separation to prepare samples for chrysotile testing. The basic

technique was very old, as illustrated by miners who panned for

gold in streams. The more modern double density technique had

first been used at the Colorado School of Mines in 1973, in work

it did for Johnson & Johnson to detect not only amphibole

asbestos but also chrysotile in talc samples. Dr. Longo learned of

this technique in 2019. His lab refined this Colorado School of

Mines sample preparation method. Thus, to the extent that

novelty is a factor in determining reliability, this was not a novel

technique.

Avon contends Dr. Longo admitted at trial that even the

Colorado School of Mines and the FDA’s International

Organization of Standards (ISO) 22262 asbestos testing study,

produced by the FDA’s Interagency Working Group on Asbestos

in Consumer Products, recognize that trying to identify chrysotile

using heavy liquid density testing is “not practical.” At those

record cites, we see no admission by Dr. Longo that the Colorado

School of Mines recognized using heavy liquid density testing was

not practical. Indeed, Longo explained that chrysotile was very

close to talc and so “everybody was just looking for amphiboles.

Even the ISO 22262 method says, ‘Theoretically, it is possible to

do heavy liquid density for chrysotile, but [it is] not practical.’ So

we never ventured into that until we found some documents from

Johnson & Johnson [about the Colorado School of Mines

method].”

Avon further claims Dr. Longo used the wrong mineral

sample, Calidria chrysotile from Coalinga, as a baseline sample

for his testing because that particular form of chrysotile is not

used in cosmetic talc products.

Dr. Longo did not claim to have selected Coalinga

chrysotile because it was used in Avon products, or even in other

cosmetic talc products. His explanation for using Coalinga

chrysotile was that as it naturally occurred, it was short and had

approximately the same size and characteristics of the chrysotile

fibers, which were found in cosmetic talc after it has been ground

and milled.

b. Testing the sample and talc products

Dr. Longo then analyzed the baseline sample (and

subsequent samples from Avon products) using PLM. PLM is an

optical microscopy tool used to identify asbestos minerals since

the 1960s. PLM identifies minerals by using special polarized

lenses to calculate their refractive indices, which is the speed of

light through the air versus the speed of light through the

crystalline mineral. The wavelengths of light are measured and

there is a corresponding dispersion or refraction of the color

associated with that distance. Certain wavelengths (or colors)

are specific to each type of asbestos fiber. Two polarizers are

used, one measuring the wavelengths of light on a parallel angle

(gamma) and one through a perpendicular angle (alpha). The

difference between those two measurements is called the

birefringence, a value that is unique to each mineral. Again, to

the extent novelty is a factor in determining reliability, PLM is

not a novel method.

Avon complains that Dr. Longo had previously testified

that PLM is not appropriate to evaluate talcum powder products.

Avon cites deposition testimony from two much earlier cases,

before Dr. Longo learned of the Colorado School of Mines method

of preparation. Its third citation is to Dr. Longo’s deposition in

this case; we see no testimony in the four cited deposition pages

that PLM is inappropriate for the samples Dr. Longo prepared

using the liquid separation method.

Avon also contends that the FDA’s Interagency Working

Group on Asbestos and Consumer Products recognized that PLM

is “regarded to have limited or no utility for detection of

chrysotile in talc or talc[-]containing cosmetics.” This does not

give a complete picture of the utility of PLM. The FDA’s study,

ISO 22262, states that “for all varieties of amphibole asbestos,

and most varieties of chrysotile, a large proportion of the mass

comprises [of] fibres that exceed [the minimum] width and,

because of this, asbestos can be reliably detected by PLM. . . . [¶]

One commercial source of chrysotile presents problems of

detection by PLM. Chrysotile originating from the Coalinga

deposit in California, USA, contains no fibrils longer than

approximately 30 µm and, if these are well dispersed in a sample

matrix, the majority of the chrysotile is below the size that can be

reliably detected and identified by PLM. . . . If, on the basis of

PLM examination, Coalinga chrysotile is suspected to be present,

it is recommended that the sample be examined by electron

microscopy. [¶] Asbestos fibres may not be detected by PLM

because they are obscured by the matrix of the sample.” (Italics

added.) As Longo explained at trial, the problems recognized by

the ISO are the problems which Longo overcame by using the

Colorado School of Mines method: concentrating the chrysotile

fibers so that they were not dispersed across the sample matrix.

c. Analysis of test results

As a result of using PLM on the sample, Dr. Longo obtained

a “birefringence” for the sample. He used PLM on an Avon talc

product and found a mineral with a birefringence which matched

that of his sample. He opined that these results showed that

chrysotile was present in the Avon talc product.

Dr. Longo confirmed his findings by matching the

refractive index range he found with the reported chrysotile

refractive index ranges in the published literature, including

published work by Dr. Walter McCrone and Dr. Shu-Chun Su,

two experts in the field of testing asbestos. The findings were

also within the range of refractive indices for chrysotile published

by the Environmental Protection Agency.

