Trial Magazine

While cosmetic talc litigation has been in the news recently, talc manufacturers could have anticipated this litigation as far back as the 1960s. Years ago, trial attorneys raised concerns that asbestos-contaminated industrial grade talc used in manufacturing rubber, paint, drywall, and roofing materials led to frequent and high levels of occupational exposure. While a few lawsuits were filed by people claiming injury from exposure to cosmetic talc products sourced from the same mines as these industrial products,¹ the cosmetics industry largely concealed evidence that talc used in its products contains asbestos and other toxic substances.² And eventually, even the number of industrial talc cases slowed to a trickle, due to a combination of the latency of the effects, a concerted ruthless defense strategy, and the suppression of testing evidence.

Throughout the last decade, talc litigation has reignited—lawyers representing those injured by talc continue to methodically uncover evidence that had been suppressed for decades, which proves that talc is often contaminated with asbestos and other toxic substances.³ Based on this evidence, cosmetic talc users began bringing claims that talc—largely in baby and body talc powders—had caused their mesothelioma or ovarian cancer.

Despite the evidence of the dangers of talc, industry defendants use aggressive tactics to vigorously fight talc claims. Expect defendants to attack you, your client, and your qualified experts to distract the jury from the merits of a case. However, you can show juries the truth revealed by the defendants’ documents and corporate witnesses.⁴ In cosmetic talc claims, it’s essential to carefully select cases, understand the available evidence, and anticipate the roadblocks ahead.

Exposure Pathways

There are generally two means of exposure to talc that can cause disease: inhalation and perineal.⁵

Inhalation. Inhalation is the typical exposure route for pleural and peritoneal mesothelioma (fatal cancers of the lining of the lung and abdomen, respectively) and is not subject to credible challenge by defendants.⁶ Airborne asbestos fibers released from any product can cause mesothelioma, which is a signature disease for asbestos exposure.⁷ Asbestos-containing talc is a known carcinogen that causes mesothelioma.⁸

Although a mesothelioma case cannot be considered spontaneous when there is a known exposure to asbestos,⁹ defense experts likely will claim that the plaintiff’s mesothelioma was spontaneous, idiopathic, or “naturally-occurring.”¹⁰ Defendants also will present studies that they contend prove their talc does not contain asbestos and cannot cause mesothelioma. By paying attention to the history and science of these studies, this defense evidence can be turned to your advantage.

In several cases, evidence has been admitted that defendants, or their trade group, significantly influenced these studies and conclusions.¹¹ Moreover, careful examination of these studies’ methodologies and poor data readily expose their unreliability—they are small cohort studies or studies that do not adequately account for the latency of disease.

If you represent a client diagnosed with ovarian cancer, expect defendants to argue that inhaled talc and its contaminants do not reach the ovaries. Be mindful of a recent Daubert decision out of the District of New Jersey disallowing expert testimony that inhalation exposure causes ovarian cancer.¹² But notwithstanding this decision, solid evidence exists that inhalation of asbestos (even at levels found in consumer body powders) can cause ovarian cancer,¹³ and these cases still should be evaluated and pursued whenever possible.

Perineal. According to the International Agency for Research on Cancer (IARC), asbestos is a cause of ovarian cancer,¹⁴ and use of asbestos-contaminated talc is similarly implicated.¹⁵ In addition, there are reliable studies indicating that exposure to talc alone causes ovarian cancer.¹⁶ Under our interpretation of the science, the strongest ovarian cancer cases are those when the plaintiff has been diagnosed with epithelial ovarian cancer, and especially, the subtype high grade serous ovarian cancer.¹⁷

Based on current science, it may be unwise to pursue cases on behalf of women diagnosed with cervical cancer, uterine cancer, and other subtypes of ovarian cancer (such as germ cell or sex-cord stromal cell, among others). When contacted by a potential client, make it a high priority to obtain the relevant pathology reports immediately, because cancer histology type (the subtype of ovarian cancer) is important in the assessment of these cases.

Other exposure pathways. After confirming your client’s diagnosis and means of exposure, review his or her employment, family, and social history to ensure that no other significant asbestos exposure exists. For clients diagnosed with ovarian cancer, it is particularly important to screen out, or at the very least account for, other potential risk factors, such as advanced age (over 70), significant family history, or genetic proclivity (especially BRCA mutations)—even though these vulnerable women would have greatly benefited from adequate warnings.

