For decades, talc – a mineral found in various industrial and cosmetic products – has been the subject of mass tort litigation. Industrial talc, which is used in rubber, plastics, and ceramics, has been widely alleged to be contaminated with asbestos, causing illnesses such as mesothelioma, lung cancer, and asbestosis (a lung disease caused by asbestos inhalation). In recent years, cosmetic products containing talc (and talcum powder) have also become the center of litigation, with plaintiffs alleging the products cause mesothelioma and ovarian cancer. Unlike lawsuits against industrial talc manufacturers, claims against cosmetic talc products have not focused on asbestos litigation. However, some recent cases have suggested an evolving strategy with regard to cosmetic talc products liability litigation with a newfound emphasis on asbestos-related illnesses. If deemed to be a successful plaintiff theory, claims of asbestos contamination in cosmetic talc products may become the new wave of mass tort litigation.
A History of Talc Litigation
Talc is often found in industrial products and typically used in the manufacturing of end-use products such as ceramic tiles, clay, pottery, rubber sealants, and plastics. Asbestos, a known carcinogen, is often found in close proximity in the earth to talc. Since the 1970s, potential asbestos contamination in talc has been a known concern. When products laced with asbestos are released into the air, the tiny fibers are inhaled into the lungs. These fibers can eventually manifest into mesothelioma, a type of cancer which affects the lining of the lungs, abdomen, and heart. Even though asbestos contamination in industrial talc products was considered to be the main cause of mesothelioma, by 1993, the U.S. National Toxicology Program deemed talc untainted by asbestos a carcinogen as well.
Employees who manufactured industrial talc products and were exposed to high levels of asbestos contamination have frequently been named plaintiffs in litigation for the past decade while Vanderbuilt Minerals and Imerys Talc America, suppliers of industrial talc continue to be named as defendants.
In 2006, the first mesothelioma lawsuit was filed in New Jersey by the operator of a pottery studio who had been exposed to Vanderbuilt’s talc product to make pottery glazes. The plaintiff subsequently died from mesothelioma and his widow was awarded $3.35 million. In 2012, a New York jury found Vanderbuilt liable for the mesothelioma and eventual death of a man who had been exposed to industrial talc while working at a ceramics company. The decedent’s family was awarded $10.55 million.
Unlike industrial talc, cosmetic talc litigation is relatively new and focuses on different causes and injuries, namely ovarian cancer. Johnson & Johnson has been named in over 5,500 lawsuits alleging that its Shower-to-Shower and Johnson’s Baby Powder products cause ovarian cancer. In 2016, Johnson & Johnson and other defendants lost three lawsuits in St. Louis, Missouri state court, with damages awards totaling $50 million, $70 million, and $72 million to plaintiffs that alleged they developed ovarian cancer from exposure to the company’s Baby Powder products.
According to the National Institute of Health, there are 22,280 new ovarian diagnoses and 14,240 deaths from the disease each year in the United States. In light of the fact that these diagnoses are seven times more than the annual mesothelioma statistics, coupled with the prevalence and household popularity of cosmetic products containing talc, the litigation surrounding talc and ovarian cancer have the potential to substantially grow. However, the outcome is dependent upon finding a causal connection between talc and ovarian cancer, which has not always been directly established. Two New Jersey lawsuits against Imerys Talc and Johnson & Johnson were dismissed after the defendants successfully moved to preclude plaintiffs’ expert testimony on the basis that the opinions were based on inadequate science.
Over the last five decades, nearly 40 peer-reviewed publications have studied the potential link between talc and ovarian cancer, with 22 out of 36 studies finding a connection between the two. Despite published scientific literature dating back to the 1960s suggesting a possible link between talc powders and ovarian cancers, the studies have not conclusively established the connection or identified potential risk factors. Thus, while there is potential for ovarian cancer claims, until a more widely accepted scientific basis is established, a favorable outcome for the plaintiffs is not always guaranteed.
Asbestos Contamination in Cosmetic Talc Products
With the viability of talc-related ovarian cancer claims still unclear, plaintiffs have begun to explore a new approach borrowed from the industrial talc industry which alleges that cosmetic talc contains asbestos. While a limited exploratory study conducted by the U.S. Food & Drug Administration in 2010 found that the talc cosmetic products it analyzed did not contain traces of asbestos, additional studies have rebutted this finding. For example, one 2014 study had found that a specific brand of talcum powder contained identifiable asbestos fibers which could potentially be released in the air and inhaled by the consumer. The study found that the asbestos fibers from the same product were present in the lungs and lymph node tissues of a woman who used the brand and later died from mesothelioma.
In 2015, a Los Angeles jury awarded $13 million in damages to a plaintiff who alleged her mesothelioma was caused by asbestos-contaminated talcum powder sold by Colgate-Palmolive. In 2017, the same company settled with a Pennsylvania woman who alleged she developed mesothelioma after using Colgate-Palmolive’s Cashmere Bouquet talcum powder products for more than 20 years. The lawsuit alleged that the company failed to warn her of the risks associated with the inhalation or ingestion of asbestos dust in body powders. The settlement amount was undisclosed to the public. According to filings with the U.S. Securities and Exchange Commission, Colgate-Palmolive faces over 170 claims that its products are contaminated with asbestos, and 43 cases this year have been resolved.
Most recently, last month, a New Jersey jury awarded a man $117 million in damages after finding that his cancer was linked to long-term use of Johnson & Johnson Baby Powder. At trial, plaintiffs claimed that the company knew since the 1970s that the talc contained in its products was contaminated with asbestos during the mining process. The timing of this verdict is critical, as a number of similar cases are scheduled to go to trial throughout the country.
Cosmetic talc asbestos contamination lawsuits present an enormous risk to defendant companies (and the potential of a much greater reward to plaintiffs) than the ovarian cancer cases. The scientific studies establishing asbestos as a carcinogen are much stronger than the ovarian cancer research, which is still developing. And unlike industrial talc litigation, which is relatively limited in plaintiff class size to employees and those exposed to mining and manufacturing, cosmetic talc is found in a number of household products that are used by a greater portion of the population. Therefore, it is very likely that cosmetic talc asbestos contamination lawsuits could become a huge area of litigation in the upcoming years.