Dispersion staining of Dr. Longo’s sample produced a

yellow color under PLM. Avon contends Dr. Longo misused the

industry standard color charts for interpreting birefringence

created by its expert Dr. Su. Dr. Longo’s sample produced a

yellow color under PLM. Avon contends the Su color chart

indicates asbestos should be blue or magenta.

Dr. Longo considered the Su chart, but also data from the

McCrone lab. According to Dr. Longo, McCrone showed in 1974

there are at least 30 variations of chrysotile fibers that have

different parallel and perpendicular wavelengths in high density

liquid. One grade of the Calidria chrysotile, SG-210, a finer

milled chrysotile, is most consistent with the particle size and

characteristic found in cosmetic talc. While dispersion staining of

the long fiber chrysotile typically results in a blue to magenta

color, the shorter fiber Calidria chrysotile can produce a range of

colors which includes golden yellow.

Avon also contends that Dr. Longo’s testimony is not

reliable because he did not validate his results using TEM. Avon

claims that “Longo does not use TEM to validate his findings

because he knows TEM would not give him the results he

wanted.” This claim is in no way supported by the record cites

provided by Avon. It is neither helpful nor proper for Avon to

ascribe improper motives to Dr. Longo.

Dr. Longo explained that in the past he agreed that TEM

was the best way to detect chrysotile, but that TEM has only

been necessary when the sample involves single fibers of

asbestos. Dr. Longo’s sample preparation produces bundles of

chrysotile, which are detectable by PLM. In his view, TEM

remains the best way to detect only single, not bundles of,

asbestos fibers.

We conclude Avon did not make a challenge under Kelly to

Longo’s expert testimony and the trial court did not abuse its

discretion in finding Longo’s testimony about his testing methods

and results admissible under Sargon. Avon simply presented

different expert opinions, which the jury did not accept.

Although Avon’s experts challenged Dr. Longo’s testimony,

detection of asbestos has been evolving for 50 years and Avon was

unable to show that Longo’s testimony and methods were

illogical, clearly unreliable, or based on invalid scientific theories.

B. The Trial Court Did Not Abuse Its Discretion in Excluding

Avon Witness Lisa Gallo.

On September 7, 2022, Avon filed its witness list for trial,

which identified three categories of witnesses: expert, corporate,

and treating physicians. Avon listed Ms. Lisa Gallo in the

corporate witness category. In the “Brief Description of

Testimony” column, Avon wrote “Avon’s Person Most

Knowledgeable.” The Chapmans also listed Ms. Gallo on their

witness list and described her as “Avon Corporate

Representative.” The Chapmans described certain witnesses as

expert witnesses but did not describe the remaining witnesses as

lay witnesses. For example, numerous witnesses are described as

“Mr. Chapman’s coworker.”

During trial, the Chapmans announced they no longer

intended to call Ms. Gallo due to time constraints. They filed a

motion to preclude Avon from calling her as a witness. This

motion was consistent with the Chapmans’ long-held position

that Ms. Gallo’s testimony as a person most qualified (PMQ) to

speak for Avon would be inadmissible hearsay if offered by Avon,

but the Chapmans could elicit hearsay statements from her as a

corporate representative under the party admissions exception to

the hearsay rule.

The trial court granted the Chapmans’ motion to exclude

Ms. Gallo’s testimony. Avon contends the trial court “did so

based on its view that Avon had not identified [Ms.] Gallo ‘as

having first-hand knowledge’ simply because it listed her on the

witness list as a ‘corporate witness’ and it did not specifically

label her as a ‘fact witness.’ ”

Avon contends the trial court erred in so ruling because the

court’s exclusion of Ms. Gallo over her witness list designation

cannot be squared with the California disclosure rules. Avon

claims we should review this claim de novo. (Cottini v. Enloe

Medical Center (2014) 226 Cal.App.4th 401, 422 [where the

propriety of exclusion of a witness turns on the legal

interpretation of the Evidence Code, an appellate court’s review

is de novo].) Avon also contends that Ms. Gallo was not a

“surprise ‘fact’ witness” because it was clear to both sides that

she would be offered “as a nonexpert, lay witness.”

We understand the trial court’s ruling differently. We see

three reasons for that ruling: Ms. Gallo could not testify as a

PMQ because that testimony would be hearsay; Avon did not

identify Ms. Gallo in pre-trial proceedings as a witness with

personal knowledge of its claims or defenses; and the Chapmans

had objected based on Ms. Gallo’s lack of personal knowledge, a

fact she had admitted in her deposition testimony. We see no

abuse of discretion in the trial court’s ruling. (People v. Cortez

(2016) 63 Cal.4th 101, 124.)

