Recently, while on a family vacation, I drove past the Yellowstone Imerys talc-mining operations in Montana near Yellowstone National Park. The operation is set against a beautiful backdrop in one of the most naturally stunning areas of the country. The tranquil setting stands in stark contrast to the company’s current turmoil as a defendant in one of the highest profile mass torts since asbestos litigation came on the scene over 30 years ago.
Imerys, a talc miner and supplier, along with Johnson and Johnson (“J&J”) has suffered a series of verdicts in cancer lawsuits that have been nothing short of shocking. J&J’s talc-based “baby powder” has been a cornerstone of the New Jersey-headquartered company for over 120 years, as well as one of the world’s most trusted and ubiquitous products. It is now the target of every mass-tort plaintiff attorney in the United States.
The first asbestos related talc verdict was in 2006. The first ovarian cancer talc trial was in 2013. By 2017, there were multiple verdicts in ovarian cancer related talc lawsuits totaling well over $500 million dollars. Unfortunately, 2018 shows no sign of slowing down. J&J carried the brunt of these verdicts with Imerys picking up a significant portion. Most recently, in Lanzo v. Johnson & Johnson, et al., a New Jersey jury handed J&J and Imerys another blow—$117 million in a mesothelioma case where the plaintiff alleged exposure to asbestos from talcum powder product use over his lifetime. The jury found J&J liable for 70% of the judgment with Imerys liable for the remaining 30%. The panel awarded $80 million of the verdict as punitive damages. The verdict bridges the excessively high awards from ovarian cancer cases to the well-established arena of asbestos litigation. Plaintiff attorneys have tapped into a potential goldmine by connecting mesothelioma claims to talc litigation.
Ovarian cancer talc cases gained notoriety with a series of enormous verdicts in St. Louis, Missouri. Claimants were able to take advantage of a very plaintiff friendly jury pool and a judge who ignored basic rules of personal jurisdiction. The verdicts were alarmingly high in these cases notwithstanding the lack of causation evidence. The ovarian cancer talc link is premised on biased studies with no epidemiological support. Various government agencies, including the American Cancer Society, have issued statements concluding that an increased risk of ovarian cancer from talc does not exist. The Lanzo verdict changes everything.
Why should a plaintiff attorney invest significant resources in chasing down ovarian cancer claims with an inevitable and challenging appellate path when he or she can claim that asbestos contaminated talc causes mesothelioma, ovarian cancer or a number of other asbestos related diseases? Asbestos litigation is the largest and most mature litigation in the U.S. The scientific and epidemiological studies are endless, linking asbestos exposure to various forms of cancer, including mesothelioma. Undoubtedly, there will be a marked increase of talc-based asbestos claims in the coming years.
These claims are not going away. All of this will require defense counsel to take a more aggressive stance defending these claims at trial.
Particular focus is necessary on the lack of scientific support for talc-based cancer claims. Multiple studies of talc miners and millers from the mid-1970’s to the early 2000’s have shown no increased risk of mesothelioma or lung cancer. Plaintiffs’ end run has been to lead the jury away from the glaring holes in causation and to focus on what are unfortunately “bad documents” for J&J. Although the corporate documents do not paint the company in a positive light, there is a reason J&J continues to take a firm defense position — talc does not cause cancer. The product is safe. A greater effort is necessary to convince jurors that bad documents do not cause disease. The epidemiology does not lie. Indeed, there was no definitive proof in the Lanzo trial that the talc at issue was asbestos-contaminated. How can decades of studies of miners of raw talc yield no recognizable increased risks of cancer and yet end users of talc-based products contract disease?
For the full article, refer to page 22 in the Fall 2018 issue. https://www.airroc.org/assets/docs/matters/AIRROC_Matters_Fall_2018_Vol_14%20No_2.pdf
