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By Peter Hayes
Johnson & Johnson has been hit with more than $600 million in jury awards over the last two years in cases alleging its popular Baby Powder and Shower to Shower talc products caused women to contract ovarian cancer.
A jury in August awarded a Los Angeles woman $417 million in an ovarian cancer suit in the most recent verdict. As that litigation, which involves thousands of pending suits, continues to be fought, the health care products giant faces a new battle involving those same talc products.
The initial salvo is set for Sept. 18, when a jury, this one also in Los Angeles, is set to hear opening arguments in the first suit to go to trial alleging some J&J talc products made decades ago were contaminated with asbestos ( Herford v. AT&T Corp., No. BC646315, Cal. Super. Ct.).
The suit alleges that Tina Herford developed mesothelioma, an asbestos-related disease, from breathing in the company’s Baby Powder and Shower to Shower products between 1956 and 1993.
It is the first such case slated for trial against J&J. But many more cases are likely on the way.
“I think there is potential for large-scale litigation here, but it will be different from both asbestos litigation and talc/ovarian cancer litigation,” Distinguished Emeritus Professor Jean Eggen at Widener University Delaware Law School, Wilmington, Del., told Bloomberg BNA. Eggen specializes in toxic torts, civil procedure and science and the law.
Eggen said that, because of varying claims, sources of talc, and causation hurdles, this latest wave of talc cases against J&J will be both easier and harder to litigate than both traditional asbestos suits involving insulation materials, and the ovarian cancer cases the company is already fighting.
And with several multimillion-dollar verdicts having been handed down against other makers of older talc products recently, the Johnson and Johnson asbestos-in-talc litigation is expected to be both protracted and contentious, drawing in many other plaintiffs, mostly women, who, like Herford, allege airborne exposure from using the consumer products.
Johnson & Johnson declined to comment either on Herford’s suit or the litigation generally. But a statement on the company’s website says: “Since the 1970s, talc used in consumer products has been required to be asbestos-free, so Johnson’s talc products do not contain asbestos.”
A defense attorney involved in similar litigation against other talc makers pointed to several verdicts in favor of other companies, and said both the science and the evidence linking decades-old products to particular plaintiffs’ asbestos-related illnesses are these suits’ weak spots.
Eggen said asbestos-in-talc claims may afford plaintiffs more causes of action than traditional asbestos suits.
Because older insulation products intentionally contained asbestos, Eggen said, “failure-to-warn claims were the only product liability claims available to plaintiffs.”
“But asbestos in talc is a contaminant, which opens up the possibility of other claims in addition to failure to warn, such as negligence in the failure to detect the contaminant and/or assure that the talc products were pure,” she said.
But such cases also will be harder to prove, Eggen said.
“First, the plaintiff must prove actual exposure to asbestos in the talc. It’s my understanding that not all talc products during the time in question contained asbestos because not all the talc mines contained asbestos. This leads to the possibility that not all of a particular manufacturer’s talc product may have been contaminated with asbestos. Sorting this out may be very tricky for plaintiffs,” she said.“Second,” Eggen said, “the plaintiffs must prove exposure via inhalation of a sufficient amount to initiate development of mesothelioma. This dovetails with the ongoing debate about how much asbestos is sufficient to start the disease process, which could take decades to become symptomatic.”
On the other hand, the long running nature of the asbestos litigation against insulation makers could also help the plaintiffs with their causation fight, Eggen said. These new asbestos plaintiffs will have “decades of epidemiological studies showing a causal relationship between the inhalation of asbestos fibers and mesothelioma,” she said.
“So once exposure is satisfactorily demonstrated, the plaintiff’s case will be similar to the causation cases in traditional asbestos litigation,” Eggen said.
Such science further differentiates the asbestos-in-talc cases from the ovarian cancer suits J&J is also battling over its talc products.
“This differs from the talc/ovarian cancer litigation because those cases involve ongoing and evolving scientific evidence which will be challenged as to whether it meets the standards of evidentiary admissibility,” she said.
Asbestos-contaminated talc claims have been brought against other companies over their older products, including Colgate-Palmolive Co.; Whittaker, Clark & Daniels Inc.; and R.T. Vanderbilt Co. Inc. The companies have won several, but not all, of these suits.
In one case, a Los Angeles jury in April 2015 ordered Colgate-Palmolive to pay $12.4 million related to exposure to its Cashmere Bouquet product (Winkel v. Colgate-Palmolive Co., No. BC549253, Cal. Super Ct.).
And, in October 2016, another Los Angeles jury ordered talc supplier Whittaker, Clark & Daniels to pay $18 million to a man who alleged he developed mesothelioma after being exposed to talc his father brought home from working in a barber shop and from using personal care products (DePoian v. American Intl. Indus., Inc., No. BC607192 Cal. Super. Ct.).