1. The Trial Court’s Ruling

After the trial court explained that it was granting the

Chapmans’ motion to exclude Ms. Gallo because the law did not

permit a corporate representative to testify at trial as a PMQ,

counsel for Avon asked whether Ms. Gallo could testify based on

her own personal knowledge. The court replied: “[B]ased on

things that [plaintiffs’ counsel] just read to me from Ms. Gallo’s

deposition[,] I’m dubious that she does have such first-hand

knowledge.” The court considered, but rejected, an Evidence

Code section 402 hearing to learn the extent of Ms. Gallo’s

personal knowledge. The court found that such a hearing would

not be warranted “unless you show me, Avon, that you identified

Lisa Gallo as having first-hand knowledge of something [in]

discovery calling for such information. [¶] If that is the case and

[counsel for Avon] says it’s not, then I would entertain the

proposition of finding out if Ms. Gallo has any first-hand

knowledge about anything that is relevant. But as represented to

me, Avon has never identified Ms. Gallo as having first-hand

knowledge of facts, defenses, claims, in this case.”

2. PMQ

We have previously held there is no special category of

witness at trial based on an individual’s prior designation as a

PMQ for deposition purposes. (LAOSD Asbestos Cases (2023)

87 Cal.App.5th 939, 947–948.) Non-expert witnesses may only

testify from personal knowledge. (Id. at p. 947.) Avon does not

discuss the prior LAOSD case, even though it was the defendant

in that case and Ms. Gallo was the PMQ whose testimony Avon

sought to use in opposition to summary judgment. The trial court

did not err in finding that Ms. Gallo’s status as a PMQ for

deposition purposes did not permit her to testify as a PMQ at

trial without personal knowledge.

3. Disclosure

Avon contends the trial court’s stated reason for excluding

Ms. Gallo’s testimony was Avon’s failure to identify her as having

firsthand knowledge of the facts to which she would testify. Avon

contends: “To avoid undue surprise and allow for preparation,

Code of Civil Procedure section 2016.090 requires parties to

disclose all persons they ‘may use to support [their] claims or

defenses . . . unless the use would be solely for impeachment.’

(Code Civ. Proc., § 2016.090, subd. (a)(1)(A).) Avon fully complied

with that requirement by including Gallo on its witness list.” As

Avon’s use of ellipses indicates, this is not a complete quote.

Code of Civil Procedure section 2016.090, subdivision (a)(1)(A)

requires the parties to disclose “all persons likely to have

discoverable information, along with the subjects of that

information.” (Italics added.)

Unsurprisingly, given that Avon omitted that section of the

provision from its opening brief, Avon does not provide record

cites showing that it did identify the subjects about which Ms.

Gallo would testify in her individual capacity based on her

personal knowledge and that it provided that information to the

trial court during trial. In order for Avon to show the trial court

erred in finding a failure to disclose required information, Avon

must show that it identified that information to the trial court at

the time of its ruling. It has not done so.

The only record citation provided by Avon is to a

declaration by Ms. Gallo offered in support of Avon’s motion for a

new trial which is not sufficient to show that Avon disclosed

during trial that Ms. Gallo had relevant personal knowledge to

support her proposed testimony.5 Avon has waived this claim.

5 In this declaration, Ms. Gallo lists her positions at Avon

without any explanation of her specific duties in each position,

then asserts: “During my entire career at Avon, from 1994 until

2022, I was personally involved in all aspects of product

development, including idea generation, product design,

identification of raw ingredients, locating suppliers, creating

product formulations, and launching and commercializing Avon

products.” While we do not doubt that Ms. Gallo worked in these

areas, she fails to specify when, if ever, the products she worked

with involved talc. If by this sentence Ms. Gallo is claiming that

she worked on all aspects of all Avon products every year she

worked at Avon, this would be not credible on its face.

Ms. Gallo provides 15 specific pieces of testimony she would

have given if permitted to testify. The vast majority of this

proposed testimony involves events which occurred before she

began working for Avon in 1994. Her knowledge is based on

reading documents, mostly from the 1970’s. This is not personal

knowledge. (LAOSD Asbestos Cases, supra, 87 Cal.App.5th at

(United Grand Corp. v. Malibu Hillbillies, LLC (2019)

36 Cal.App.5th 142, 156 (United Grand) [party’s failure to

support argument with citations to record results in argument

being deemed waived].)

We note that after the Chapmans pointed out in their brief

that Avon was relying on the post-trial declaration by Ms. Gallo,

Avon, for the first time in its reply brief, points to a pleading it

filed during trial on the subject of Ms. Gallo’s personal

knowledge, contending that the pleading shows Ms. Gallo did

have personal knowledge and the Chapmans were aware of it.

Avon has failed to explain why it did not identify this pleading or

make this argument in its opening brief. We do not consider

arguments made for the first time in a reply brief, primarily

because it denies respondent the opportunity to counter the

argument. (United Grand, supra, 36 Cal.App.5th at p. 158.)

Notwithstanding Avon’s belated reference to the cited

pleading, we note that the information on the cited pages consists

of Ms. Gallo’s job title, a brief description of the products she

worked with and her repeated testimony that she did not work

with “body powder” or “body talc products.” There is no

p. 947 [witness who conducts investigation and review is still

limited to matters as to which witness has personal knowledge].)

