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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Community Exposure Claims by Former Employees Not Barred by Wisconsin Workers’ Compensation Act U.S. District Court for the Western District of Wisconsin, April 17, 2018

WISCONSIN — Two deceased Weyerhauser employees brought claims against their former employer for common law negligence, negligent nuisance, and intentional nuisance. In an effort to avoid the exclusivity provisions of Wisconsin’s Workers’ Compensation Act (WCA), both plaintiffs alleged that the defendant Weyerhauser’s activities exposed them to asbestos in the community, not during the course of their employment with the defendant, causing their mesothelioma. Weyerhauser challenged the pleadings on several bases, and the court granted and denied their motion in part. The court denied Weyerhauser’s motion to dismiss based on exclusivity of the WCA. Weyerhauser argued that the plaintiffs’ exposure to asbestos still arose out of their employment, and that prior authority supported the bar of these types of community claims. The court was unpersuaded, finding that prior decisions both within ...
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Plaintiff Survives Motion to Dismiss Upon Adding Additional Allegations in Amended Complaint U.S. District Court for the Western District of Wisconsin, April 17, 2018

WISCONSIN — The plaintiff filed suit against Weyerhauser and its insurer for alleged emissions of asbestos into the Marshfield, Wisconsin community. Plaintiff Michael Kappel moved to add additional allegations to his complaint. Weyerhauser moved to dismiss. The plaintiffs were substituted upon Mr. Kappel’s passing. Weyerhauser sought dismissal on two separate grounds. First, the defendant argued the plaintiffs did not allege Mr. Kappel’s exposure from work at Weyerhauser in an effort to circumvent the exclusivity rules in the local worker’s compensation statute. The court disagreed as the complaint alleged exposure from “community or environmental” exposure only. Relying on its previous decisions in the Kilty/Spatz cases, the court noted the plaintiffs were not required to allege exposure from employment. Moreover, Mr. Kappel did not work at Weyerhauser during the time of the ...
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Summary Judgment Granted and Request for Continuance Denied Based Upon Lack of Evidence U.S. District Court for the Northern District of California, April 16, 2018

CALIFORNIA — Defendant, Rohr, Inc., filed a motion for summary judgment based upon a lack of evidence demonstrating the plaintiff was exposed to a Rohr product. The plaintiffs opposed the motion, but failed to present any such evidence in support of their opposition. The plaintiffs also filed a motion to continue, pursuant to Federal Rule of Civil Procedure 56(d), for additional time to conduct discovery. To succeed on such a motion, the moving party must show: 1) an affidavit setting forth the specific facts to be elicited from further discovery; 2) the facts sought exist; and 3) the sought-after facts are essential to oppose summary judgment. For the second requirement, the plaintiffs argued that “if Rohr were to actually search their records … they would uncover the components used to ...
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Case Remanded Based Upon Lack of Fraudulent Joinder U.S. District Court for the District of South Carolina, April 16, 2018

SOUTH CAROLINA — The plaintiff filed a lawsuit in the Court of Common Pleas for Darlington County, South Carolina, alleging that Bertila Boyd-Bostic suffered from mesothelioma due to asbestos exposure in the 1980s. On March 2, 2018, a Third Amended Complaint was filed, alleging that Johnson & Johnson, Imerys Talc America, Rite Aid of South Carolina and others were liable for Ms. Boyd-Bostic’s mesothelioma, based upon her use of baby powder. The recently-joined defendants removed the case on April 6, 2018. The plaintiff filed an emergency motion to remand, arguing that there was incomplete diversity between the parties due to Rite Aid of South Carolina’s citizenship in that state. Removing the defendants countered by arguing that Rite Aid of South Carolina was improperly named, and that the correct entity was ...
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Cases Remanded After Court Determines Defendant Shipbuilder Controlled Safety Procedures U.S. District Court for the Eastern District of Louisiana, April 11, 2018