In another case, in 2012, a jury in Delaware awarded $2.86 million to the family of a man who died of cancer in a suit against R.T. Vanderbilt for failing to warn of the dangers of its industrial talc used in the plaintiff’s workplace (Galliher v. American Optical Corp., et al., No. 10C-10-315, Del. Super. Ct.).
Another jury, this one in New York, ordered R.T. Vanderbilt in 2015 to pay $10.55 million in another wrongful death case alleging asbestos in talc (Chisholm v. R.T. Vanderbilt Co. Inc, No. 2012-1056, N.Y. Super. Ct.).
But until now, J&J has remained above the fray.
Attorney Chris Panatier with Simon Greenstone Panatier Bartlett PC in Dallas represents Tina Herford, whose case is set for trial Sept. 18.
Panatier also represented the plaintiff in Winkel v. Colgate-Palmolive, which resulted in the $12.4 million award.
J&J remained off the radar until recently because there wasn’t enough information about the origins of Johnson & Johnson’s talc products, Panatier told Bloomberg BNA.
“There was publicly available information for Cashmere Bouquet, but not for J&J,” he said.
“Johnson & Johnson owned their own source of talc, and there was no public information other than a few geological surveys,” he said.
The pending suits coming now are also a matter of critical mass, “as enough women came into our office with no other exposure,” Panatier said.
The incidence of mesothelioma has always been higher in men than women, but that gap is closing, according to the National Institutes of Health. And Panatier said the science, and plaintiffs’ attorneys, are finally starting to figure out why at least some of those women are contracting the asbestos-related illness.
“We couldn’t find the source of exposure for women. But we now think we’ve found the Rosetta Stone, which is talc,” Panatier said.
“We started testing it and quite a lot contains asbestos,” he said. “Johnson & Johnson sent us 69 boxes of documents, and what we found was utterly shocking.”
Panatier also said the company, while knowing of the asbestos in its products, engaged in public relations attacks on those who pointed out the problem. “They spent decades hiding information on their flagship product,” he said.
Also, Panatier said: “They tried to get their consultants to figure out a way to remove asbestos from their talc, but the consultants told them ‘We can’t get rid of it.’”
Panatier said his firm is currently handling more than a dozen asbestos-in-talc cases against Johnson & Johnson. Other plaintiffs’ firms with similar suits include Kazan McClain Satterley and Greenwood in Oakland, Calif.; Waters Kraus & Paul in Dallas; and Levy Konigsberg in New York.
Professor Howard Erichson at Fordham University School of Law in New York said the suits are a continuation of the long-running asbestos litigation.
Erichson has published widely on such litigation topics as class actions and mass tort litigation.
“Johnson and Johnson is facing so much litigation recently, and for J&J these suits have to be troubling, but this is just one more piece of the asbestos litigation story,” he said.
Many of the suits are being filed in Los Angeles because they have a procedural rule that allows plaintiffs to get to a jury quickly, a defense attorney who has been involved in asbestos-in-talc litigation against other makers told Bloomberg BNA.
“If the plaintiff is over 70 years old and unlikely to live more than six months, they get a preference. Once the trial date is set it can’t be extended unless the plaintiff agrees to it,” the attorney, who didn’t want to be identified, said.
But regardless of venue, he said, the plaintiffs’ scientists in these cases are engaging in “pseudo-science.”
“They are not using reliable methodology or counting criteria,” he said.
The attorney also said older talc products contained little to no asbestos and, if any asbestos were in the products, the exposures consumers received would have been significantly less than those of workers who found and processed the talc.
“Rigorous analysis, applying the right criteria, has shown that none of these talcs contain asbestos,” he said.
“But even if there were trace levels of asbestos, the exposure is qualitatively different from that of miners and millers who were repeatedly exposed,” he said.
An additional hurdle for the plaintiffs is that most of them don’t possess decades-old cans of the talc powders to test, making it hard to show that the talc to which they were exposed contained asbestos.
“Mesothelioma has a minimum latency period of 10 years, but it’s really 30-50 years,” he said.
So unless plaintiffs exposed decades ago hung onto cans of talc from long ago, they may have difficulty obtaining and testing a sample of talc from that era to prove that it contained asbestos.
Though talc product makers have lost some of the cases filed against them, the defense attorney expressed optimism about the future defense of these suits.
“Early verdicts were favorable for plaintiffs, but the trend line is that juries are rejecting them,” he said.
To contact the reporter on this story: Peter Hayes in Washington at PHayes@bna.com
To contact the editor responsible for this story: Steven Patrick at email@example.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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