Asbestos, a naturally occurring mineral, has been the subject of mass tort litigation for several decades. While recent trends show a steady reduction in the number of traditional asbestos claims, influx of claims alleging exposure to asbestos-contaminated talc promises to keep asbestos “the longest-running mass tort litigation in the United States.”[1]
Historical Perspective
Shortly after the American Law Institute expanded the parameters of strict product liability in its Restatement (Second of Torts) in 1965, the first modern-day asbestos lawsuit was filed.[2] In approximately 1967, Texas insulator Claude Tomplait sued eleven manufacturers of insulation products.[3] Soon after, a co-worker of Tomplait, Clarence Borel, obtained the first product liability verdict against manufacturers of insulation products for an asbestos-related illness and subsequent death.[4] The Borel decision paved the way for asbestos lawsuits throughout the United States.
The influx of asbestos personal injury claims caused many manufacturers of insulation products to file for bankruptcy. In approximately 1982, one of the principal insulation manufacturers and suppliers, Johns-Manville, filed for Chapter 11 bankruptcy.[5] Other manufacturers followed suit, unable to support the heavy burden of increasing asbestos lawsuits.[6] The bankruptcy wave of the 1980s and 1990s removed most of the traditional asbestos defendants, including suppliers of raw asbestos and manufacturers of insulation products, from the tort system.[7]
Plaintiffs then began shifting their focus toward more peripheral defendants.[8] For example, plaintiffs’ lawyers began suing defendants who used asbestos-containing materials on their premises or used asbestos-containing components in connection with their products, such as automobile manufacturers (brakes and clutches).[9] Asbestos litigation has candidly been described as an “endless search for a solvent bystander.”[10] The litigation continues to expand to capture additional defendants in a variety of industries.
Cosmetic Talc
As more companies file for bankruptcy and plaintiffs’ lawyers search for additional sources of recovery, plaintiffs’ lawyers have shifted their focus to manufacturers of cosmetic products incorporating talc, such as body powders and makeup. Talc is a naturally occurring mineral commonly used in personal care products due to its ability to absorb moisture.[11] Plaintiffs allege that talc is often contaminated with asbestos, and thus causes asbestos-related illness.[12] Talc claims present a unique risk for defendants as compared to traditional asbestos claims: the plaintiffs are often younger females, these cases involve routine application of commonly used personal care products in the privacy of one’s home, and there are many more potential plaintiffs.
Despite several defense verdicts, plaintiff verdicts have been substantial. For example, in March 2023, a South Carolina jury awarded $29 million against a former talc supplier.[13] In July 2023, a California Jury awarded $18.8 million against a manufacturer of baby powder.[14] Most shockingly, in June 2021, the U.S. Supreme Court affirmed a $2 billion verdict against a manufacturer of baby powder in a case involving 22 people in different states.[15]
Future
Due to the long latency of asbestos-related diseases, and the fact that talc remains an active ingredient many cosmetic and personal care products today, these lawsuits are likely to continue for years to come. In 2022, there was a 29% increase in asbestos filings including talc exposure allegations compared to 2021.[16] As talc litigation is continuing to develop, this upward trend is likely to continue.
[1] Edward Sherman, The Evolution of Asbestos Litigation: Enduring Issues and the Administration of Trusts, 88 Tul. L. Rev. 1021, 1028 (June, 2014); Asbestos Litigation: 2022 Year in Review, KCIC Industry Report https://www.kcic.com/media/2253/kcic_asbestos2022report.pdf
[2] Sherman, supra note 1, at 1028.
[3] Paul Riehle, Michael Fox and Christopher Zand, Products Liability for Third Party Replacement or Connected Parts: Changing Tides from the West, 44 U.S.F. L. Rev. 33, 36 (Summer, 2009).
[4] Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1086 (5th Cir. 1973).
[5] Sherman, supra note 1, at 1025.
[6] Riehle, Fox and Zand, supra note 3, at 37-38.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Kimberly Winbush, Products Liability: Talcum Powder Cases, 78 A.L.R. 7th 3.
[12] Id.
[13] Brendan Pierson, Talc supplier hit with $29 mln verdict in South Carolina trial, Reuters News (March 6, 2023).
[14] 38-12 Mealey’s Litig. Rep. Asb. 1 (2023).
[15] Johnson & Johnson: High Court Won’t Hear Appeal on $2.1BB Verdict, Class Action Reporter (July 7, 2021); Ingham v. Johnson & Johnson, 2020 Mo. LEXIS 410.
[16] Asbestos Litigation: 2022 Year in Review, KCIC Industry Report https://www.kcic.com/media/2253/kcic_asbestos2022report.pdf
