Defending Retailers in Talcum Powder and Cosmetic Product Litigation

February 26, 2021Article

The uptick in talcum powder and cosmetic talc products lawsuits is ongoing, affecting not only manufacturers and raw material suppliers but also retailers where plaintiffs claim to have purchased products allegedly containing trace amounts of asbestos. This trickledown tactic applied by plaintiffs’ firms to encompass all pockets, no matter the depth, plays a role in shaping the defense of an action. This article explores the strategies available to retailers as defendants in this ever-evolving and high-stakes litigation.

In a product liability action, after the plaintiff identifies the purchase of the product at issue from a particular retailer, more often than not, the retailer will seek defense and indemnification from the manufacturer based upon the parties’ contractual agreement.[1] After said identification is made and presumably no proof of purchase offered, it should be determined:

  1. whether the product was sold by the retailer;
  2. whether it was sold at the retailer location(s) where the plaintiff allegedly purchased the product, and;
  3. whether the product was sold at the retailer location(s) during the time plaintiff allegedly purchased the product.

If the answers are in the negative, retailers should aggressively seek to dismiss the claims against it for lack of product identification. If the answers are in the affirmative, however, defenses available for retailers to refute claims vary by state.

In some states, product liability statutes encompass claims for negligence, strict liability, and warranty, imposing strict liability upon retailers but ruling out all potential common law claims.[2] States also vary on whether the theory of strict liability may be imposed in product liability actions. The justification for the imposition of strict liability on retailer defendants is “that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it…that the public has the right to and does expect…that reputable sellers will stand behind their goods…”[3]

In jurisdictions where strict liability applies to sellers, the defense of the retailer moves in conjunction with that of the manufacturer.[4] However “[t]he burden is generally on the plaintiff to prove that a defendant was a seller or manufacturer of the particular defective item that caused plaintiff’s injuries.”[5] Yet, the Florida Supreme Court held that a “retailer is liable only to his customer when the effort is made to impose upon him the strict and absolute liability implicit in a warranty,”[6] and did not enforce a duty upon retailers to inspect for latent defects.[7]

Regarding negligence claims, some jurisdictions have held that a retailer may be liable if it had actual or implied knowledge of the defect.[8] Courts have held that a retailer which knew of a defect in the product sold to consumers without warning, and without remedying the defect, was liable for plaintiffs’ injuries.[9] In such jurisdictions, the retailer defendant must prove that it did not know of any alleged defect when the product was sold. In talcum powder and cosmetic litigation, plaintiffs must prove that a retailer defendant had actual or implied knowledge that the powder or makeup sold was contaminated with trace amounts of asbestos. To date, no retailer has been held liable under this theory in any talc litigations.

In a limited number of jurisdictions, retailers can use the “sealed/closed container” defense for products received in a defective condition. “The sealed container defense is meant to make liability for damages and injury caused by a defective product lie with the manufacturer, not the retailer.”[10] For example, Maryland courts weigh the following considerations when assessing the application of the sealed container defense:

  1. The product was acquired and then sold or leased by the seller in a sealed container or in an unaltered form;
  2. The seller had no knowledge of the defect;
  3. The seller in the performance of the duties he performed or while the product was in his possession could not have discovered the defect while exercising reasonable care;
  4. The seller did not manufacture, produce, design, or designate the specifications for the product which conduct was the proximate and substantial cause of the claimant's injury; and
  5. The seller did not alter, modify, assemble, or mishandle the product while in the seller's possession in a manner which was the proximate and substantial cause of the claimant's injury.

Md. Code Ann., Cts. & Jud. Proc. § 5-405(b).

Under this theory, retailer defendants in talcum powder and cosmetics lawsuits must prove:

  1. the powder or makeup was acquired by the manufacturer and sold to the plaintiff in a sealed container;
  2. the retailer had no knowledge of whether the product contained trace amounts of asbestos;
  3. the retailer could not have discovered whether the powder or makeup had trace amounts of asbestos while it was in its possession;
  4. the retailer did not manufacture or design the specifications of the powder or makeup, and;
  5. the retailer did not alter or modify the powder or makeup in a way which caused plaintiff’s asbestos-related condition.

Significantly, a retailer will need to prove factors three and five by maintaining that it could not have discovered the alleged asbestos contamination within the product sold as it remained in a sealed container, and it did not alter, modify, assemble or mishandle the product once it reached the retailer to cause the alleged asbestos contamination.

