Growing Number of Cases Involving Cosmetic Talc and Mesothelioma Nationwide

In the past five years, the number of lawsuits filed against manufacturers of cosmetic talcum powder has skyrocketed. The lawsuits generally allege that the application of the alleged defective product causes ovarian cancer in women, many times decades after exposure. As the cases involving ovarian cancer balloon with varying degrees of success, plaintiffs have recently begun filing a growing number of lawsuits alleging that exposure to asbestos-containing cosmetic talcum powder causes mesothelioma. The science behind these cases is evolving; courts and juries are not convinced of the methodology behind the testing or the efficacy of the claims. Courts have held that plaintiff’s expert reports related to potential asbestos content in certain brands of talcum powder provide enough evidence to defeat defendant’s motion for summary judgment. In Mary Lyons v. Colgate-Palmolive ...
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Illinois Appellate Court Affirms Summary Judgment on Conspiracy Claims Appellate Court of Illinois, June 19, 2018

ILLINOIS — The plaintiff, James Johnson, was diagnosed with asbestosis after working with insulation products in the construction industry, beginning in 1965. He filed suit against numerous defendants, and included a claim that Pneumo Abex LLC, Owens-Illinois, Inc., Metropolitan Life Insurance Company and Honeywell International, Inc. were involved in a civil conspiracy to conceal the dangers of asbestos. The trial court thoroughly reviewed the evidence obtained during discovery and presented at hearings, including the Saranac Study, and determined there was not clear and convincing evidence to demonstrate the existence of an agreement between Pneumo Abex, Owens-Illinois and the other alleged conspirators. Accordingly, the trial court granted those two parties’ summary judgment motions. On appeal, the Appellate Court of Illinois reviewed the evidence and affirmed the finding that the plaintiff failed ...
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Remand Denied Upon Plaintiff’s Failure to Properly Disclaim Federal Officer Removal United States District Court, S.D. Illinois. June 19, 2018

ILLINOIS – The plaintiff Janice Reinbold filed suit against several defendants alleging her decedent, Gerald Reinbold, developed lung cancer from occupational exposure to asbestos while working as a shipfitter at the Puget Sound Naval Shipyard, amongst other sources. Defendant Crane Company (Crane) removed the case to federal court asserting Federal Officer Removal. The plaintiff moved to remand. The court reminded the parties of the standard for Federal Officer Removal, and stated that the statute allows removal when “action is brought against the United States or an agency thereof of any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under the color of office.” First, the court analyzed the plaintiff’s disclaimer. Here, ...
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Denial of Worker’s Compensation Benefits Affirmed Upon Plaintiff Failure to Meet Statutory Requirements Court of Appeals of North Carolina, June 19, 2018

NORTH CAROLINA – The plaintiff Edmund Preslar filed for Workers’ Compensation Benefits claiming that he was entitled to compensation under the statute for his development of asbestosis attributed to his work at the Johns Manville Marchville facility from 1967-1968. The commission denied his claim stating that he had not worked long enough to be eligible for benefits under the statute. The plaintiff appealed and his representative was substituted after he passed away from a non-asbestos cause. On appeal, the court noted the standard for commission appeals required that “1) whether the findings of fact are supported by competent evidence, and 2) whether the conclusions of law are justified by these findings. The plaintiff relied on his co-worker who testified that the plaintiff worked approximately 6 months at the facility. However, the commission ...
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Federal Officer Removal Statute Found Inapplicable in Negligence Claim Against Shipyard Defendant; Remand Granted United States District Court E.D. Louisiana, June 12, 2018

LOUISIANA – The plaintiff, Gregory Brown brought this action against several defendants including Avondale Shipyard (Avondale) claiming that he developed lung cancer from exposure to asbestos while working for Avondale at its shipyard on and off from 1967-1971. Specifically, Mr. Brown worked as a cleanup man, tacker, and insulator helper. He also claimed exposure to asbestos from his employment for other employers from 1965- 1978. The plaintiff was deposed and gave testimony regarding his work on ships while at Avondale but did not state that the ships were owned by the United States Navy or United States Coast Guard. Of note, the plaintiff sued Avondale on a negligence theory but did not assert a claim for strict liability. Avondale removed the matter to the United States District Court pursuant to Federal ...
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Summary Judgment Affirmed in Railroad Case Upon Plaintiff’s Failure to Preserve Issue for Appeal Superior Court of Pennsylvania, June 12, 2018

