Asbestos Gets a Makeover

Reports of the “death” of asbestos litigation in the U.S. continue to be greatly exaggerated. While the number of traditional asbestos claims have been reduced, cases alleging exposure to asbestos-contaminated cosmetic talc products have increased exponentially. Hinging on allegations that asbestos-contaminated talc causes ovarian cancer and mesothelioma, cosmetic talc litigation centers entirely around asbestos. Thanks to the massive influx of cosmetic talc-related claims, asbestos promises to remain the longest running mass tort in U.S. history for years to come.

It is no coincidence that the plaintiffs’ firms that spearheaded asbestos litigation are using the same playbook for cosmetic talc litigation. Across the country, asbestos jurisdictions are notorious for being plaintiff-friendly. These jurisdictions typically operate under plaintiff-driven case management orders, lessened causation standards, and case law that nearly eliminates plaintiffs’ need to establish any burden of proof other than naming a defendant at the deposition. The striking similarities between cosmetic talc and asbestos raises the question: Is cosmetic talc the new asbestos? The answer is, undoubtedly, “yes.”

In October 2021, Johnson & Johnson (J&J) sought to resolve more than 38,000 talc-related lawsuits by moving its recently formed subsidiary, LTL Management, into bankruptcy. Plaintiffs vigorously fought J&J’s bankruptcy petition, arguing it was an abuse of Chapter 11 and would allow a massively profitable corporation to dodge its liabilities “as a means to delay or prevent cancer victims from having their day in court.” On Feb. 25, 2022, after a multi-day trial, U.S. Bankruptcy Judge Michael Kaplan approved LTL’s bankruptcy petition and issued a preliminary injunction barring the prosecution of talc claims against various entities affiliated with J&J. The plaintiffs’ bar has vowed to appeal.

Judge Kaplan’s decision will unquestionably change the landscape of cosmetic talc litigation. While many questions remain unanswered as to the potential impact of J&J’s bankruptcy, understanding the history of asbestos claims and bankruptcy may help define the future ways in which cosmetic talc claims could potentially evolve. 

Lessons From History

More than 40 years ago, Johns-Manville became the first target in asbestos litigation. In Borel v. Fibreboard Paper Products, (5th Cir 1973), a Texas plaintiff obtained the first products liability verdict against Johns-Manville and various asbestos manufacturers for an asbestos-related illness and subsequent death. In the wake of this landmark decision, plaintiff firms proceeded to strategically target Johns-Manville, the leading manufacturer of asbestos-containing products, and filed thousands of cases against the company. By 1982, Johns-Manville was overwhelmed with asbestos-related liabilities, leaving bankruptcy as its only option.

Johns-Manville’s bankruptcy did not slow down the litigation, however; it only caused plaintiffs to seek new defendants. Plaintiffs’ strategies created a dangerous landscape for defendants—when a company went bankrupt, plaintiffs no longer identified that company’s products as a source of exposure, but rather they found new and deeper pockets with each viable entity added to the litigation.

With each bankruptcy came new defendants and new product identification. Despite nearly every bankrupt entity creating a trust for remaining asbestos liabilities for which plaintiffs could seek compensation post-bankruptcy, the payouts were worth a fraction of the damages sought from viable entities. As a result, viable corporations absorbed the shares of the major players who went bankrupt, creating a domino effect that has continued for decades.

Fast forward to 2022, J&J faces more than 38,000 cosmetic talc-related claims nationwide. J&J has continuously maintained its products are safe, despite the allegations that its baby powder was contaminated with asbestos that caused plaintiffs to develop mesothelioma or ovarian cancer. The company chose to aggressively litigate almost every case to verdict, rarely settling claims. While J&J obtained a number of defense verdicts at the appellate level, the litigation continued to expand. Unfortunately, the number of cases pending against J&J escalated nationwide as plaintiffs’ attorneys utilized junk science and reptilian strategies with impunity to obtain groundbreaking verdicts.

While J&J intends to set aside at least $2 billion to settle its current cosmetic talc claims, plaintiffs’ attorneys will likely follow the same playbook used in asbestos litigation for decades—identify new viable defendants with deep pockets. It is only a matter of time before the same manufacturers, distributors, retailers, and suppliers that were already sued in talc-based mesothelioma cases become defendants in ovarian cancer cases—along with a larger pool of viable entities that have yet to be sued on either front.

The Battleground of Cosmetic Talc Claims

Plaintiffs’ attorneys strategically developed cosmetic talc litigation despite the lack of scientific evidence by targeting plaintiff-friendly jurisdictions with lax evidentiary standards. Unlike the federal courts and 35 state courts, Missouri has not adopted Daubert or Frye to govern the admission of expert testimony. Instead, it only requires that the scientific evidence “be of a type reasonably relied upon by experts in the field,” creating a landscape for plaintiffs to utilize junk science to establish causation for ovarian cancer claims.

Initially resulting in a $4.69 billion verdict in 2018, later reduced to $2.1 billion, Ingham v. Johnson & Johnson, et. al . (Mo. Ct. App. 2020), cert. denied, (2021), became the first case to abandon the theory that talc itself was a carcinogen, and instead pointed to asbestos-contaminated talc as the cause of plaintiffs’ disease. It is no coincidence that The Lanier Firm, a national plaintiffs’ asbestos firm, strategically brought Ingham in Missouri state court to establish causation.

