Beyond the Gateway Arch -Talc Litigation Update Nine Months After Mammoth St. Louis City Jury Verdict

 

In July 2018 a St. Louis City jury heard one of the first trials involving allegations of the development of ovarian cancer due to talc contaminated with asbestos.[1] In a decision that shocked both the plaintiff and defense bar, the jury awarded $25 million to each of 22 plaintiffs for a total of $550 million in compensatory damages. The jury then spent less than two hours deliberating punitive damages before returning with a total award of $4.14 billion against defendants Johnson & Johnson ($3,150,000,000.00) and Johnson & Johnson Consumer Inc. ($990,000,000.00). In December 2018, the trial judge denied Johnson & Johnson’s motion to set aside this verdict, ruling that sufficient evidence was presented to support the award.

In the nine months since this unprecedented multi-billion award, talc litigation continues in full force with a range of decisions. While this article summarizes some of the major defense verdicts, mistrials, and summary judgment rulings nationwide since the July 2018 decision in St. Louis City, this summary is not exhaustive. Although talc litigation shows no signs of slowing down, defense verdicts remain attainable, and one major player in talc litigation is now out of the picture.

Defense Verdicts

An Oregon jury delivered a defense verdict for defendant Chanel on September 17, 2018, after a four-week trial in a living pleural mesothelioma claim. Chanel asserted a spontaneous etiology defense and the jury unanimously found that (i) Chanel was not negligent and (ii) there was no defect in the Chanel cosmetic talc product allegedly used by the plaintiff in this case.

Two months later in California, on November 14, 2018, a Northern California state jury returned a defense verdict in favor of the defendant J&J.[2] The jury found J&J not liable for plaintiff Carla Allen’s mesothelioma. The plaintiff alleged that J&J knew its talcum products contained asbestos and were likely hazardous to the health of consumers. The primary allegation centered on the use of J&J’s baby powder by both the plaintiff and her mother Mick Allen, and whether the exposure to that product was a substantial factor in causing Carla Allen’s mesothelioma. The Humboldt County, California jury ultimately returned a defense verdict. The jury did find there to be a manufacturing defect, but also found it was not a substantial factor in causing the plaintiff’s mesothelioma.

J&J won another defense verdict on March 27, 2019, when a New Jersey jury found it was not liable in causing the mesothelioma of 58-year-old plaintiff Ricardo Rimondi. Rimondi alleged decades of use of J&J’s baby powder, which the plaintiff claimed contained talc contaminated with asbestos. However, plaintiff’s experts failed to acknowledge that the plaintiff grew up and lived in close proximity to an asbestos cement factory.

Less than two weeks later, another California jury found for J&J. In Blinkinsop v. Johnson & Johnson, et al., a California jury found that a defendant’s talcum powder did not contain asbestos, and therefore rejected the plaintiff’s claims that his use of the defendant’s products caused his mesothelioma.[3] Following a five-week trial, a Long Beach jury deliberated for less than 24 hours in returning a unanimous verdict in favor of J&J.

Mistrials

On September 24, 2018, a mistrial was declared in a talc lawsuit filed against J&J in the Superior Court for Los Angeles, California, after a jury remained deadlocked following more than five days of deliberations. The plaintiff, Carolyn Weirick, alleged the development of mesothelioma through the use of asbestos-contaminated talc, and sought at least $25 million in damages.[4]

Two mistrials in the same case resulted in South Carolina in 2018. In May 2017, the plaintiffs filed suit against fifteen companies alleging that exposure to asbestos caused plaintiff Antoine Bostic, a 30-year-old attorney, to develop mesothelioma; one month prior to his death the plaintiffs filed an amended complaint, adding talcum powder defendants, including J&J. In both mistrials (May 2018 and November 2018), the jury deliberated for less than a day before stating that additional deliberations would be of no help, leading the judge to declare a mistrial.[5]

Nonsuits

Following a four-week trial, nonsuit was entered on February 5, 2019, just prior to closing arguments in a talc mesothelioma trial venued in Los Angeles, California state court. At the conclusion of the plaintiffs’ case, Colgate-Palmolive moved for nonsuit, arguing that the plaintiffs had failed to present a prima facie case linking the use of Cashmere Bouquet talcum products to the plaintiff’s injury. The plaintiffs argued that they only had to prove that fibers from the defendant’s product contributed to the aggregate dose of asbestos to which the plaintiff was exposed during his or her lifetime. Subsequent to all of the evidence being submitted, the court heard argument on the motion for nonsuit and granted it later the same day.

Summary judgment remains elusive, with the majority of decisions denying same. Below are some of the summary judgment rulings issued by various courts since the July 2018 verdict in St. Louis City.

A Georgia court granted summary judgment for defendant Colgate-Palmolive on September 28, 2018.[6] The plaintiff, Sharon Hanson, used Colgate Palmolive’s Cashmere Bouquet talcum powder product for 12 years, from 1961 to 1973. She was later diagnosed with both ovarian cancer and mesothelioma, and passed in April 2018. The court excluded the opinions of plaintiff’s four causation experts due to Colgate’s Daubert challenge. The court also concluded that the plaintiff was unable to demonstrate that the Cashmere Bouquet product which she used contained asbestos. Even if the product contained asbestos, there was no evidence regarding the level of plaintiff’s asbestos exposure and the contribution of the Cashmere Bouquet product to the plaintiff’s mesothelioma and ovarian cancer.