Retailers also face breach of warranty-based product liability claims, which may include breach of implied warranty of merchantability, implied warranty of fitness, and express warranty. It is not anticipated that a retailer would be found in violation of the implied warranty of merchantability[11] – which requires that a product be fit for the general purpose for which it is used[12] – or the implied warranty of fitness for a particular purpose,[13] which requires that a plaintiff establish the product was not just defective, but defective as to a certain purpose.[14]

In a talcum powder action, a retailer can prove there was no violation of an implied warranty of merchantability or fitness so long as the talcum powder or cosmetic product functioned according to its intended use, even if the product was allegedly “defective in the sense that they were dangerous.”[15] For example, the use of talcum body powder by a plaintiff for decades because it made her skin feel smooth refutes a claim for implied warranty of merchantability or fitness if the powder served the purpose of plaintiff’s use: to acquire smooth skin. Further, it is unlikely in these types of cases that plaintiffs, most of whom allege to have used the powder and cosmetic products at issue for decades before the commencement of an action, sought and received instructions from the retailer by which they reasonably relied on – e.g. that the product did not contain trace amounts of asbestos –to prove a breach of an expressed warranty.[16]

Although there are various overlapping defenses attributable to both retailers and manufacturers, there are specific concerns in talcum powder and cosmetic product litigations for retailer defendants of which to be aware, as outlined herein. Being cognizant from the outset of the lawsuit, especially about a plaintiff’s allegations of the time and place of a product’s purchase, is critical to a successful defense. Early identification of all available defenses is pivotal to limit any potential liability faced by a retailer in these actions.

Authors: Edward P. Abbot (Partner-in-Charge, New York)

[1] See Products Liability: Seller's right to indemnity from manufacturer, 79 A.L.R.4th 278, 2.

[2] See, e.g., Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 465, 562 A.2d 517, 518 (1989).

[3] Products Liability: Strict liability in tort, 13 A.L.R.3d 1057, 4, citing to Second Restatement of Torts § 402.

[4] Under California’s products liability laws, a seller of a defective product is strictly liable for injuries caused by the product, even if the seller was not negligent. See Greenman v. Yuba Power Prods., Inc., 59 Cal. 2d 57, 27 Cal. Rptr. 697, 377 P.2d 897 (1963) (“A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. Recognized first in the case of unwholesome food products, such liability has now been extended to a variety of other products that create as great or greater hazards if defective”).

[5] 1 California Products Liability Actions § 2.14 (2020).

[6] Carter v. Hector Supply Co., 128 So.2d 390, 391 (Fla. 1961).

[7] Id.

[8] See, e.g., Marrillia v. Lyn Craft Boat Co., 271 So. 2d 204 (Fla. 2d DCA 1973).

[9] See Products Liability: Liability of manufacturer or seller as affected by failure of subsequent party in distribution chain to remedy or warn against defect of which he knew, 45 A.L.R.4th 777, 8c; see also Catlin v. Union Oil Co., 31 Cal. App. 597 (Dist. Ct. App. 1916); Parkinson v. Cal. Co., 255 F.2d 265 (10th Cir. 1958).

[10] Rice v. Medline Indus., No. CCB-13-2275, 2013 U.S. Dist. LEXIS 171385, at *5-6 (D. Md. Dec. 5, 2013) citing Liesener v. Weslo, Inc., 775 F. Supp. 857, 859 (D. Md. 1991).

[11] 41A Fla. Jur. Products Liability § 64 (“In the case of a defect in the design of a product that is not obvious to an ordinary person on inspection, the seller of the product may be sued for personal injuries caused thereby on the ground of breach of an implied warranty of merchantability, notwithstanding that the purchaser failed to inspect the product or actually inspected it before undertaking the use thereof, in the course of which the injury occurred”).

[12] 23 Personal Injury--Actions, Defenses, Damages § 110.14 (2020).

[13] Id.; see also, e.g., Hanson v. Murray, 190 Cal. App. 2d 617 (1961) (holding that a weed killer did not violate the implied warranty of merchantability because it killed weeds, but also damaged nearby orange trees and, therefore, violated the warranty of fitness for a particular purpose).

[14] Cobbins v. J.E. Dunn Constr. Co., No. 15-0031-CV-W-ODS, 2016 U.S. Dist. LEXIS 149603, at *9 (W.D. Mo. Oct. 28, 2016) (internal citations omitted).

[15] Bellman v. NXP Semiconductors USA, Inc., 248 F. Supp. 3d 1081, 1155 (D.N.M. 2017).

[16] See Tapia v. Davol, Inc., 116 F. Supp. 3d 1149, 1160 (S.D. Cal. 2015)