Imerys Talc America, Inc. is asbestos litigation’s most recent casualty, joining the long list of companies bullied into bankruptcy by the powerful asbestos plaintiffs’ bar. On February 13, 2019, Imerys filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code in the District of Delaware. Imerys Talc Vermont, Inc. and Imerys Talc Canada, Inc. simultaneously filed similar petitions, and the three entities seek consolidation for joint administration. The filing invokes an automatic stay of all litigation, including the thousands of lawsuits pending nationwide alleging asbestos contamination of consumer cosmetic talc.
Imerys’ decision to file is by no means a concession of fault—the “science” supporting these claims is questionable at best and inconsistent with all non-litigation science. Instead, it is merely a risk management reality utilized by dozens of former asbestos defendants, resulting from the inevitable inequities existing in asbestos litigation.
In recent years, the plaintiffs’ bar has heavily targeted Imerys due to its role as a supplier of cosmetic talc used in personal care powder products. Initially, plaintiffs alleged a causal link between talc and ovarian cancer. Following an 11-0 defense verdict in March 2017, however, the plaintiffs’ litigation strategy shifted. Relying upon methodology developed solely for litigation, plaintiffs’ experts began making blanket assertions of “asbestos contamination” of cosmetic talc (despite the dearth of scientific proof outside of litigation). Blurring the geological distinctions between talc and asbestos fueled the crusade against the personal care products industry. Cosmetic product manufacturers and suppliers, like Imerys, have been named as defendants in thousands of lawsuits.
Although the tale of the lone plaintiff versus the global corporation is a media favorite (especially following large verdicts), what many do not realize is that this is not a classic David versus Goliath narrative. Imerys identified the top 30 plaintiffs’ law firms representing cosmetic talc plaintiffs, which reads like a lineup of the nations’ most notorious asbestos attorneys. Cosmetic talc defendants are across the "v." from the ring leaders of asbestos litigation. Since inception of asbestos litigation (“the longest running mass tort in U.S. history”), law firms such as Belluck & Fox, Motley Rice, Simon Greenstone, Waters & Kraus, Weitz & Luxenberg, and their colleagues have been paid approximately $20 billion dollars in fees—40% of the money intended for injured plaintiffs.
Anyone remotely familiar with asbestos litigation should realize powder defendants do not hold the power. Unlike traditional products liability litigation where the plaintiff bears the burden of proving causation, the cosmetic talc plaintiffs are taking advantage of the looser standards traditionally utilized in asbestos litigation. They seek (and are often afforded) the conclusion-driven inference that their talc products were contaminated with asbestos, often with nothing more than a diagnosis of an asbestos-related ailment.
Personal care product defendants are finding themselves in asbestos courtrooms across the country—despite the undisputed fact that none of these companies ever utilized asbestos as a component of any personal care product formula. Plaintiffs and their experts are relying upon testing methodology developed solely for this litigation, which is inconsistent with any methodology generally recognized by the scientific community—but often still creating an issue of fact for a jury. In turn, viable companies are being forced to prove a negative—that the talc used in their products was not “contaminated” with asbestos.
As evidenced by its trial record, Imerys did not go out without a fight. Since 2016, Imerys has been to verdict 12 times, resulting in 4 defense verdicts, 2 mistrials, and 6 verdicts for plaintiffs. Most recently, Imerys obtained a defense verdict in October 2018 in New Jersey. Yet, with thousands of lawsuits looming and the powerful asbestos bar at the helm, bankruptcy is merely a matter of risk management—sadly.
ABOUT THE AUTHOR
Elizabeth Kelly is an associate in the New York office of Hawkins Parnell & Young, LLP. She focuses her practice on defending manufacturers, distributors, premises owners, and their insurers involved in product liability, toxic tort, environmental, and general liability litigation.