Be prepared to address specific causation defenses such as genetics, past radiation, or phantom asbestos exposures (exposures not based in fact). In discovery, develop a factual record that will help you overcome causation defenses that are supported by mere speculation only. For example, if your client’s spouse worked in an industry traditionally associated with asbestos exposure but did not work with or near asbestos products, then elicit those facts so the defendants cannot insinuate at trial that your client was exposed to asbestos from his or her spouse’s work clothes.

Overcoming Defenses

Be prepared to confront myriad defense tactics. The aggressiveness of defendants in talc litigation often rivals the worst days of the tobacco wars—attacks on plaintiff attorneys and expert witnesses are far too common.¹⁸ Besides attributing your client’s disease to causes besides talc, including toxic exposures or personal risk factors, expect defendants to use the following strategies.

Moving to exclude your expert testimony. Whether your experts are microscopists, material scientists, pathologists, epidemiologists, or physicians, be prepared to face a Daubert or Frye challenge.¹⁹ Be sure you understand your jurisdiction’s standard for admission of expert testimony.

Defendants’ challenges to experts in mesothelioma cases had limited success earlier on in this litigation,²⁰ and plaintiffs’ experts have successfully testified in courts in numerous states about the asbestos content of talc and its causative role in the plaintiffs’ disease.²¹ And in April, a district court rejected key portions of Johnson & Johnson’s Daubert challenge to the plaintiffs’ experts in the federal talc ovarian cancer multidistrict litigation (MDL).²² That opinion—which finds the plaintiffs’ experts’ testimony about the causal link between talc exposure and ovarian cancer as well as the methodology used to detect asbestos in body powders to be reliable—is strong ammunition to fight expert challenges.²³

In August, a New Jersey appellate court rejected a trial court’s finding that the plaintiffs’ experts’ opinions were unreliable in that state’s consolidated ovarian cancer litigation, in a must-read opinion for practitioners who are interested in learning more about the science supporting the causal link between talc exposure and ovarian cancer.²⁴

The ‘good rock/bad rock’ defense. While some ovarian cancer cases have been won arguing talc alone is responsible,²⁵ the discovery of asbestos testing evidence has become the focus of recent trials. Most cases rise or fall on one simple finding: whether a jury is persuaded that asbestos is in the talcum powder. It should go without saying that lawyers trying these cases need to understand the science behind asbestos formation and detection.

Defendants typically will not challenge the presence of amphibole accessory minerals (such as tremolite) in the talc but will instead argue that they are not asbestiform (a fibrous amphibole often defined as having a 3:1 or greater length-to-width ratio) and therefore not biologically harmful. For example, defendants typically will not seriously challenge that tremolite is in their product, but instead they will call tremolite the “good rock,” as opposed to tremolite-asbestos, the “bad rock.”

Defendants also claim that plaintiffs’ experts are using “junk science,” pointing to certain pictures of asbestos fibers or bundles that plaintiffs’ experts find and calling them cleavage fragments, which is a phrase to designate a non-asbestiform accessory mineral. What exactly is a “cleavage fragment”—as well as its health impact—is heavily disputed. Understand that these pictures often show asbestos bundles, not cleavage fragments. A bundle is a collection of asbestos fibers connected together and is a confirmed finding of asbestos.²⁶

And experts’ opinions confirming the presence of asbestos have been found admissible in courts all over the country. For example, in the ovarian cancer MDL, the judge found transmission electron microscopy (TEM) testing (which uses an extremely sensitive microscope) revealing asbestos in Johnson & Johnson’s Baby Powder to be reliable.²⁷ But despite trial courts routinely finding plaintiffs’ expert opinions admissible, this cleavage fragment argument likely will continue to be defendants’ preferred method of attacking plaintiffs’ testing experts in front of juries.

Also look for proof that talc contains asbestos in the defendants’ historic corporate documents.²⁸ To dull the impact of such evidence, companies often present dozens of “non-detect” (ND) test results written by their consultants or suppliers—but with the proper expert testimony and knowledge of the company documents, these negative tests results can be transformed into evidence for the plaintiff. Push the defendants’ experts and company representatives to admit that these test results use the CTFA J4-1 testing method that is incapable of finding asbestos in quantities smaller than 0.5%,²⁹ meaning billions of fibers of asbestos may still be present in a cosmetic product container.

