Once upon a time – beginning in 1969, to be precise – “asbestos plaintiffs” were generally age 60+ blue-collar working men who spent their careers pipefitting, shipbuilding, insulating or laboring in other industries which caused them to be exposed to asbestos and asbestos-containing products. Flash forward to 50 years later, and the pool of asbestos plaintiffs now includes women of varying ages and economic classes who used cosmetic talcum powder products, such as baby powder, scented bath powder and make-up throughout their lifetime, and have been diagnosed with illnesses such as mesothelioma, ovarian cancer, or lung cancer. The dwindling of “traditional asbestos defendants” has allowed the plaintiff profile to evolve. The allegations that these women’s use of, and exposure to, talc begs the question of why plaintiffs’ attorneys have not sought to include as defendants the makers of a product that caused women to be exposed to talc quite directly and intimately: condoms.

Asbestos bankruptcies began in 1982 with Johns-Manville after facing an unprecedented wave of liability, by then having supplied 85% of the world’s asbestos-containing products. Following the demise of Johns-Manville, the United States Bankruptcy Code was amended to include 11 U.S.C. § 524(g), an “asbestos bankruptcy trusts” provision, which allowed companies to reorganize without the threat of future asbestos litigation by establishing a trust fund with adequate compensation for present and potential claimants. In turn, “traditional” asbestos companies, manufacturers, and suppliers quickly started to disappear from the civil tort system because it was not lucrative to the plaintiffs’ bar to pursue bankrupt entities. This saving grace for traditional asbestos defendants allowed the creativity of plaintiffs’ attorneys to flourish in order to reach new solvent defendants, including cosmetic manufacturers, talc suppliers, and retailers of talc-containing products. Noticeably absent from most asbestos-related cosmetic talc complaints, however, are condom manufacturers.

Plaintiffs’ attorneys often rely on studies dating back decades to support claims that cosmetic talcum powders were either contaminated with asbestos, or that “uncontaminated” or pure talc is a risk to human health. Similar studies from the same time period concerning the risk of using talc on condoms, however, are ignored by the plaintiffs’ bar, and yet many plaintiffs’ firms’ websites point out that talc was used on condoms. So why are plaintiffs’ firms omitting condom manufacturers from the dozens of defendants listed in talc-related complaints, especially in light of claims that talc caused plaintiffs to develop ovarian cancer?

A 1994 article published in the Food and Chemical Toxicology Journal referred to a late-1970s conclusion that “normal use of cosmetic-grade talc does not present a health hazard,” (emphasis added) but referred to other studies concerning the association with chronic use of talc by women for genital hygiene that may be associated with a risk of ovarian cancer.[1] In a reply to a 1995 Letter to the Editor written by Drs. Candance Sue Kasper and P.J. Chandler, Jr. in the Journal for the American Medical Association, attention was brought to the use of talc in lubricated condoms.[2] The doctors noted support to eliminate the use of talc in the manufacturing of latex condoms due to the potential “pathologic consequences from exposure to talc.” Due to such concerns, Ansell Products, the maker of Lifestyle condoms, ceased using talc as a “condom processing material in January 1994”[3] over suspicions that talc could cause ovarian cancer and the concern over future litigation.[4]

Further, scientists have studied whether perineal dusting, including through talc-dusted diaphragms and condoms, have an association with a higher risk of cancer.[5] In fact, some have suggested that “[f]rom an epidemiologic perspective it may be argued that the diaphragm and condom data is more valid if not the only valid measure of female reproductive tract talc exposure.”[6] If data of exposure from condoms is considered the only valid measure for talc exposure to the female reproductive system, why is the plaintiffs’ bar not seeking expert opinions concerning potential exposure to talc-dusted condoms?

Interestingly, studies subsequent to 1995 have generally been sparse in further assessing the “potential talc exposure from diaphragms or condoms,” as noted in a 1999 article referring to previous studies from 1982 and 1992 that did not find any associated risk.[7] This may be due to condom manufacturers decreasing or ceasing their use of talc as a lubricant around1995.[8] Nevertheless, plaintiffs are not shy in seeking their day in court over claims that cosmetic dusting powders applied all over the body, often to “private” areas, caused their disease. So why have plaintiffs been shy about pursuing similar claims based upon exposure to talc-dusted condoms? Perhaps it is only a matter of time for condom manufacturers to be included on the list of defendants in asbestos-in-talc matters. We have seen time and again the pool of “asbestos defendants” evolve and, as the most infamous of all asbestos plaintiffs’ lawyers once said, asbestos litigation is “an endless search for the solvent” defendant. As the case may be, the next solvent defendant could be none other than the makers of condoms, causing the manufacturers to search for protection of their own.

---

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

---