A few bits of proposed testimony are undated and broad, such as

her claim that “Avon’s talcum powder products were products

formulated to contain cosmetic-grade talc, perfume, and anti-

caking and/or anti-bacterial agents. They were never designed to

be an asbestos-containing product and were never formulated to

contain asbestos as an ingredient or component of its cosmetic

products.” This assertion necessarily refers to events which

predate her employment by decades. Avon’s use of talc alleged to

contain asbestos dated back at least to the 1970’s.

indication that she worked with talc in any way, and nothing that

would alert the Chapmans that Ms. Gallo had relevant personal

knowledge of Avon’s defenses in this action.

Avon also complains in its reply brief that the Chapmans

“wholly ignore Avon’s previous offer of proof, which was included

in Avon’s opposition to Plaintiffs’ motion in limine to exclude

Gallo’s testimony.”6 No doubt the Chapmans ignore it because

Avon did not cite those pages in its opening brief. Avon is the

appellant in this case and it is Avon who must prove error, not

the Chapmans who must prove the trial court correct. Moreover,

Avon failed to identify this document or to argue that it showed

the Chapmans’ awareness that Ms. Gallo would testify based on

personal knowledge. It is at best questionable whether such late

disclosure would suffice, but Avon’s timing deprives the

Chapmans of making that or any other argument in response.

(United Grand, supra, 36 Cal.App.5th at p. 158 [we do not

consider arguments raised for first time in reply brief].)

4. Personal Knowledge

As noted above, the Chapmans objected to Ms. Gallo’s lack

of personal knowledge about talc in Avon products, and the trial

court acknowledged this objection. The court recognized this

objection would require an Evidence Code section 402 hearing to

determine whether Ms. Gallo in fact had the requisite knowledge.

It offered to hold such a hearing if Avon could show that Ms.

Gallo’s personal knowledge was a disputed issue of fact that the

6 This refers to a pre-trial motion by the Chapmans to

exclude all defendants’ PMQ testimony. The trial court denied

the motion, stating it would rule on the testimony on a case-by-

case basis during trial.

trial court had to resolve. Avon has not pointed to any evidence it

provided to the trial court to show that Ms. Gallo had personal

knowledge of any relevant issues. Avon has therefore not shown

that the trial court’s decision to foreclose a section 402 hearing

was unreasonable or, indeed, prejudicial.

“[T]he testimony of a witness concerning a particular

matter is inadmissible unless [she] has personal knowledge of the

matter.” (Evid. Code, § 702, subd. (a).) “Against the objection of

a party, such personal knowledge must be shown before the

witness may testify concerning the matter.” (Ibid.) The

proponent of the proffered witness has the burden of producing

evidence showing the preliminary fact of the witness’s personal

knowledge “concerning the subject matter of [her] testimony.”

(Evid. Code, § 403, subd. (a)(2).) The testimony is “inadmissible

unless the court finds that there is evidence sufficient to sustain

a finding of the existence of the preliminary fact.” (Id., subd. (a).)

As we have discussed above, Avon has not shown on appeal

that Ms. Gallo had personal knowledge of any of Avon’s defenses.

Indeed, her declarations disavow work experience with Avon’s

talc products. At a minimum, this failure means that Avon has

not shown prejudice, even if it was error to exclude Ms. Gallo’s

testimony on non-disclosure grounds.

5. Equities

Avon makes what are, at best, equitable arguments that

the trial court should have permitted Ms. Gallo to testify because

she was not a surprise to the Chapmans. Avon contends “it was

clear to both sides that she would be offered as a nonexpert, lay

witness.” “And, highlighting that [Ms.] Gallo was no surprise

witness, Plaintiffs deposed [Ms.] Gallo because they expected her

to provide lay testimony at trial.” Avon further claims

“[p]laintiffs’ own briefs had relied on Gallo’s previous testimony

regarding her long-standing career at Avon in ‘Research and

Development . . . across multiple categories,’ including direct

experience with product categories Mrs. Chapman used.”

We generally do not consider arguments which are not set

forth in separate headings. (United Grand, supra,

36 Cal.App.5th at p. 153.) We note, however, that much of Avon’s

argument is premised on its position that Ms. Gallo necessarily

would have been a lay witness because she was not designated as

an expert witness. That was not Avon’s position in the trial

court, or in its previous appeal before this court. In this appeal,

Avon continues to argue for the creation of a third type of

witness, to wit, a PMQ who need not meet the requirements of an

ordinary lay witness. The record is clear Avon intended to offer

Ms. Gallo as such a witness in this case, and the Chapmans

opposed testimony by Ms. Gallo in her capacity as a PMQ. Thus,

we cannot agree with Avon that the Chapmans knew it intended

to offer Ms. Gallo as an ordinary “nonexpert, lay witness.” Avon’s

reliance in its briefing on Ms. Gallo’s deposition testimony where

she was questioned in her capacity as a PMQ and gave answers

not based on personal knowledge belies Avon’s claims of error.