At trial, plaintiffs’ experts proffered testimony relating to two theories of causation: inhalation and perennial use. Plaintiffs’ causation experts were two of the leading plaintiff experts in traditional asbestos litigation. To demonstrate exposure from the inhalation theory, one expert simulated the application of talcum powder which showed “dust” in the “breathing zone” of the product’s user. To demonstrate exposure with regard to perennial use, or use of talcum powder around the genital region, another expert testified that asbestos could be internally absorbed into the body during application. Despite J&J’s assertion that plaintiffs’ expert opinions were unsupported, unreliable, and added up to nothing more than junk science, the trial and appellate court found the opinions reliable.

When the Supreme Court denied J&J’s petition for certiorari in late 2021, Ingham became the first ovarian cancer case to survive the appeals process. More importantly, it became the first case to establish causation between asbestos-contaminated talc and ovarian cancer, utilizing both the inhalation and perennial use theories. This decision will undoubtedly open the door for plaintiffs to bring ovarian cancer cases in state courts, especially asbestos jurisdictions, nationwide.

Ingham, however, is not plaintiffs’ only win on the causation front. While some ovarian cancer cases like Ingham have remained in state courts, J&J leveraged its home state contacts to help centralize all ovarian cancer claims brought against it via a Federal Multi-District Litigation (MDL) in New Jersey, where more than 37,000 claims were pending against the pharmaceutical giant. On April 27, 2020, Judge Freda Wolfson allowed ovarian cancer cases in the J&J MDL to proceed to trial when she found plaintiffs’ causation experts admissible with limitations. However, Judge Wolfson excluded plaintiffs’ causation experts from testifying as to the inhalation theory of causation with regard to ovarian cancer, reasoning that the research and studies relied upon were too limited, thus posing issues of reliability.

The fact that Judge Wolfson’s ruling came almost two years after Ingham went to verdict makes it difficult to ignore Missouri’s disturbingly low evidentiary standards. This became the second major decision establishing a causal link between asbestos-contaminated talc and ovarian cancer.

In 2021, however, J&J and Imerys obtained a victory on the causation front when the first cosmetic talc-based mesothelioma verdict was overturned in New Jersey. In Lanzo v. Cyprus Amax et al., a New Jersey state jury slammed J&J and its talc supplier Imerys with a $117 million verdict. The appellate court, however, found that the trial court erred in allowing plaintiffs’ causation opinions, finding them unreliable and thus inadmissible. New Jersey’s strict evidentiary standards were key in overturning the decision. The appellate court’s decision is undoubtedly a major loss for plaintiffs as talc litigation continues to increase nationwide.

Yet, between Ingham and Judge Wolfson’s opinion, plaintiffs’ causation victories have opened the door for ovarian cancer claims to be brought in asbestos jurisdictions and other plaintiff-friendly hot spots like Missouri. While plaintiffs’ attorneys have strategically been shifting cosmetic talc claims entirely within the purview of asbestos litigation, causation remains one of the most critical and contested issues. As the litigation evolves, forum shopping will remain a critical issue. Defense counsel must try to remove cases for improper venue, diversity jurisdiction, personal jurisdiction and forum non conveniens, where applicable, to avoid plaintiffs’ improper tactics.

Defense Strategies

In light of the recent causation decisions and J&J’s bankruptcy, ovarian cancer lawsuits will start to include an expanded pool of defendants. While these claims have mostly been limited to J&J, Imerys, and affiliated retailers, J&J and Imerys are now both considered bankrupt.

As the litigation continues to expand on all fronts, understanding the history of asbestos litigation will be crucial in developing the most successful defense. While we are seeing many of the same plaintiff and defense firms that have historically been involved in traditional asbestos litigation, there are stark differences between asbestos and talc litigation that must be considered to properly defend these cases.

If traditional asbestos litigation has taught us anything over the last four decades, it is that the deposition is one of the most fundamental aspects of a case. Given that most plaintiffs in both cosmetic talc and asbestos matters are terminally ill, they typically are not living at the time of trial—meaning the deposition presents the only opportunity to develop certain defenses and establish alternative sources of exposure to diminish causation. Therefore, approaching the deposition from a trial perspective is key to obtaining the most favorable outcome for your client. By building the proper foundation prior to the deposition, including conducting extensive investigation, establishing sources of alternative exposures, and determining viable defenses, defense counsel places the client in the best possible position.

While trial is the last resort for many defendants, a prepared, trial-ready defendant is typically the one that plaintiffs’ attorneys fear the most. This places the client in the best position to obtain more favorable settlements. As the litigation continues to progress, defense counsel must think outside the box and develop innovative strategies to minimize the impact of these claims.

For many cosmetic companies and insurance carriers, cosmetic talc litigation paves a more dangerous path than traditional asbestos ever did. The litigation involves younger, female plaintiffs who allege exposure from daily application of personal care products commonly used in virtually every household. These cases involve new products, new defendants, and the likelihood for large verdicts and explosive punitive damages awards.

Many major manufacturers of talc-based cosmetic products only began removing talc as an ingredient from their products in 2020. Unfortunately, these manufacturers are not absolved from the mounting litigation. Rather, they only set an end date as to when such claims will cease. Conversely, not all manufacturers have followed suit. As asbestos-related diseases are subject to latency periods of up to 40 years, and talc remains an ingredient in cosmetic and personal care products currently sold today, there is simply no end in sight.