Some thoughts
Most readers are familiar, at least to some extent, with the jury’s verdict earlier this year in Lanzo v. Johnson & Johnson. In that case, a New Jersey state court jury awarded $117 million in compensatory and punitive damages against J&J and Imerys after concluding that asbestos-contaminated talc, supplied by Imerys and used to make Johnson’s Baby Powder, caused Mr. Lanzo’s mesothelioma.
The Lanzo verdict is one of several plaintiff verdicts over the past few years across the country in cases involving consumer use of a cosmetic talc powder product allegedly contaminated with asbestos. There have also been several defense verdicts during that time period as well.
The mix of plaintiff and defense verdicts indicates that this litigation is not yet a “mature tort” in the way that more “traditional” asbestos cases and claims might be viewed from a liability and/or valuation perspective. This is not to say, of course, that more “traditional” asbestos cases cannot be defended successfully. While many plaintiff’s counsel will be tempted to champion Lanzo as the harbinger of a growing series of large verdicts and increasing settlements in such cases, defendants, as well as their insurers, should strive to isolate Lanzo (assuming the verdict survives the appellate process) as an aberrant high-water mark for plaintiffs that is not mirrored by repeat results.
At the outset, it is important to remember that in many traditional asbestos claims involving products that were intentionally designed and manufactured to contain asbestos, the state-of-the-art defense may not be available, and the defendant’s knowledge — or lack thereof — may be inadmissible. Moreover, because a traditional asbestos product was designed to contain asbestos, the uniformity of asbestos content means that exposure to the product means (assuming friability) exposure to the asbestos in the product. Product uniformity also allows a plaintiff’s expert to opine more readily about dose – i.e., that the amount of asbestos to which a particular plaintiff was exposed can reliably be said to have been a substantial or significant contributing cause of his or her asbestos-related disease.
In contrast, cosmetic talc powder products were not designed or formulated to contain asbestos; plaintiffs’ claim is that the talc used to make the products was contaminated with asbestos. Thus, an individual plaintiff must prove that there actually was asbestos in the particular product containers that she or he actually used or was exposed to and that the amount of asbestos to which he or she was exposed was sufficient to raise the risk of causing his or her asbestos-related disease. Absent a rare situation, it is unlikely that a plaintiff alleging that she or he developed an asbestos-related disease from use of or exposure to asbestos contaminated talc powder will still have an actual container or containers years later. Accordingly, most plaintiffs will not be able to present direct evidence of exposure to an asbestos-contaminated talc powder product because they will be unable to provide any actual containers they used or were exposed to for expert testing and analysis.
For the full article, refer to page 8 in the Winter 2018-2019 issue. https://www.airroc.org/assets/docs/matters/AIRROC_Matters_Winter_2018-2019_vol_14%20_No_3.pdf