6. Prejudice

Because we have found Avon’s claims of error forfeited, and

meritless if not forfeited, we need not and do not consider Avon’s

claim that exclusion of Ms. Gallo’s testimony was prejudicial.

We note briefly that Avon contends the Chapmans’ counsel

committed misconduct when they argued in closing to the jury

that Avon’s failure to present a corporate witness should be

viewed unfavorably. Avon contends here that plaintiffs

improperly asked the jury “to infer that Avon chose not to call

any of its employees because the corporate officials were afraid to

take the stand.” This argument should have been, but was not,

made under a separate heading that clearly indicated the

question to be considered. (United Grand, supra, 36 Cal.App.5th

at p. 153.) Accordingly, it is forfeited.

Nonetheless, Avon has not shown it objected at trial court

on the ground of misconduct. When the Chapmans’ counsel first

mentioned “corporate silence” and Avon’s failure to call corporate

employees, Avon objected that plaintiffs misstated the evidence.

Later in a sidebar, Avon referred to counsel’s “insinuation that

Avon refused and did not call anybody to discuss what happened

in the 70s. And it was referred to as corporate silence. [¶] That

was done full well knowing that the court had precluded our

corporate representative, who did have personal knowledge, from

testifying in this case.” Avon did not contend that the argument

constituted misconduct, again forfeiting the challenge in this

court. (United Grand, supra, 36 Cal.App.5th at p. 156.)

On the objection made, the trial court ruled: “[T]he fact of

the matter is, I made the ruling because she [Ms. Gallo] was not

identified as a witness with first-hand knowledge. [¶] . . . [¶] But

the bottom line is, what counsel argued is fairly attributable to

the evidence. Avon didn’t have anybody here. And you might—

Avon might seek to blame that on me, but I’m not buying it. If

that is a problem, it is Avon’s problem.”

When the Chapmans’ counsel made similar arguments in

rebuttal, Avon again objected that counsel misstated the

evidence. The objection was again overruled.

We agree with the trial court. Avon put itself in a position

where it had no corporate representative to testify from first-

hand knowledge. Even if Ms. Gallo had been allowed to testify,

there was no scenario under which she could have had personal

knowledge of Avon’s talc products before she started working

there in 1994. Avon had no witness to testify about the 1960’s

and 1970’s, one of the two periods during which Mrs. Chapman

regularly used Avon talc products. We note it is far from clear

that Ms. Gallo had any relevant personal knowledge about Avon’s

talc products after 1994—as noted above, she repeatedly and

expressly denied working with such products. Counsel’s

comments were fair comment on the state of the evidence.

We do not accept Avon’s position that a party who

successfully excludes evidence on a particular topic offered by the

opponent in a civil case must then forebear arguing the opponent

failed to produce evidence on that topic. It is the responsibility of

the party offering evidence to ensure that the evidence meets the

requirements for admissibility. It cannot preclude comment on

the lack of evidence on a topic by offering only inadmissible

evidence.

In its reply brief, Avon provides additional record cites for

arguments it made about counsel’s statements. Avon has

provided no reason why it did not cite those pages in its opening

brief. We do not consider them. (See United Grand, supra,

36 Cal.App.5th at p. 158.)

C. The Trial Court Did Not Abuse Its Discretion in Admitting

Dr. Haber’s Testimony.

We note preliminarily Avon has not provided accurate

separate headings and subheadings for its section discussing its

claims of error regarding Dr. Haber’s expert testimony, resulting

in a disorganized, difficult-to-follow legal discussion. (Cal. Rules

of Court, rule 8.204(a)(1)(B) [party’s brief must “[s]tate each point

under a separate heading or subheading . . . and support each

point by argument and, if possible, by citation of authority”].)

The “ ‘[f]ailure to provide proper headings forfeits issues that may

be discussed in the brief but are not clearly identified by a

heading.’ ” (United Grand, supra, 36 Cal.App.5th at p. 153.)

We also note Avon has simply listed very brief summaries

of testimony it claims is improper in the form of a list of bullet

points. There is no detailed analysis of the actual testimony, and

no cogent argument as to why each piece of testimony is

improper. This failure waives the claim. (United Grand, supra,

36 Cal.App.5th at p. 153.) In addition, we note that although

Avon claims it repeatedly objected to the testimony in the bullet

points, it does not provide record citations showing timely and

specific objections to each piece of testimony. While some of the

cited pages in the bullet points include objections, others do not.

It is Avon’s responsibility to show error and a timely and specific

objection when the error involves the admission of evidence.

(Evid. Code, § 353.) The failure to do so forfeits the claim.

