A Toxic Tale of Exposure

How often have you thought about the ingredients of the products you use, such as makeup, perfume, or even deodorant that is absorbed into your skin on a daily basis?

Most people associate asbestos claims of exposure with work environments or while performing home remodeling, shadetree mechanic work, or handling insulation on pipes or heavy equipment, such as boilers. Fewer people associate asbestos with baby powder, talcum powder, or makeup, or that the use of these products could be dangerous or fatally toxic.

CLM member Kasia Nowak, who is a partner at Foley Mansfield in Chicago, certainly understands this. She walks us through one of her most-memorable claims, which involved claims of asbestos exposure.

To set the stage, the plaintiff was an elder mesothelioma patient who alleged that the use of talcum powder products throughout her life caused her disease. Her attorneys claimed that the talcum powder products, which had been manufactured by various defendants, either contained asbestos or were contaminated with asbestos. These products included daily hygiene powder, makeup, and baby powder that the plaintiff either directly used on her own body or applied to her children. Moreover, the plaintiff asserted in her complaint that the defendants knew or should have known that their products were dangerous to her health and that they failed to warn her.

Rawal: What makes asbestos cases so unique?

Nowak: Asbestos-related diseases, including mesothelioma, generally have long latency periods—20 to 40 years or more. Therefore, symptoms from an asbestos-related disease appear long after exposure. Someone who has been diagnosed with mesothelioma in 2022 could have been exposed as far back as the 1980s or even 1990s.

Interestingly, not everyone who works with or around asbestos will become ill.  Asbestosis, lung cancer, and mesothelioma are the three diseases associated with asbestos exposure. Some people may develop asbestosis, the least harmful form, while others may suffer from mesothelioma, which has fatal consequences and is not curable.

Rawal: How do you investigate the allegations and verify facts that took place decades ago?

Nowak: Investigations typically start with the careful cross-examination of the plaintiff regarding her family history. In this case, it turned out that the plaintiff’s father performed home remodeling and removed asbestos roofing in her presence. She also disclosed that her husband worked in a factory where insulators often replaced insulation on pipes around him. She then took it upon herself to wash his dirty and dusty uniform. Before placing it in a laundry machine, she would shake out the dust before putting it in the washing machine. She did this every day, so when she shook out the uniform, it created dust that she breathed. This dust likely contained asbestos fibers from the insulation her husband was around.

I was then able to track down the plaintiff’s family members who she claimed she lived with during her alleged talcum powder use. It was interesting to find that the plaintiff’s sisters, who she shared a bathroom and bedroom, stated that they had no recollection of the plaintiff ever using any type of talcum powder.

Rawal: What emotional aspects come attached to these types of claims?

Nowak: Most of the time these plaintiffs are older, in poor health, and can often pass away during the pendency of the case. Depositions can take several days because of the high number of defendants named in these cases. This particular deposition took seven days. Therefore, it is important to be diligent in questioning about the allegations made against a defendant and to develop defenses on other potential exposures and sources.

Rawal: How do you determine alternative exposures?

Nowak: In this case, the plaintiff alleged that she only used talcum powder products that contained asbestos and was not exposed in any other way. However, I was able to elicit testimony showing otherwise. Some examples include developing potential exposures from the plaintiff’s father’s work, her husband’s work, her own work, and even potential exposures from schools she attended where construction had taken place.

Additionally, the plaintiff’s medical records showed that 20 years prior to her mesothelioma diagnosis, the plaintiff was diagnosed with ovarian cancer and underwent significant high-dose radiation therapy. This included the placement of radiation rods near her lungs. Through a diligent medical investigation, I was able to track down her medical records from 20 years prior and, indeed, they confirmed the significant amount of radiation that the plaintiff received. 

Even though mesothelioma is commonly linked to asbestos exposure, there is increasing support through medical studies that suggest that radiation exposure is also causative of mesothelioma. Ultimately, this case was settled prior to trial at a good result for both sides.

Rawal: How do you overcome the big bad corporate company perspective?

Nowak: The truth is that many corporations implement stringent safety protocols to protect their employees while at work, and many manufacturers have safety testing in place to test products. However, one must consider the limited information known in any given time period.

For instance, OSHA regulations regarding asbestos were not implemented until 1972. Many companies relied on the suppliers of materials they used, and those suppliers may have also had limited information. Each case is different, so it is important to humanize the defendant companies through the individuals who were in charge and the information they had at the time.

Rawal: Have you, personally, changed any daily hygiene habits or stopped using certain personal products since defending asbestos cases?

Nowak: Short answer is no. Certainly, the products sold today are not the same composition as those that were sold in the 1980s to 1990s. Additionally, the U.S. has been a leader in banning the use of asbestos as early as the 1970s, whereas the European Union only began placing any type of restrictions on asbestos as late as 1991, when it banned the use of amosite asbestos. However, it was not until 1999 that the European Union banned the less-toxic form of asbestos (Chrysotile).