PENNSYLVANIA – The plaintiff, Michael Eorio filed suit against multiple defendants including CBS and General Electric (GE) alleging he contracted lung cancer while working as a railroad employee from 1972-2010. The plaintiff and one co-worker alleged Mr. Eorio had been exposed to asbestos containing products for which CBS and GE were liable. The plaintiff passed away prior to trial and a substitution of the plaintiff was entered. CBS and GE moved for summary judgment. The trial court granted summary judgment as to both defendants and the plaintiff appealed. On appeal, the plaintiff took exception that the trial court found him not qualified to testify about his exposure to asbestos products. However, the court quickly noted that the plaintiff had not raised that issue in his appeal and therefore waived that issued. Secondly, ...
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Delaware Jury Issues $40.6 Million Verdict Superior Court for the State of Delaware, June 7, 2018

DELAWARE – On Friday, June 8th, the jury returned a $40.6 million verdict in Larry W. Knecht, et Ux. v. Borg-Warner Corporation, et Al, a Delaware asbestos case. The case was tried under New Mexico law. The jury found Ford strictly liable due to a failure to warn, and apportioned 30 percent fault to the decedent, Larry Knecht, and 20 percent to Ford. The remainder of the liability was apportioned as follows: General Motors and Chrysler (20 percent each) and Johns-Manville (10 percent). Furthermore, the jury awarded $1 million in punitive damages against Ford.
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Mill Defendant’s Summary Judgment Motions Granted in Community Exposure/Take-Home Case United States District Court, W.D. Wisconsin, June 8, 2018

WISCONSIN –Weyerhauser operated a manufacturing facility in Marshfield, Wisconsin from 1960 to 2000. Among other wood products manufactured at the mill, Weyerhauser produced asbestos-core doors in Marshfield from 1971 to 1978. The plaintiffs’ decedents Elvira Kilty and Herbert Spatz each worked at the Marshfield Weyerhauser mill. Due to the Wisconsin Workers’ Compensation bar, they alleged that their mesothelioma was caused by community exposures and/or household exposures emanating from the clothing of their children and father, respectively, all of whom also worked for Weyerhauser. Weyerhauser moved for summary judgment, which the court granted. In its analysis, the court noted that the plaintiffs’ experts conceded that the plaintiffs’ occupational exposures were substantially more than any non-occupational exposures, and would have been sufficient to have independently caused decedents’ mesotheliomas. The plaintiffs’ evidence did ...
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Talc Defendant Strikes Plaintiff’s Expert and Avoids Spoliation Sanctions United States District Court, M.D. North Carolina, June 8, 2018

NORTH CAROLINA — The plaintiff Ann Finch’s decedent Franklin Finch worked at a Firestone tire factory in Wilson, North Carolina from 1975-1995 and alleged that he was exposed to asbestos during his time there, causing his mesothelioma. Among other allegations of exposure, the plaintiff alleged that the decedent was exposed to talc-contaminated asbestos at Firestone, allegedly supplied by defendant Pfizer and others. In support of this allegation, the plaintiff offered an expert report from Sean Fitzgerald, who tested an identification badge worn by Decedent, and determined that it showed “asbestiform constituents, including fibrous talc.” However, the plaintiff disclosed the existence of the report and the badge 15 months after initial disclosures in the case, and just a few days before the close of discovery. Pfizer moved to strike the report ...
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Talcum Powder Defendant’s Motion to Dismiss Granted on Civil Conspiracy; Denied as to Punitive Damages U.S. District Court for the Middle District of North Carolina, June 7, 2018

NORTH CAROLINA — American International Industries (AII) was sued by plaintiff Lloyd Bell. The plaintiff claimed his decedent had developed mesothelioma from her use of talcum powder during her work as a hairdresser and her education during beauty school. AII moved to dismiss the plaintiff’s claims for willful and wanton conduct, malice, conspiracy, and punitive damages. The court began its review with the standard for a motion to dismiss. According to the court, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” However, speculation and conclusory allegations do not meet the level required to survive a motion to dismiss. AII took the position that the plaintiff had failed to state a claim for both punitive damages and civil conspiracy. ...
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Dismissal of RICO Suit Against Plaintiffs’ Firms Affirmed Upon a Finding of Lack of Jurisdiction U.S. Court of Appeals, Seventh Circuit, June 4, 2018

ILLINOIS — Plaintiff John Crane Inc. (JCI) brought Racketeer Influenced and Corrupt Organizations Act (RICO) suits against two plaintiffs’ firms in Illinois alleging the firms conspired to hide evidence related to exposure to other asbestos products throughout discovery in numerous cases. The defendants, the Shein Law Center and Simon Greenstone Pantier Bartlett (Simon), moved to dismiss the complaint for lack of personal jurisdiction. Shein also moved to dismiss for lack of subject matter jurisdiction. The District Court dismissed for after determining it lacked personal jurisdiction. On appeal, the court noted the standard for Illinois’ long arm statute which mirrored the federal standard. The defendant must have “sufficient contacts with the with the forum state” in order for jurisdiction to exist according to the court. The parties were in agreement that ...
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