We exercise our discretion to consider those issues which

we can discern in this deficient briefing, but any arguments not

discussed in this opinion are deemed forfeited. Essentially, we

see two claims. First, Dr. Haber was not qualified to offer expert

testimony on the strengths and weaknesses of various asbestos

testing. Second, Dr. Haber was not qualified to testify as an

expert about the use of the word “tremolite” in an Avon document

or about Avon’s source codes for talc. Avon has not shown that

the trial court abused its discretion in admitting Dr. Haber’s

testimony on these topics.

“A person is qualified to testify as an expert if he has

special knowledge, skill, experience, training, or education

sufficient to qualify him as an expert on the subject to which his

testimony relates.” (Evid. Code, § 720, subd. (a).) “The

foundation required to establish the expert’s qualifications is a

showing that the expert has the requisite knowledge of, or was

familiar with, or was involved in, a sufficient number of

transactions involving the subject matter of the opinion.

[Citations.] ‘Whether a person qualifies as an expert in a

particular case . . . depends upon the facts of the case and the

witness’s qualifications.’ [Citation.] ‘[T]he determinative issue in

each case is whether the witness has sufficient skill or experience

in the field so his testimony would be likely to assist the jury in

the search for truth.’ ” (Howard Entertainment, Inc. v. Kudrow

(2012) 208 Cal.App.4th 1102, 1115; see Evid. Code, § 801,

subd. (a).)

Even if an individual is qualified as an expert, the expert is

not granted “carte blanche” to offer opinions as to all subjects.

(Jennings v. Palomar Pomerado Health Systems, Inc. (2003)

114 Cal.App.4th 1108, 1117.) Rather, expert opinions must be

limited to the specific subject matter in which the trial court

recognized the witness was an expert. (People v. King (1968)

266 Cal.App.2d 437, 445.)

“A trial court enjoys broad discretion in ruling on

foundational matters on which expert testimony is to be based.”

(Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.)

Accordingly, in reviewing claims that the trial court erred in

permitting expert testimony, we apply an abuse of discretion

standard. (Id. at p. 1522.)

1. Strengths and Weaknesses of Asbestos Testing

Methods

Avon contends “Haber treats patients with asbestos-related

diseases; he is not trained on testing to identify asbestos. . . . He

has no academic training or experience with asbestos testing

which would allow him to give such opinions.”

Dr. Haber’s testimony about his qualifications covers

12 pages of the reporter’s transcript. We note that as part of

qualifying as an expert, Dr. Haber clearly and extensively

testified that his medical experience involved considering the

cause of a patient’s disease, and that included assessing

information on possible environmental causes of the patient’s

illness. Plaintiffs’ counsel asked: “In part of your education and

training and experience as a doctor, is understanding not only

what disease your patients have, but the cause of the disease an

integral part of your work?” Dr. Haber replied, “Yes, very often.”

Counsel: “Has that been the case for asbestos-related diseases?”

Dr. Haber: “Specifically, yes.” Counsel: “In terms of

understanding cause and effect for disease, what are some areas

or discipline in the scientific community that you routinely look

at and rely on?” Dr. Haber: “Well, you would look at—

particularly with, for example, the dust diseases, you’re looking

at information from geologists or from toxicologists or from

environmental health, industrial health, industrial hygiene,

chemists. There’s a variety of different disciplines in science, as

well as, of course, physicians and other scientists.” Dr. Haber

explained that not only was he a pulmonologist, but also “a

member of the American College of Occupational and

Environmental Medicine, that’s a group of physicians that

dedicate their career to diseases—related to occupational and

environmental diseases—and medicine.” Plaintiffs’ counsel then

asked: “[H]ave you, first hand, been involved throughout your

career for decades, and not only the diagnosis of the disease, but

looking at occupational and environmental medicines to

understand the cause and effect between a person’s sickness and

what they’ve been around?” Dr. Haber replied, “Yes.”

After this colloquy, Avon did not object to Dr. Haber’s

qualification as an expert. Accordingly, Avon forfeited its claim

that Dr. Haber did not have sufficient education, training or

experience to evaluate or interpret information, including tests

results, from geologists, toxicologists, chemists, environmental

health experts, industrial health experts, and industrial hygiene

experts concerning asbestos as that information related to

pulmonary diseases. Further, assuming for the sake of argument

that the claim was not forfeited, it would have no merit.

As the Chapmans point out, after qualifying as an expert

Dr. Haber explained how his evaluation of tests results related to

his duties as a medical doctor. The Chapmans’ counsel asked:

“[W]hen you mentioned earlier that you look at data from

industrial hygienists and geologist and scientists and

toxicologists, is that important to you and others in your field to

make intelligent decisions about asbestos disease causation?” Dr.

Haber: “It is.” Counsel asked: “In a situation where you get

testing about asbestos in a product, is knowing the limits of the

test important to you as a doctor?” Dr. Haber: “Absolutely.” He

further testified: “I look at what the material that’s being tested;

whether it’s the ore, the process material, what’s in the bottle,

and I look at the methodology. . . you have to, as a physician or

scientist, understand the limitations of your testing methods. So

you have to look at the method, and you have to have an

understanding of what the limitations of detection are so that you

can have an understanding of what the results mean.”

