In recent months, talc litigation has been the subject of much discussion throughout the industry. What’s clear is that talc litigation is not going away anytime soon. What are the latest developments? And what do they mean for companies that could get swept into this litigation?
In April, an article in CLM magazine compared talc litigation to the decades-old asbestos litigation. Titled “Asbestos Gets a Makeover,” it argues that talc litigation, while still in its infancy, is likely to have even more impact than traditional asbestos litigation. Plaintiffs are typically younger females who allege using talc-containing products daily for years. The fear is that punitive damages could be significantly larger than those for traditional asbestos litigation, for whom the plaintiff is typically a male in his late 70s. In addition, talc-related products are still on store shelves or perhaps only recently removed. Since the diseases alleged from talc usage are believed to have at least a 40-year latency period, the horizon for talc litigation may extend beyond a half century.
Later than same month, we attended the ABA Toxic Torts and Environmental Law Conference in Scottsdale, Arizona. It opened with a panel on talc litigation, moderated by Andrew Kornblau of Landman Corsi Ballaine & Ford, PC, including an interesting discussion about how the litigation is increasingly moving from talc manufacturers to “downstream” defendants such as distributors and retailers—especially in the wake of bankruptcy filings by large talc defendants like Imerys and Johnson & Johnson. We saw the same progression with asbestos litigation. At first, the defendants were asbestos product manufacturers, but as they filed for bankruptcy—especially in the early 2000s—the litigation focused on other tangential defendants.
The panel discussed Nemeth v. Brenntag North America in New York. At the time of the conference, a decision by the New York Court of Appeals was pending. The issue was causation: Is there a general expected causation that the trace asbestos found in talc is enough to cause cancer in talc users? Days after the conference, the court released its opinion that there is not general causation. The burden is on the plaintiff to prove the asbestos in the talc caused the cancer in each individual case.
Talc litigation was also discussed at the virtual Perrin Conferences Asbestos Litigation Trends and Trial Overview Conference we attended in June. This panel featured Andrew Kornblau and Edward Ulloa of Hawkins, Parnell & Young, LLP. The focus of this discussion was jurisdiction and talc-related verdicts for mesothelioma and ovarian cancer in 2021. There were five talc-related mesothelioma plaintiff verdicts last year, all of them in California. In most cases, punitive damages there were awarded and equaled at least double the compensatory damages. For example, the October 2021 Johnson & Johnson case in Los Angeles received a plaintiff verdict of almost $2.5 million in compensatory damages and $25 million in punitive damages. By comparison, in 2021 there were three ovarian cancer talc-related trials that went to verdict in Pennsylvania, Illinois, and Missouri. All resulted in defense verdicts. Based on last year’s decisions, California can be a risky place for defendants to take a case to trial.
The EPA is also bringing talc litigation into the spotlight by conducting an asbestos risk evaluation. Part 1 of the evaluation focused on chrysotile asbestos—the only asbestos fiber type that is currently imported, processed, or distributed in the United States. Part 2, however, focuses on “legacy uses and associated disposals, other types of asbestos fibers in addition to chrysotile, and conditions of use of asbestos-containing talc.” The EPA expects to release its review for comment in December 2024. It will be interesting to see how the EPA links talc and asbestos and what impact that might have on litigation.
As talc-related litigation continues, there are steps you can take now in case you face a day when your company is a defendant in this litigation:
It’s important to keep your claimant data, cost data, and insurance policies organized. Find and read your insurance policies—from the 1950s until today. There may be policies available to pay that were purchased decades ago, when the claimant was first alleged exposed. To greatly increase the likelihood of insurance recovery, it is important to track individual claimant attributes, such as disease alleged, dates of alleged exposure, etc. as well as track defense costs and settlement costs specific to the litigation in a separate cost center tied to individual claimants.
Use technology to your advantage. Technology can be used to find and prove alternative exposures. It can also be used to automatically, and efficiently, triage cases by flagging certain attributes for riskier cases.
Having a trial strategy and a trial-ready team is often a deterrent for an overly aggressive plaintiff’s counsel and can lead to better settlement outcomes for you, the defendant.
In a future blog, we will further expand on methods defendants can take to manage their docket, so that they can be prepared as talc litigation develops.
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Having spent much of her career serving clients who are asbestos defendants, Michelle Potter is an authority on the current state of the asbestos litigation industry. At KCIC, her day-to-day role is to manage client relationships and lead projects to develop and implement claims processing procedures and systems, as well as to perform complex analyses of different types of claims and insurance.Learn More About Michelle
Kathrin Hashemi has partnered with her clients on a variety of matters including litigation management, insurer billing arrangements, claims administration, and asbestos bankruptcy trusts. Much of her work has allowed her the opportunity to have a more holistic understanding of the litigation at hand, while simultaneously being able to solve complex problems for her clients.Learn More About Kathrin