A New Frontier? Talcum Powder Litigation in the United StatesSeptember 2016 – Article
The rendering in 2016 of two jury verdicts in the United States of US$55m and US$72m surely caught the attention of pharmaceutical and cosmetic companies around the world, not just for their enormity – the punitive damages alone against the remaining defendants were US$50m and US$65m, respectively – but also the plaintiffs’ theory of liability. In these cases, the plaintiffs had alleged an entirely novel argument: that their use of talcum powder for hygienic purposes had led to their ovarian cancer.
Traditionally, talc has been used in an extraordinarily wide variety of applications such as filler, coating, pigment, dusting agent as well as extender in products such as plastics, ceramics, paper, roofing, rubber, fertilizers, electric cables/wires, paper, pharmaceuticals and food additives.
In 2011, about 26 percent of the talc consumed in the United States was used in the manufacturing of plastics, mainly as filler. The flat shape of talc particles increases the stiffness of products like polypropylene, vinyl, polyethylene, nylon and polyester, and can also increase the heat resistance of these products and reduce shrinkage.
Talcum powder is made from talc, a naturally occurring mineral comprised mainly of magnesium, silicon, and oxygen. Talc is mined from talc-bearing metamorphic rock. Most of the talc deposits in the United States are located in Appalachian Mountains and in the states of Texas, Vermont, Washington, Idaho, Montana, California, Nevada and New Mexico. There are also significant talc mines in countries such as France, China, India, Finland, Italy and the United Kingdom. Through the process of open cast mining – whereby extraction occurs from the surface of the ground, as opposed to tunneling into the earth – the extracted talc is then sorted and then milled to the required particle size and particle distribution.
Great care is taken during the talc mining process to avoid contamination, especially with asbestos, another naturally occurring mineral that has proved to be extremely resistant to heat. Nevertheless, some talc can be contaminated with a type of asbestos fiber known as tremolite. Because of its fibers’ heat-resistant properties, asbestos has long been used in a variety of industrial applications since the beginning of the 20th century. The carcinogenicity of asbestos has been established, leading to the establishment of Occupational Safety and Health Administration guidelines regarding asbestos in 1971. Prolonged exposure to asbestos may lead to lung cancer and mesothelioma, a cancer of the lining of the lung or the peritoneum, the abdominal cavity.
Thus plaintiffs and defendants have long disputed the causal link between talc and different types of cancer, regardless of whether the talc at issue contains asbestos fibers. However, the American Cancer Society refers to studies of talc miners and millers that suggest an increased risk of lung cancer and other respiratory diseases. The International Agency for Research on Cancer (IARC), part of the World Health Organization, classifies talc that contains asbestos as ‘carcinogenic to humans’. Based on the lack of data from human studies and on limited data in laboratory animal studies, IARC classifies inhaled talc not containing asbestos as ‘not classifiable as to carcinogenicity in humans’. The US National Toxicology Program, formed from parts of several different government agencies such as the National Institutes of Health, the Centers for Disease Control and Prevention and the Food and Drug Administration, has not fully reviewed talc (with or without asbestos) as a possible carcinogen.
Finely ground talc that is used for cosmetic purposes and as the powder base of many consumer products generally does not contain asbestos. The tiny platelets of talc powder readily adhere to the skin but can be washed off easily. Talc’s softness allows it to be applied and removed without causing skin abrasion. Talc also has the ability to absorb oils and perspiration produced by human skin, making it an important ingredient in many antiperspirants. Many plaintiffs used the powder on their inner thighs to prevent chafing, on their feminine products or underwear, and on their perineum to stay ‘fresh’ and dry.
In 2013, a plaintiff from New Jersey alleged that he contracted mesothelioma from inhaling talcum powder that remained on the work clothes of his father who was employed at a talcum powder processing facility. At the conclusion of trial, the jury determined that the primary talc supplier of the consumer cosmetic products failed to warn the plaintiff of the health hazards of asbestos in its talc and that the failure to warn caused his injury. The jury awarded the plaintiff US$1.6m in compensatory damages, US$1.4m for pain and suffering and US$200,000 to the plaintiff’s wife for loss of consortium. These amounts were affirmed on appeal.