We note Avon fails to mention that it and other defendants

filed a motion to exclude Dr. Haber’s testimony on asbestos

testing, and in opposition to that motion, Dr. Haber explained in

a declaration that understanding asbestos testing was part of his

professional requirements: “Pulmonologists must also maintain

specialized knowledge of the epidemiology of diseases of the chest

and respiratory system, which is among the subjects upon which

we are tested to obtain board certification. Additionally,

understanding disease causation is essential to our diagnostic

duties. Pulmonologists may face diagnostic situations with a

broad differential diagnosis (the number of potential diseases

consistent with those of the patient). To focus diagnostic

investigation more narrowly, particularly when dealing with

dust-related diseases, a comprehensive occupational and

exposure history helps the pulmonologist. With asbestos-related

diseases, the ability to use information from an occupational and

exposure history requires the pulmonologist to understand

industrial hygiene, toxicology, chemistry, geology, mineralogy,

and epidemiology. Moreover, physicians frequently read the

reports and conclusions of other physicians or scientists and rely

upon others’ work in clinical practice.”

Avon does not acknowledge this testimony, much less

explain why it believes Dr. Haber’s training and experience

described therein are insufficient to qualify him to interpret

asbestos test results, including evaluating the strengths and

weaknesses of the tests used. To the extent Avon suggests that

formal academic coursework is required to become an expert on a

topic, Avon is mistaken. The Evidence Code imposes no such

requirement.

2. Avon’s Corporate Documents

Avon’s second broad contention is that Dr. Haber

improperly offered testimony as an expert interpreting Avon’s

corporate documents. Avon identifies and discusses two specific

instances of such testimony: Dr. Haber’s testimony about

tremolite and his testimony about product codes.7 Avon has not

shown the trial court abused its discretion in admitting this

testimony.

The documents at issue were in evidence, and Dr. Haber

relied on them in forming his opinion on causation. As we have

concluded, Dr. Haber was qualified to understand and analyze

information about asbestos, including its presence in the

environment, both in mines and in manufacturing.

Avon’s real complaint seems to be that Dr. Haber treated

the word “tremolite” in the document as referring to “tremolite

asbestos rather than the more common form of tremolite.” We

find the logical inference from the document to be that “tremolite”

referred to tremolite asbestos. The document discusses FDA

testing for tremolite, notes that “[l]ast fall we recognized the

potential Tremolite problem,” directs that talc from mines

containing “tremolite” no longer be used in products and instructs

that “No Tremolite” be added to supplier specifications. Avon

fails to explain why the FDA and Avon itself would be so

concerned with non-asbestos tremolite. Further, Avon was free to

cross-examine Haber on this point, or question its own witnesses

7 Avon did object to the testimony about the source codes on

the ground that it was outside the scope of Dr. Haber’s expertise,

but this objection was overruled. We find this initial objection

sufficient to cover the remainder of the cited testimony.

about the common form of tremolite, and whether it would

warrant the concerns and actions discussed in the Avon

document.

As for the product source codes, the Avon documents with

the source codes were in evidence. Dr. Haber relied on those

documents in forming his opinion on causation. We see nothing

improper in his testimony about the codes. In addition to

contending that the testimony was outside Dr. Haber’s expertise,

Avon appears to contend that his testimony about these codes did

not assist the jury and usurped the jury’s role as fact-finder.

Avon did not object to that testimony on these specific

grounds. Assuming for the sake of argument that the claim is

not forfeited, the testimony was of the type which could assist a

jury. As we understand Dr. Haber’s testimony, he had to look at

formulas and trace the codes, not a simple task. Thus, his

explanation to the jury of how he worked through the documents

certainly could have assisted in understanding and evaluating

the basis of his opinion. Further, the jury was instructed, in

pertinent part, with CACI No. 219: “You do not have to accept an

expert’s opinion. As with any other witness, it is up to you to

decide whether you believe the expert’s testimony and choose to

use it as a basis for your decision. You may believe all, part, or

none of an expert’s testimony. In deciding whether to believe an

expert’s testimony, you should consider: [¶] a. The expert’s

training and experience; [¶] b. The facts the expert relied on; and

[¶] c. The reasons for the expert’s opinion.” (Italics added.)

The jury’s evaluation of an expert’s testimony includes an

evaluation of the facts upon which the expert relies. The trial

court did not err.

D. Avon Has Waived Its Claim of Insufficiency of the Evidence.

Avon contends the Chapmans failed to present reliable

evidence which would allow a jury to find that Avon products

caused Mrs. Chapman’s mesothelioma. We reject this contention.

“An appellate court ‘ “must presume that the record

contains evidence to support every finding of fact . . . .” ’

[Citations] It is the appellant’s burden, not the court’s, to identify

and establish deficiencies in the evidence. [Citation.] This

burden is a ‘daunting’ one.” (Huong Que, Inc. v. Luu (2007)

150 Cal.App.4th 400, 409 (Huong Que).) The appellant bears this

burden on appeal, even if he did not bear the burden of proof in

the trial court proceedings. (See Claudio v. Regents of University

of California (2005) 134 Cal.App.4th 224, 230 [summary

judgment motion].)