LOUISIANA — The Eastern District of Louisiana granted motions to remand in two separate mesothelioma cases arising out of alleged exposure to asbestos through work for defendant Avondale Industries, Inc., a shipbuilder for the United States Navy. Each plaintiff originally filed their actions in state court, alleging that Avondale failed to warn of the hazards of asbestos and failed to implement proper safety procedures for the handling of asbestos. Avondale removed the matter to federal court on federal officer jurisdiction. In remanding, the court focused on evidence that the federal government had no control over Avondale’s application of safety measures, despite the fact that the government did specify Avondale’s use of asbestos in building the ships. The court cited testimony from two Avondale supervisors and a federal ship inspector, who ...
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$80 Million Punitive Award in Asbestos-Talc Case

NEW JERSEY — Following up on a prior ACT post  regarding a compensatory damages verdict of $37 million dollars against Johnson & Johnson and Imerys Talc America, Inc., the same New Jersey jury awarded a total of $80 million in punitive damages. This case involved allegations that plaintiff Stephen Lanzo developed mesothelioma after years of use of talcum powder that plaintiff claimed was contaminated with asbestos.  Of the total punitive damages sum, $55 million was awarded against Johnson & Johnson and $25 million against Imerys. Both defendants are expected to appeal.  
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Motion for Reconsideration Based Upon Change in Law Denied as Untimely U.S. District Court for the District of Delaware, April 9, 2018

DELAWARE — Plaintiffs Icom and Johanna Evans filed a lawsuit on June 11, 2015 in Delaware Superior Court relating to Mr. Evans’ alleged asbestos exposure. Foster Wheeler removed the matter to federal court on August 4, 2015, pursuant to the federal officer removal statute. Defendants Foster Wheeler and Warren Pumps filed motions for summary judgment in October 2016. Both motions were opposed. The district court issued a Report and Recommendation (R&R) on August 30, 2017, recommending that the motions be granted pursuant to maritime law, based upon the lack of substantial factor causation and the bare metal defense. The plaintiffs did not oppose the R&R, and Judge Robreno adopted the court’s recommendation and granted the motions on September 26, 2017. In a separate case, on October 3, 2017, the Third Circuit ...
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Maryland’s Court of Appeals Rules on Applicability of Statute of Repose

MARYLAND — The Maryland Court of Appeals reversed the decision of the Court of Special Appeals in the matter of Duffy v. CBS Corporation, making two holdings relating to Maryland’s Statute of Repose. First, the court held that an injury related to asbestos exposure that underlies a cause of action for personal injury or wrongful death arises at the time of exposure. The court held that the “exposure approach,” as adopted by the Court in John Crane Inc. v. Scribner, 369 Md. 369, 383, 800 A.2d 727, 735 (2002), was applicable to determine if a party’s injuries or cause of action arose prior to the enactment of the statute of repose. Second, the court held that the estate’s causes of action were not barred by the statute of repose because the ...
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New Jersey Jury Awards $37 Million Compensatory Damage Verdict in Asbestos-Talc Case

NEW JERSEY — On April 5, 2018, a Middlesex County, New Jersey jury awarded $37 million in compensatory damages to Plaintiff Stephen Lanzo III and his wife, Kendra, in a mesothelioma case. The plaintiffs alleged that Lanzo developed mesothelioma from his decades-long exposure to asbestos-containing talcum powder sold by Johnson & Johnson and supplied by Imerys Talc America, Inc.  The jury awarded $30 million to Lanzo and $7 million to his wife. The jury will return on April 10, 2018, to consider the plaintiffs’ claims for punitive damages.  
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Federal Court Denies Summary Judgment Under Massachusetts Statute of Repose, But Grants Defendants’ Motions on Other Grounds U.S. District Court for the District of Massachusetts, March 30, 2018

MASSACHUSETTS — The plaintiffs allege that the decedent, Wayne Oliver, developed mesothelioma from bystander exposure to asbestos during his work as a pipe inspector on the construction of two power plants in the 1970s. Defendant General Electric Company (GE) specified and produced steam turbine-generators for the power plants, and supervised their installation. Defendant NSTAR, formerly known as Boston Edison Company (NSTAR/BECO), owned one of the power plants during the time of the decedent’s work. The decedent worked for non-party Bechtel Corporation, who acted as the owner’s architect/engineer, and who specified and procured all construction materials for the projects, with the exception of the GE turbine-generators. Both defendants moved for summary judgment on statute of repose and other grounds. GE’s motion was denied on statute of repose grounds, but granted on ...
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