Talc and Cancer: The Science and the Litigation

Written by Connie O'Mara


The panel, consisting of Ben Blume (Kennedys CMK), Katie Matison (Lane Powell) and Dr. Annette B. Santamaria (Rimkus Consulting) provided context and a critical review of the $300+ million in recent verdicts in cosmetic talc cases, demonstrating the evolution of these cases in a toxic tort continuum related to asbestos litigation. We all know the evolution of asbestos litigation and we now have the impact of both the liability and coverage legacy of that litigation. It influences results surrounding other toxic tort claims.  This panel pointed out parallels between asbestos and talc litigation and warned of even more problematic exposures for insurance companies faced with potential coverage of talc claims if we do not fail to highlight how they are different from asbestos claims.  Whether we decry plaintiffs’ lawyers’ greed for headlines and jaw-dropping verdicts, or forum shopping to get to Madison County, Illinois, (the “judicial hell-hole” that developed along the asbestos super –highway) or whether we are inured to frequent theories that a given substance is the “next asbestos”, talc claims have the potential to present substantial numbers of claims, defense expenses, and verdicts. The panel discussed key areas of dispute.

The core question, of course, Is whether talc caused the plaintiff’s injuries.  Dr. Santamaria went over the science and epidemiology that currently exist with regard to cosmetic talc cases and ovarian cancer (as distinguished from talc cases predicated on exposure to asbestos contaminated talc causing other types of cancer).  Clearly, there is debate, but the verdict seems to depend on who hears the evidence. Contrast the jury verdicts in Madison County with a decision last year in New Jersey (Carl v. Johnson & Johnson, No. ATL-L-6546-14, 2016 WL 4580145 (N.J. Super. Ct. Law Div., Atl. Cty., Sept. 2, 2016) where Judge Nelson C. Johnson excluded the plaintiffs’ experts.  After reviewing the scientific literature, he did not find the opinions that supported the theory that the talc caused ovarian cancer to be “sufficiently reliable as being based on a sound, adequately-founded scientific methodology”.  Many juries, however, when faced with similar evidence on causation have not only awarded damages, but substantial punitive damages to punish talc defendants for their disregard of public safety.

The Panel also reviewed the other critical moving part in cosmetic talc litigation nationwide --- the question of personal jurisdiction that surrounds the ability of plaintiffs’ law firms to file cases for out-of-state plaintiffs where they believe they will get the best result.  The recent U.S. Supreme Court Decision in Bristol-Myers-Squibb (Bristol-Myers Squibb Co. v. Superior Court, No. 16-466 (U.S. June 19, 2017), has caused a flurry of motions and arguments on appeal that may cause plaintiffs’ firms to spread their talc claims across the nation and promises to prolong the expense and duration of the litigation.

Further, the panel reviewed the plethora of coverage issues raised by talc claims being presented under various types of policies.  Given the specific etiology of disease causation and current advances in scientific methods of investigation, the challenge for insurers will be to assess what policies are impacted and how.  This will, no doubt, involve extensive use of expert evaluation and the ability to articulate when an injury, if any, took place supported by persuasive medical evidence.