Is Talc the New Asbestos Litigation?

Post Authored by Yara Mroueh

Asbestos has ruled the mass tort litigation circuit for the past several decades. However, with the number of new asbestos cases steadily declining, according to projections, talc may be taking its place. Talc is a naturally occurring mineral that is used by the cosmetic industry and in common products, such as baby powder. This new litigation claims that cosmetic manufacturers failed to warn consumers about the association between repeated talc use and heightened cancer risks, including ovarian cancer in women. There are further claims that some talc contains small amounts of asbestos. Notably, asbestos is a naturally occurring material often found near talc deposits mined on the earth’s surface. This has resulted in hundreds of lawsuits alleging that repeated use of talc products caused consumers to develop mesothelioma. Since 2017, retailers have made several voluntary recalls of cosmetic products, due to these lawsuits.

Johnson & Johnson (“J&J”) is currently facing more than 15,000 lawsuits stemming from consumers claiming its talc products have caused cancer, including ovarian cancer and malignant mesothelioma. Dozens of massive verdicts have been reached against J&J, including a $325 million verdict in a talc-mesothelioma case in the state of New York, and a $37.2 million compensatory damages verdict in the state of New Jersey.

In October 2018, J&J persuaded a Missouri appeals court to throw out a $110 million jury award ($5 million in actual damages, and $105 million in punitive damages) to a woman who claimed she developed ovarian cancer from the company’s baby powder. The court held that the plaintiff should not have been allowed to bring her ovarian-cancer lawsuit to trial in St. Louis because she was a Virginia resident at the time of the alleged injury. The plaintiff is currently planning to ask the Missouri Supreme Court to review the intermediate court’s decision. This is significant because the high court has not yet decided whether an out-of-state plaintiff can bring her claims in Missouri. Should the Missouri Supreme Court side with the plaintiff in this case, its decision will have a large effect on future talc litigation in the state of Missouri, which already plays a large role in asbestos litigation. J&J’s strategy of emphasizing appeals is working–at least on the intermediate court level. As of 2019, J&J has successfully challenged cosmetic talc verdicts in appeals courts and has been found not liable in at least four mesothelioma trials. Another five mesothelioma cases have resulted in hung juries and mistrials. The talc verdicts involving ovarian cancer claims have also been overturned on appeal over legal technicalities.

Asbestos litigation and similar multi-million-dollar verdicts caused dozens of companies that manufactured asbestos-containing products to declare bankruptcy. The effects of these verdicts are still affecting companies today. Further, the trusts created following bankruptcy are quickly depleting. However, J&J officials recently stated that there is no need to set aside legal reserves to deal with the more than 15,000 consumer lawsuits pending against them. This shows that J&J and other companies getting hit with talc-related lawsuits are confident they can defend their products in front of juries across the country. However, not all are safe; for example, the US unit of Paris-based Imerys SA sought bankruptcy protection in February 2018 in order to deal with the thousands of talc suits targeting it.

About the Author:

yaraYara Mroueh is an associate attorney at Gordon & Rees, where she focuses her practice primarily in the areas of products and premises liability, insurance defense, toxic tort, and commercial litigation. Yara is active in all phases of litigation, from investigating the facts, settlement negotiations, and pre-trial preparation. As part of her practice, Yara enjoys taking depositions and drafting complex motions in state and federal matters. Yara’s bilingual skills provide her a unique opportunity to connect with clients and achieve the best possible outcome.

 

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