At a minimum, a party challenging the sufficiency of the

evidence to support a particular finding “ ‘must summarize the

evidence on that point, favorable and unfavorable, and show how

and why it is insufficient.’ ” (Huong Que, supra, 150 Cal.App.4th

at p. 409.) The appellant “ ‘cannot shift this burden onto

respondent, nor is a reviewing court required to undertake an

independent examination of the record when appellant has

shirked his responsibility in this respect.’ ” (Ibid.)

Under the substantial evidence standard, our review

“begins and ends with the determination as to whether, on the

entire record, there is substantial evidence, contradicted or

uncontradicted, [that] will support the [jury’s] determination.”

(Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874, italics

omitted.) Evidence that supports the judgment must be accepted,

conflicting evidence must be rejected, and all reasonable

inferences must be drawn in favor of the verdict. (Toste v.

CalPortland Construction (2016) 245 Cal.App.4th 362, 366;

Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630–631.)

“We do not review the evidence to see if there is substantial

evidence to support the losing party’s version of events, but only

to see if substantial evidence exists to support the verdict in favor

of the prevailing party.” (Pope v. Babick (2014) 229 Cal.App.4th

1238, 1245 (Pope).) “Even if the jury’s findings are against the

weight of the evidence, they will be upheld if supported by

evidence that is of ponderable legal significance and reasonable

in nature.” (Toste, at p. 366.)

Given this standard of review, the Fourth District Court of

Appeal has described an appellant’s burden in even stronger

terms than we have. (Pope, supra, 229 Cal.App.4th at p. 1246

[“Appellants’ ‘fundamental obligation to this court, and a

prerequisite to our consideration of their challenge’ [citation], is

to ‘set forth the version of events most favorable to

[respondent]’ ”].)

Avon has not come close to meeting even the minimal

requirement of setting forth all the material evidence that is

unfavorable to its position, let alone setting forth the version

most favorable to plaintiffs. The section of Avon’s brief entitled

“Statement of Facts” contains a few paragraphs setting forth

evidence that is favorable to Avon, followed by extended attacks

on the testimony of Drs. Longo and Haber and on the trial court’s

decision to exclude Ms. Gallo’s testimony. Avon does include a

brief critique of portions of the Chapmans’ statistical expert Dr.

Madigan but does not come close to setting forth all of his

relevant testimony. Similarly, Avon cherry picks testimony from

the Chapmans’ expert Dr. Brody which it views as favorable but

does not come close to setting forth all of his relevant testimony.

Avon barely mentions its own memos from the early 1970s,

except to argue that Dr. Haber improperly testified about them.

The Chapmans’ appellate brief clearly shows the extent of

the evidence Avon failed to cite and discuss, as does the

Statement of Facts in this opinion. We do not consider Avon’s

attempt to address this evidence in its reply brief, because there

was no reason for Avon to have failed to address the evidence in

its opening brief. It is Avon’s burden to show error, and

particularly in the context of an insufficiency of the evidence

claim, appellant cannot shift that burden onto the Chapmans, or

onto this court. Accordingly, Avon has waived this claim.

(Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881

[appellant is “ ‘required to set forth in their brief all the material

evidence on the point, and not merely their own evidence. Unless

this is done the error is deemed to be waived.’ ”]; Brockey v. Moore

(2003) 107 Cal.App.4th 86, 96–97 [finding waiver for failure to set

out all material facts and noting that appellant improperly

“skewed” facts in his own favor].)

DISPOSITION

The judgment is affirmed. Avon to pay costs on appeal.

STRATTON, P. J.

We concur:

WILEY, J. VIRAMONTES, J.

Filed 3/4/26

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

LAOSD ASBESTOS CASES B327749

___________________________________

GARY CHAPMAN, Individually and (Los Angeles County

as Personal Representative, etc., Super. Ct. No. 22STCV05968)

Case No. JCCP 4674

Plaintiff and Respondent,

AVON PRODUCTS, INC.,

Defendant and Appellant.

__________________________________

GARY CHAPMAN, Individually and B330345

as Personal Representative, etc.,

(Los Angeles County

Plaintiff and Appellant, Super. Ct. No. 22STCV05968)

v. ORDER CERTIFYING

OPINION FOR PUBLICATION

AVON PRODUCTS, INC.,

[NO CHANGE IN JUDGMENT]

Defendant and Respondent.

THE COURT:

The opinion in the above-entitled matter filed on February 11, 2026,

was not certified for publication in the Official Reports. For good cause, it

now appears that the opinion should be published in the Official Reports and

it is so ordered.

There is no change in the judgment.

________________________________________________________________________

STRATTON, P. J. WILEY, J. VIRAMONTES, J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.