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March 4, 2026 Get Citation Alerts Download PDF Add Note

LAOSD Asbestos Cases

California Court of Appeal

• Citations: None known

• Docket Number: B327749

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (562)

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Combined 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,

v.

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,

v.

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.

2
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

3
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.

4
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.”

5
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.

6
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.

7
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.”

8
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.

9
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

10
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
55 Cal.4th 747, 772, fn. 6 (Sargon).)” Avon contends the trial
court was also required to ensure that the expert opinion was

11
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.)

12
“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

13
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.

14
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.”

15
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

16
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.

17
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

18
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

19
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

20
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

21
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

22
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.)

23
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

24
(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.

25
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.

26
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

27
“[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

28
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,

29
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

30
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

31
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

32
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

33
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.”

34
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.

35
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.

36
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.

37
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.

38
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.

39
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.

40
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,

v.

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.

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