But even under the defendants’ more stringent TEM testing standard, millions of asbestos fibers may still be present because that testing protocol requires five fibers of the same type of asbestos for a test to result in a positive asbestos finding.³⁰ This stringent testing standard is significantly less sensitive than the heavy-liquid density method³¹ used by the plaintiffs’ experts.

Product identification. As in any toxic tort case, it’s vital that your client can identify the product used and describe how, how often, and when he or she used it. As was intended by cosmetic talc manufacturers, consumers were often loyal to a specific brand of body powder because their mothers used it on them, and they, in turn, used it on their children. Look to family members to corroborate your client’s product identification, and be sure your client is prepared to describe the packaging or other specific characteristics of the particular body powder used.

Your client also should be ready to describe his or her powder use routine at a deposition—the manner and frequency of use, whether the powder was applied above or below the waist, and whether it was applied in the bathroom or bedroom because the defendants will leave no detail unearthed during a discovery deposition. Especially important for talc cases is to discern when your client used which powder product. Different talcs were sourced from different regions depending on the time period, and the talc mines of each region (such as China, Italy, New York, or Vermont) contain varying types and levels of asbestos.

The FDA preemption defense. Even though the FDA has never regulated cosmetic talc, defendants still attempt to defend cases by arguing that the FDA’s failure to require a warning or remove the product from the market demonstrates that the product is safe. Yet internal corporate documents demonstrate that the whole truth was never shared with the FDA. Courts have agreed that the evidence is overwhelming that companies withheld significant information about talc contamination from the FDA for decades and thwarted any aggressive intervention, warranting punitive damages.³² Only recently has the FDA had access to that withheld evidence, and it has now corroborated that evidence with its own testing—finding asbestos in cosmetic talc taken from store shelves.³³

Talc cases require a long-term vision—a compelling liability story is still unfolding in millions of pages of internal corporate documents spanning more than 70 years. No one knows how many people have been, and will be, injured by talc products, but what we do know is that as the evidence is shared in courtrooms across the country, cosmetics companies are finally withdrawing asbestos-containing cosmetic talc powders from the market in North America.³⁴ With continued tenacity and perseverance, those injured by talc will find justice.

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Legal Theories

Potential legal theories will vary from jurisdiction to jurisdiction, but we recommend alleging at least three: design defect, manufacturing defect, and failure to warn.

Failure to warn. Focus on the failure of the cosmetic talc manufacturer to disclose the presence of asbestos and other contaminants in its product and to warn of the risks of cancer.

Design defect. The defective design claim centers on the use of talc found in mines containing a number of contaminants, including asbestos, because cosmetic talc provides no medicinal benefit. The egregiousness of using this talc is even more apparent when you present evidence that cornstarch is a safe, cheap, readily available substitute that studies show customers actually prefer.

Manufacturing defect. A manufacturing defect is also a valid claim because the specifications for talc powder products indicate that the powder should be asbestos-free; therefore, the presence of asbestos violates the defendants’ own manufacturing specifications.

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Christopher M. Placitella is a partner and Dennis M. Geier and Jared M. Placitella are associate attorneys at Cohen, Placitella & Roth in Red Bank, N.J. They can be reached at cplacitella@cprlaw.com, dgeier@cprlaw.com, and jmplacitella@cprlaw.com.

