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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Defects in Chain of Custody Lead to Affirmation of Talcum Powder Defendant’s Motion for Summary Judgment Court of Appeal, Second District, Division 4, California, May 16, 2018

The plaintiffs Barbara and John Wittman asserted claims for negligence, strict liability, breach of warranty, and loss of consortium against Defendant Coty, Inc. (Coty) alleging that Barbara’s exposure to asbestos in Coty’s talcum powder resulted in her developing mesothelioma. Coty filed a motion for summary judgment, contending that Wittmans’ discovery responses and deposition testimony “demonstrated their inability to prove the claims.” Coty stated that the Wittmans could not show that Barbara was exposed to asbestos through the particular Coty product she had used, namely, a specific face powder. Coty further sought summary judgment on the request for punitive damages on the grounds that the Wittmans could not show oppression, fraud, or malice. The Wittmans opposed summary judgment and summary adjudication, contending that Coty “did not carry its initial burden regarding ...
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Vexing Statute of Repose Question Sent to Massachusetts Supreme Judicial Court United States District Court, District of Massachusetts, May 14, 2018

MASSACHUSETTS  — The plaintiffs sued multiple defendants in the United States District Court, District of Massachusetts, alleging that the plaintiffs’ decedent, Wayne Oliver, was exposed to asbestos during the construction of two nuclear power plants.  Defendant General Electric (GE) filed a motion for summary judgment on counts I,II,IX, and X in the plaintiffs’ Third Amended complaint; both parties agreed that the affected counts were governed by the substantive law of the Commonwealth of Massachusetts. GE invoked the Massachusetts statute of repose for improvements to real property, and the court stated that although the GE turbine-generators at issue, including their insulation materials, were improvements to real property under the statute, “the more vexing is the question whether the statute of repose applies in the context of a contractor like GE’s asbestos-related work.”  ...
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Wisconsin’s Uniform Fraudulent Transfer Act Found Not Applicable in Successor Liability Case Against Refractory Manufacturer Supreme Court of Wisconsin, May 15, 2018

WISCONSIN — In a follow up to Asbestos Case Tracker’s previous post, the Supreme Court of Wisconsin reversed the Court of Appeals’ decision in a recent mesothelioma case involving allegations of fraudulent conveyance by a successor in interest entity. The plaintiff originally filed suit against several defendants including Fire Brick Engineering and Powers Holding claiming they were responsible for her late husband’s development of mesothelioma. Mr. Springer was allegedly exposed to asbestos from 1963-69. The plaintiff filed her suit against Powers naming it as successor to Fire Brick Engineers (FBN1). FBN1 manufactured asbestos containing products including refractory materials. Years after being formed, investors formed an entity that would purchase the “assets only” of FBN1. The entity that bought the assets only was known as FBN2 until it was acquired by ...
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Baltimore $5 Million-plus Verdict Overturned for New Trial Court of Special Appeals of Maryland, May 11, 2018

MARYLAND — On May 11, 2018, defendants Mack Trucks, Inc. and Ford Motor Co. (collectively as defendants) won a new trial with a decision that overturned a $5 million-plus verdict issued by a Baltimore City jury. The Court of Special Appeals of Maryland found that the trial court provided improper instructions to the jury on the issue of negligence, which was prejudicial to the defendants. Accordingly, the judgments were reversed and remanded for further proceedings on the negligence claims against them not inconsistent with the court’s opinion. Plaintiff Christopher Coates was diagnosed with malignant mesothelioma in June 2015 at 67 years old.  He filed suit shortly thereafter on October 6, 2015 in the Circuit Court for Baltimore City against 30-plus defendants. The plaintiff alleged claims in negligence and strict liability ...
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Supreme Court Accepts Review of Bare-Metal Defense Under Maritime Law U.S. Supreme Court, May 14, 2018

On May 14, 2018, the U.S. Supreme Court accepted the petition of Air & Liquid Systems, CBS Corporation and Foster Wheeler to resolve a split among circuits regarding the viability of the bare metal defense under maritime law. Specifically, the parties appealed the Third Circuit’s ruling in October 2017 that the bare metal defense is inapplicable to negligence claims under maritime law. That opinion was previously analyzed by this blog post. The Supreme Court will resolve a split on the issue between the Third and Sixth Circuits. The exact issued to be reviewed by the Supreme Court is “Can products-liability defendants be held liable under maritime law for injuries caused by products that they did not make, sell, or distribute?”
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Turbine Manufacturer’s Choice of Law Motion Granted Based on Location of Asbestos Exposure and Diagnosis U.S. District Court for the District of Massachusetts, May 9, 2018