In 2015, a California plaintiff claimed to have inhaled asbestos-contaminated talc through her use of cosmetic body powder and baby powder in the 1960s and 1970s. Among others, the plaintiff’s experts included a geologist, microscopist, pathologist, and cell biologist. Defense experts included a geologist, microscopist, mineralogist, mining engineer and pathologist. After deliberating for just two hours, the Los Angeles jury awarded the plaintiffs US$13m in damages, US$1.4m for loss of consortium and over US$600,000 in economic damages. The jury found in favor of the plaintiff in all 21 verdict questions encompassing five claims of injury: (1) consumer expectations, (2) risk-benefit, (3) manufacturing defect, (4) failure to warn and (5) negligence. The jury also found that the defendant body powder manufacturer acted with malice, but the case settled prior to the punitive damages phase.
In June 2016, another Los Angeles, California jury rendered a verdict in favor of the defendant talcum product manufacturer and its supplier. In that case, the plaintiff alleged that she developed peritoneal and pleural mesothelioma as a result of exposure to the asbestos-containing talc product that her mother used on her from birth and that she continued to use until she became a teenager. The plaintiff further alleged that the talc used to manufacture the product contained up to 20 percent asbestos contaminant during her period of exposure. The defendants both argued at trial that their product was not contaminated with asbestos and that the plaintiff’s mesothelioma was idiopathic, meaning that it was spontaneous, which the jury accepted.
The new type of talc litigation now focuses on the plaintiffs’ theory that talcum powder might cause cancer in the ovaries if the powder particles (applied to the genital area or on sanitary napkins, diaphragms, or condoms) were to travel through the vagina, uterus, and fallopian tubes to the ovary. According to the American Cancer Society, many studies have looked at the possible link between talcum powder and cancer of the ovary, with mixed findings, while many case control studies have found a small increase in risk. On limited evidence from human studies of a link to ovarian cancer, IARC classifies the perineal (genital) use of talc-based body powder as ‘possibly carcinogenic to humans’.
Therefore, the plaintiffs argue, any company putting a talc-based powder into the stream of commerce has the duty to warn women of link between ovarian cancer and the use of talc-based powder on cosmetic products that she may have used over the course of her lifetime.
The first reported case of a plaintiff alleging ovarian cancer from her hygienic use of talcum powder was in 2013 in the state of South Dakota. In that case, the plaintiff alleged that she used talcum-based baby powder and talc powder to ‘dust’ her perineum for feminine hygiene purposes for about 30 years. Her expert testified that talc probably was a contributing factor in 10,000 cases of ovarian cancer each year. In this federal court case, the jury found that the woman’s use of talcum products contributed to her ovarian cancer, but returned a defense verdict. Specifically, the jury found in favor of the defendants on the claims for strict liability and failure to warn and in favor of the plaintiff on the claim of negligence, but interestingly, did not award any damages to the plaintiff.
The first jury that awarded damages for claims linking talc to ovarian cancer occurred in St Louis, Missouri in 2016. At her deposition, the plaintiff claimed that she used baby powder and talc powder on her underwear for more than 35 years before being diagnosed with ovarian cancer in 2013.
She passed away in late 2015, shortly before the trial commenced. After a three-week trial in February of 2016, the jury deliberated for only four hours before finding the talc powder manufacturer liable for fraud, negligence and conspiracy. The verdict included US$10m in compensatory damages and US$62m in punitive damages, more than the plaintiff’s lawyers had recommended.
Several months later, also in Missouri, a jury awarded a 62-year-old plaintiff US$55m (including US$50m in punitive damages) to a woman who claimed to have used talc-based powder products on her genitals for nearly 40 years. Following her diagnosis of ovarian cancer, she underwent a hysterectomy and related surgeries and her cancer was in remission. While the plaintiff had a family history of cancer and endometriosis, the plaintiff presented evidence that talc was found in the plaintiff’s ovarian tissue after the hysterectomy. Notably, the jury found the manufacturer of the powder products liable for the full amount, but cleared the co-defendant supplier of any liability. The company will appeal the verdict.
It is evident that companies with any link to the manufacture of talcum products should tread very carefully in litigation in the United States. With plaintiffs alleging injury from inhalation of asbestos and talc-containing products through their personal and professional lives, it is possible to an extent to verify and confirm such use and exposure. Here, however, due to the private nature of using talcum powder for hygienic purposes, these allegations are tougher to dispute. The importance of the scientific studies, the statistical associations between use of the powder and ovarian cancer, and the expert testimony (pathologists, geologists, epidemiologists, etc) become paramount, even as these areas have yet to be developed and their conclusions continue to be at odds. In certain jurisdictions and with the right type of jury, there can a heightened risk of a verdict that will open the floodgates for further plaintiffs to allege similar injuries.