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Notes

1. See, e.g., Yuhas v. EB Mill Supply, No. MID-L-029706-84 (N.J. Super. Ct. Law Div. 1984); Edley v. EB Mill Supply, No. MID-L-075913-86 (N.J. Super. Law Div. 1986); Coker v. Bill Thames Pharmacy Inc., No. D-157,746 (Tex. Dist. Ct. 1997).
2. Scientists first sounded the alarm regarding a causal association between perineal talc use and ovarian cancer in 1971. See W.J. Henderson et al., Talc and Carcinoma of the Ovary and Cervix, 78 J. Obstetrics & Gynaecology Brit. Commonwealth 266 (1971). However, the industry succeeded in sowing doubt in the scientific community. See Triet H. Tran et al., Talc, Asbestos, and Epidemiology: Corporate Influence and Scientific Incognizance, 30 Epidemiology 783 (2019).
3. See Joan Steffen et al., Presence of Asbestos in Consumer Talc Products: Evaluating a “Zero Tolerance” Policy, APHA Conference (2017); Tran et al., supra note 2.
4. See, e.g., Ingham v. Johnson & Johnson, No. 1522-CC10417 (Mo. Cir. Ct. 2018) ($4.69 billion compensatory and punitive verdict for 22 ovarian cancer plaintiffs); Barden v. Brenntag N. Am., No. MID-L-1809-17 (N.J. Super. Law Div. 2017) ($750 million punitive verdict for four mesothelioma plaintiffs).  
5. “Perineal” refers to the application of powder to the genital area.
6. See generally, e.g., Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076 (5th Cir. 1973); Beshada v. Johns-Manville Prods. Corp., 447 A.2d 539 (N.J. 1982). As it relates to talc cases, see Ronald E. Gordon et al., Asbestos in Commercial Cosmetic Talcum Powder as a Cause of Mesothelioma in Women, 20 Int’l J. Occupational & Envtl. Health 318 (2014).
7. See Harvey Checkoway et al., Research Methods in Occupational Epidemiology 248 (2d ed. 2004); see also Kay Teschke et al., Mesothelioma Surveillance to Locate Sources of Exposure to Asbestos, 88 Can. J. Pub. Health 163, 167 (1997).
8. S.H. Lamm & J.A. Starr, Similarities in Lung Cancer and Respiratory Disease Mortality of Vermont and New York State Talc Workers, NIOSH Pub. No. 90-108 Prt II (Proceedings of the VIIth Int’l Pneumoconioses Conf.) 1576–81 (1990); Sharon H. Srebro & Victor L. Roggli, Asbestos-related Disease Associated with Exposure to Asbestiform Tremolite, 26 Am. J. Indus. Med. 809 (1994); A. Andrion et al., Malignant Peritoneal Mesothelioma in 17-Year-Old Boy with Evidence of Previous Exposure to Chrysotile and Tremolite Asbestos, 25 Hum. Pathology 617 (1994); James Ian Phillips & Jill Murray, Malignant Mesothelioma in a Patient with Anthophyllite Asbestos Fibres in the Lungs, 54 Annals Occupational Hygiene 412 (2010); Int’l Agency for Research on Cancer (IARC), IARC Monographs on the Evaluation of Carcinogenic Risks to Humans vol. 100C: Arsenic, Metals, Fibres, and Dusts (2012) [hereinafter IARC Monograph 100C]; Murray M. Finklestein, Malignant Mesothelioma Incidence Among Talc Minders and Millers in New York State, 55 Am. J. Indust. Med. 863 (2012); Jacqueline Moline et al. Mesothelioma Associated with the Use of Cosmetic Talc, 62 J. Occupational & Envtl. Med. 11 (2020); Theresa S. Emory et al., Malignant Mesothelioma Following Repeated Exposures to Cosmetic Talc: A Case Series of 75 Patients, 63 Am. J. Indus. Med. 484 (2020).
9. A. Tossavainen, Asbestos, Asbestosis, and Cancer: The Helsinki Criteria for Diagnosis and Attribution, 23 Scand. J. Work Envtl. Health 311 (1997); Xaver Baur et al., Collegium Ramazzani: Comments on the 2014 Helsinki Consensus Report on Asbestos, 59 Am. J. Indus. Med. 591 (2016); Arnold R. Brody, How Inhaled Asbestos Causes Scarring and Cancer, 14 Current Respiratory Med. Revs. 204 (2018).
10. Defense experts use these terms relatively interchangeably to mean a cancer with no known cause.
11. See, e.g., David Michaels, The Triumph of Doubt: Dark Money and the Science of Deception, 141–56 (2020).
12. In re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Practices & Prods. Litig., No. 3:16-md-2738-FLW-LHG (D.N.J. Apr. 27, 2020) (Doc. No. 13186).
13. Steffen, supra note 3.