The Supreme Court of New York denied summary judgment for defendants in November 2018. The plaintiff Donna Olson filed suit against the defendants J&J and J&J Consumer Inc. alleging she developed pleural mesothelioma as a result of exposure to cosmetic talcum powder, including baby powder and Shower to Shower from 1953-2015.[7] Additionally, the plaintiff claimed exposure from her mother’s application of the same. The defendants argued that the plaintiffs had not presented any evidence of exposure to asbestos. Specifically, they argued that: 1) the talc was sourced from asbestos free mines 2) the mined talc was purified 3) there were internal tests to ensure the lack of contamination 4) both government and independent tests confirmed the product was asbestos free. The court was not persuaded and noted that pointing to gaps in the plaintiff’s proof was not sufficient to grant summary judgment.

Two weeks later, New York again denied summary judgment to J&J on November 30, 2018.[8] The plaintiff Anna Zoas alleged that her mesothelioma was caused by asbestos present in J&J baby powder. J&J argued that there was no asbestos contamination from their products for numerous reasons, and that its experts demonstrated that the plaintiff was not exposed to asbestos through the use of their products. The plaintiff stated that the defense experts did not “unequivocally” establish that J&J products could not have contributed to the causation of the plaintiff’s injury. The court noted that based upon the conflicting expert opinions, the reasonable inference standard and construing the evidence in a light most favorable to the plaintiff, the motion for summary judgment should be denied.

The year 2019 started with a summary judgment win for the defense in Pennsylvania. On February 8, 2019, the Philadelphia County Court of Common Pleas granted summary judgment to Colgate-Palmolive Company in a case wherein the plaintiffs alleged that asbestos exposure from Cashmere Bouquet talcum powder caused the decedent’s mesothelioma.[9] Summary judgment was granted after the court precluded the expert opinions of the plaintiff’s geologist, pathologist, industrial hygienist, and airborne concentration experts.

Conclusion

During the nine months between July 2018 and May 2019 there were various rulings in cases alleging personal injury due to asbestos-contaminated talc. One of the biggest developments during this time was the status change of frequent defendant Imerys Talc. On February 13, 2019, Imerys Talc America, Inc., Imerys Talc Vermont, Inc., and Imerys Talc Canada Inc. filed a petition to seek bankruptcy protection under U.S. Chapter 11.[10] In support of their petition, the Imerys entities referenced “significant potential liabilities as a result of thousands of claims by the plaintiffs alleging personal injuries caused by exposure to talc mined, processed, and/or distributed by one or more of the Debtors” as a factor leading to the filing. According to the petition, the entities face 13,800 pending ovarian cancer claims and 850 pending mesothelioma claims. By the company’s calculations, in the mesothelioma claims, approximately 63 percent of the plaintiffs allege exposure to asbestos through the use of cosmetics, 24 percent allege exposure in industrial occupational settings, and 13 percent allege both cosmetic and industrial exposure. Due to this bankruptcy, larger verdict shares could be apportioned to remaining defendants in any given case.

As with all litigation, assorted factors come into play when attempting to predict the outcome of claims, including venue and the fickleness of juries. As the above brief summary of a portion of these cases shows, the outcome of this litigation is less than clear, as all parties involved advocate fully for their clients.

[1] Ingham et al. v. Johnson & Johnson, et al.; Case No. 1522-CC1417.

[2] Carla Allen v. Brenntag North America, Inc., et al., No. DR180132, Superior Court of the State of California, Humboldt County

[3] Blinkinsop v. Albertson Co., BC677764, Superior Court, Los Angeles Co. (Long Beach).

[4] Weirick v. Brenntag North America, BC656425, California Superior Court for Los Angeles County (Pasadena).

[5] Antoine Bostic v. Johnson & Johnson, 2017-CP-16-0400, Court of Common Pleas for Fourth Judicial Circuit of South Carolina (Darlington).

[6] Douglas Hanson, Individually and as Executor of the Estate of Sharon Hanson, Deceased v. Colgate-Palmolive Company, CV 216-034, U.S. District Court, Southern District of Georgia, 2018 WL 4686438.

[7] In re: New York City Asbestos Litigation, Donna Olson and Robert Olson v. Brenntag North America, Inc., et al., No. 190328/2017, Supreme Court of New York, New York County

[8] Zoas v. BASF Catalysts, LLC, No. 190162/2017, Supreme Court of New York, New York County

[9] Charles Brandt, special administrator for the estate of Sally Brandt, deceased v. Colgate-Palmolive, et al., Philadelphia County Court of Common Pleas

[10] In re Imerys Talc America, Inc., et al., U.S. Bankruptcy Court for the District of Delaware, No. 19-10289-LSS (February 13, 2019)

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