The record
In August 1972 the CTFA president reported that the FDA was about to publish a 1-percent x-ray-diffraction limit based on Prof. Seymour Lewin's report that of 102 shelf products tested only 59 were free of asbestos, the remaining 43 evaluating at 1 to 30 percent contamination; industry threatened litigation, the FDA proposal was not released, and the FDA ordered Lewin to re-test.
Claim scope
The pivotal August 1972 event, with numbers: 102 products, 59 clean, 43 contaminated at 1-30 percent. The opinion further quotes the CTFA president saying that if released to the public “industry would go to court against the [FDA]”, and records FDA associate director Dr. Robert Schaffner stating the proposal “would not be released” and ordering re-analysis by x-ray scanning, then the step method, then electron microscopy, with the FDA holding the information in confidence.
What this source does not establish
These figures are as reported in an internal Whittaker memorandum of the meeting, i.e. one participant's account of Lewin's report, not Lewin's report itself. The opinion also records that at the same meeting another expert failed to confirm Lewin's result and that “Prof. Lewin admitted before his group that the percentage reported was not on the basis of 1 to 2% accuracy”. That concession must be reported alongside the numbers.
Limitations
McNeal is the most valuable opinion in this set for timeline purposes because the court sets out the internal documents in an explicitly dated month-by-month chronology (headings 'a. August 1971' through 's. May 1977'). CRITICAL COUNTERWEIGHT: the court REVERSED the punitive damages award, holding the same evidence did not establish malice, oppression or fraud. Any use of McNeal must carry that disposition. The documents are verified as recounted; the culpability inference was rejected by this court. Numbers are second-hand within the document; and Lewin's own accuracy concession is in the same passage. PMID 31095409 gives a differently-partitioned account of the same Lewin work (102 samples: 59 with no detectable asbestiform minerals, 20 with small but definite tremolite percentages, 7 with substantial percentages) — the two accounts are compatible in outline but NOT numerically identical below the '59 clean' figure. Do not merge them.
Source
Case Citation — McNeal v. Whittaker, Clark & Daniels, No. B313472 (Cal. Ct. App. 2d Dist. Div. 8, July 5, 2022) (published; reporter cite UNVERIFIED)