14. IARC Monograph 100C; see also Finnish Inst. Occupational Health, Asbestos, Asbestosis, and Cancer: Helsinki Criteria for Diagnosis and Attribution  2014 58–61 (2014).
15. Joan E. Steffen, et al., Serous Ovarian Cancer Caused by Exposure to Asbestos and Fibrous Talc in Cosmetic Talc Powders—A Case Series, 62 J. Occupational & Envtl. Med. 65 (2020).
16. See, e g., Mohamed Kadry Taher et al., Critical Review of the Association Between Perineal Use of Talc Powder and Risk of Ovarian Cancer, 90 Reproductive Toxicology 88 (2019); Wera Berge et al., Genital Use of Talc and Risk of Ovarian Cancer: A Meta-Analysis, 27 Eur. J. Cancer Prevention 248 (2018).
17. Ross Penninkilampi & Guy D. Eslick, Perineal Talc Use and Ovarian Cancer: A Systematic Review and Meta-Analysis, 29 Epidemiology 41 (2018).
18. Bill Wichert, How They Won It: Weil Gotshal Lawyers’ Tough Tactics Sealed J&J Talc Win, Law360 (Oct. 31, 2018) (quoting defense counsel saying they “went hard on what we think is the truth, that this is just … a litigation concocted by plaintiffs’ lawyers”).
19. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). For more on Daubert, see Gary DiMuzio, Fortifying Against Daubert, Trial 18, May 2020.
20. See Brandt v. Bon-Ton Stores Inc., 2020 WL 865276 (Pa. Super. Ct. Feb. 21, 2020). In a 2017 decision in this case, the trial court found that the plaintiff experts had used methods “not generally accepted in the relevant scientific community” and granted the defendants’ motions to preclude the experts’ testimony. See Brandt v. Bon-Ton Stores Inc., 2017 WL 4271039 (Pa. Ct. C.P. Sept. 25, 2017).
21. See Barden v. Brenntag N. Am., No. MID-L-1809-17 (N.J. Super. Law Div. 2017).
22. In re Johnson & Johnson Talcum Powder, No. 3:16-md-2738-FLW-LHG (Doc. No. 13186).
23. Id.
24. Carl v. Johnson & Johnson, 2020 WL 4497263 (N.J. Super. Ct. App. Div. Aug. 5, 2020).
25. See, e.g., Giannecchini v. Johnson & Johnson, No. 1422-CC09012-01 (Mo. Cir. Ct. Oct. 27, 2016).
26. Int’l Org. for Standardization, ISO 22262-1:2012, https://tinyurl.com/yyuulxs2; A.M. Blount, Amphibole Content of Cosmetic and Pharmaceutical Talcs, 94 Envtl. Health Perspectives 225, 230 (1991); D. Egilman et al., Health Effects of Censored Elongated Mineral Particles: A Critical Review, in Detection Limits in Air Quality and Environmental Measurements 192–239 (M. J. Brisson ed., 2019).
27. In re Johnson & Johnson Talcum Powder, No. 3:16-md-2738-FLW-LHG (Doc. No. 13186).
28. Look in corporate documents for confirmation of the use of tremolite, anthophyllite, or chrysotile. The use of the term “chrysotile” always means the mineral is in asbestiform. The defendants will claim that the tremolite and anthophyllite found in their products was not asbestiform.
29. Defendants often use the Cosmetic, Toiletry, and Fragrance Association (CTFA) J4-1 test method. See David Rosner et al., “Nondetected”: The Politics of Measurement of Asbestos in Talc, 1971–1976, 109 Am. J. Pub. Health 969 (July 2019).
30. Johnson & Johnson’s testing method, TM 7024.
31. This is a preparation method that removes most of the talc and leaves behind asbestos, making it easier to find the asbestos in the powder when using an electron microscope. See Blount, supra note 26.
32. See Ingham v. Johnson & Johnson, No. ED107476v (Mo. Ct. App. June 23, 2020) (entering $2.1 billion judgment including punitive damages); Barden v. Brenntag N. Am., No. MID-L-1809-17 (N.J. Super. Law Div., June 29, 2020) (affirming $186 million judgment and award of punitive damages).
33. See U.S. Food & Drug Admin., Baby Powder Manufacturer Voluntarily Recalls Products for Asbestos: FDA Advises Consumers to Stop Using Affected Powders (Oct. 18, 2019), https://tinyurl.com/y3vutq4a; Tiffany Hsu & Roni Caryn Rabin, Johnson & Johnson Recalls Baby Powder over Asbestos Worry, N.Y. Times (updated Nov. 19, 2019), https://tinyurl.com/yytcfr3e.
34. See Tiffany Hsu & Roni Caryn Rabin, Johnson & Johnson to End Talc-Based Baby Powder Sales in North America, N.Y. Times (May 19, 2020), https://tinyurl.com/y7x4eays.