Foreshadowing asbestos legal challenges

In recent years, as the pool of plaintiffs who worked directly with raw asbestos fiber has dwindled, plaintiffs’ attorneys have had to search for ever more remote sources of asbestos exposure.

One material that has drawn the focus of the plaintiffs’ bar, and which is of particular concern to the aggregate industry, is talc.

For years, refined talc has been widely used as an ingredient in household products such as talcum powder and cosmetics, while industrial grade talc is commonly found in plastics, paints, paper and ceramics.

Like crushed stone, sand and gravel, talc is a mined product and, until recently, was not associated with causing cancer. In the past five to 10 years, however, the number of plaintiffs filing lawsuits claiming to have developed cancer as a result of their exposure to talc has risen dramatically, and the ensuing litigation has seen mixed results.

Liability theories

Plaintiffs claiming to have developed cancer from talc exposure typically advance one of two claims: that the talc mined by suppliers and used by manufacturers in their products was contaminated with cancer-causing asbestos fibers; or that talc itself is carcinogenic – specifically, that it can lead to the development of ovarian cancer.

Both theories present significant evidentiary hurdles for plaintiffs, but aggregate producers would do well to consider whether their own operations could be susceptible to similar theories of liability.

Because the link between substantial and prolonged exposure to asbestos and the development of certain cancers is well-established, the inquiry in asbestos-in-talc cases frequently centers less around medical causation than around the amount and frequency of the plaintiffs’ asbestos exposure.

These plaintiffs face the considerable challenge of proving the composition of the talc at the time it was manufactured, and that asbestos was present in the talc product at the time it was put to market. They must also show that the particular plaintiff at issue used the contaminated talc product in such proximity and with such frequency that they would have been exposed to amounts of asbestos sufficient to cause cancer.

These facts are not easily proven, and defendants have had success in the courtroom trying these cases before juries.

Cases worth noting

Our firm recently won a defense verdict on behalf of a cosmetics manufacturer in one such contaminated talc case.

In September 2018, an Oregon jury rejected the plaintiff’s claims that our client’s cosmetics contained asbestos and that the plaintiff’s use of those products led to her cancer.

Similarly, in March 2019 in Rimondi v. BASF Catalysts, a New Jersey jury cleared Johnson & Johnson (J&J) of wrongdoing in a lawsuit claiming that asbestos in J&J’s baby powder caused the plaintiff’s mesothelioma. And in the Alfaro and Colpitts cases in 2016, two separate juries in California each found that plaintiffs had failed to prove that they had been exposed to any asbestos through their use of the defendants’ talcum powder and cosmetics products.

Plaintiffs, however, have won their share of verdicts. In Leavitt in March 2019, a California jury unanimously concluded that the talc used in Johnson & Johnson’s baby powder contained asbestos, and that the plaintiff’s use of that product caused her to develop mesothelioma. The jury awarded nearly $29.5 million in compensatory damages, holding J&J entities liable for 98 percent of plaintiffs’ damages, and J&J’s talc supplier, mining company Cyprus Mines Corp., liable for 2 percent.

And, in an April 2018 case in New Jersey, the jury returned a verdict for the plaintiff, Stephen Lanzo, awarding $117 million in compensatory and punitive damages against J&J and talc supplier Imerys Talc America.

Mixed verdicts

Claims that talc can cause ovarian cancer do not have the benefit of the decades of medical and epidemiological research that has been conducted regarding asbestos. There is currently no scientific consensus on the issue of whether talc itself can cause cancer. For this reason, medical causation is often the central issue in cases involving claims of talc-related ovarian cancer.

Such cases are often reduced to a “battle of experts,” with plaintiffs and defendants each presenting to the jury the opinions of their medical expert witnesses, and the jury deciding whom it finds more credible.

In March 2017, a Missouri jury in the Daniels case rejected the plaintiff’s claims that talc caused her ovarian cancer and found in favor of the defendants. Yet just last year in Ingham, a case brought by 22 women claiming that the talc used in J&J’s baby powder caused them to develop ovarian cancer, a Missouri jury found for the plaintiffs and awarded $4.69 billion in compensatory and punitive damages against J&J.

Given the unpredictability of outcomes and the range of verdicts returned, defendants have adopted a variety of strategies, including aggressive litigation and trial to verdict, negotiated settlement, and even strategic pursuit of bankruptcy. In perhaps the best illustration of the varying approaches defendants have taken in defending these cases, in March 2019, Johnson & Johnson announced the settlement of three cases in which plaintiffs claimed that asbestos in J&J’s baby powder caused them to develop mesothelioma.

The announcement of the settlements marked a shift from J&J’s historical approach of aggressive defense of talc cases. It also happened to come on the same day that J&J won a decisive victory in the Rimondi case, a case which J&J had tried to verdict, and in which it took a New Jersey jury less than an hour to find in favor of the defense.

Meanwhile, in February 2019, J&J’s primary talc supplier, Imerys Talc America, filed for Chapter 11 bankruptcy in response to the explosion in talc cases filed nationwide, seeking to establish a trust to fund its talc-related liabilities while also placing an upper limit on how high those liabilities can go.

It is also worth noting that nearly all of the verdicts plaintiffs have won in talc cases are pending review on appeal, and this is very much an evolving area of the law.

Aggregate producer considerations

Crushed stone, sand, and gravel producers cannot afford to overlook the significant risk posed by the sort of toxic tort claims being leveled against producers of talc products.

The good news is that these cases can be successfully defended. The evidentiary hurdles faced by plaintiffs are significant, and the range of strategic options available to defendants are ample.

Aggregate producers should consider taking a proactive approach to this potential threat and consult with qualified counsel to evaluate their potential liability and to develop strategies for their defense.

---

Christopher S. Marks is a partner in Tanenbaum Keale’s Seattle office. Joseph D. Fanning is an associate in the firm’s office in Newark, New Jersey.