MASSACHUSETTS — Plaintiff Ruth Burleigh, the widow of the plaintiff’s decedent Ernest Burleigh, filed suit in the U.S. District Court for the District of Massachusetts against numerous defendants alleging that decedent developed mesothelioma as a result of exposure to asbestos while working as a mechanic at the Portsmouth Naval Shipyard (the shipyard) from 1960-1981. The shipyard is located in Kittery, Maine, approximately 20 miles from the Massachusetts border. The plaintiff’s decedent alleged exposure to asbestos in Maine only, was a resident of Maine for the entirety of his alleged exposure, and was diagnosed in Maine. Defendant GE filed an answer to the original complaint, asserting that it “adopts the master cross claim (sic) against all defendants,” therefore they also asserted a crossclaim for contribution against codefendants as joint tortfeasors with ...
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Summary Judgment Reversed on Application of “All Sums” Approach United States District Court, E.D. Missouri, Eastern District

MISSOURI—This suit involves multiple insurance policies covering the same dates of exposure.  The spouse of an Anheuser-Busch (AB) employee developed mesothelioma from asbestos exposure acquired while laundering the clothes of her husband, who worked for AB from 1971-1996.  Suit was filed in 2008, and AB tendered its defense to Zurich American Insurance Company (Zurich), which had issued personal injury and excess coverage policies to AB for two periods covering 1967-72 and 1972-1980.  Zurich defended under a reservation of rights, paid all defense costs, and settled the matter in 2014 for $1.5 million. Zurich then brought the instant matter for equitable contribution, subrogation, and unjust enrichment against its insured AB, and their subsequent insurer Insurance Company of North America (INA), which had issued a policy to AB covering 1980-1997.  Finding conflicting ...
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Lack of Causal Nexus Leads to Grant of Remand Against Shipyard Defendant U.S. District Court for the Eastern District of Louisiana, May 4, 2018

LOUISIANA — The plaintiff filed suit against several Defendants including Avondale Shipyards. James Latiolais allegedly developed mesothelioma from his work as a machinist onboard the USS Tappahannock. Avondale removed the case after the plaintiff’s deposition concluded. The removal was made pursuant to Federal Officer Removal Statute, 28 U.S.C. § 1442 (a)(1). The plaintiff moved to remand. The court began its analysis by discussing the elements associated with Federal Officer Removal. First, the defendant must meet the criteria of being a “person” which includes corporations like Avondale, according to the court. Second, the causal nexus requires a showing that the defendant’s conduct was directed by the federal government and whether that conduct “caused the plaintiff’s injuries.” Avondale easily met the first element of being a person as defined by the statute. ...
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Failure to Adopt Safety Measures is Private Conduct That Implicates No Federal Interest U.S. Court of Appeals, Fifth Circuit, May 1, 2018

LOUISIANA — Several former employees of Huntington Ingalls, including Robert Templet, brought suit in Louisiana state court, alleging that the company failed to warn them of the risks of asbestos exposure and failed to implement proper safety procedures for handling asbestos.  Templet worked for Huntington Ingalls from 1968 to 2002 and alleged his handling of asbestos-containing materials at various worksites from 1968-79 caused him to contract mesothelioma. Huntington Ingalls removed the case to the U.S. District Court for the Eastern District of Louisiana under the federal officer removal statute, 28 U.S.C. Section 1442(a)(1), alleging that the company used asbestos to construct vessels under government-mandated contract specifications. The Eastern Destruct remanded the case back to state court, and Huntington Ingalls appealed to the U.S. Court of Appeals, Fifth Circuit. The Appeals ...
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Frustrated Court Denies Plaintiffs’ Motion to Reconsider Exclusion of Kenneth Garza Due to Lack of Authority U.S. District Court for the Eastern District of Wisconsin, May 2, 2018

WISCONSIN — In this case set for trial on June 4, 2018, the plaintiffs filed eleven motions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and various motions in limine. After hearing and argument, the court granted defendant Pabst Brewing Company’s motion to bar, under Daubert, Kenneth Garza’s reports, opinions, and testimony, and granted the Daubert motion of defendants Sprinkmann, Employers Insurance Company and WEPCO’s to exclude Garza’s testimony. The court found that although Garza’s training and background gave him the knowledge and expertise to qualify as an expert in the area of industrial hygiene, the plaintiffs had not demonstrated that his methods were reliable, especially since his general report contained nothing specific to the facts of this case. The plaintiffs filed a motion to reconsider, which the ...
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