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High-Profile Litigation in Missouri Over Talcum Powder Beginning To Cool

The high-profile litigation in Missouri over talcum powder might be beginning to cool down, thanks to a recent U.S. Supreme Court decision, but a talc-related litigation in Pennsylvania is beginning to heat up, and may set a pattern for a growing area for tort claims.

The case is captioned Brandt v. Bon-Ton Stores, and, although the claims stem from plaintiff Sally Brandt’s use of a talcum powder cosmetic product, the case is being handled in the Philadelphia Court of Common Pleas’ asbestos program. That’s because Brandt claimed she developed mesothelioma as a result of asbestos alleged to have been contained in the Cashmere Bouquet talcum powder she and her family used between 1954 and 1970.

The parties recently fought over some of the science behind their claims in a Frye hearing, and the case is set to be tried before a jury next month. According to asbestos attorneys, the case presents the first instance where a Pennsylvania court will be able to weigh into substantive scientific issues involving an emerging area of asbestos litigation.

With a string of high-profile verdicts against Johnson & Johnson ranging from $55 million to $110 million, talc-related litigation has been grabbing headlines for more than a year, but Brandt’s suit is very different.

The high-profile talc claims against J&J mostly deal with ovarian cancer, and more than 1,300 cases have been brought in Missouri state court. An additional 426 cases are pending in a multidistrict litigation in the U.S. District Court for the District of New Jersey. Although jury selection has just begun in a Los Angeles courtroom for the first talc product trial outside Missouri, J&J is also using the recent Supreme Court decision in Bristol-Myers Squibb v. Superior Court to dismiss 1,365 cases from the Missouri docket.

Brandt’s claims are more easily classified as asbestos litigation, and the primary defendants in talc-related asbestos cases include Colgate-Palmolive, who sold the product, and Whittaker, Clark & Daniels, which distributed it. Although the suits have not been as eye-catching as the verdicts against J&J, over the past few years plaintiffs with talc-related mesothelioma claims have won significant verdicts.

In 2013, a New Jersey jury awarded a $1.6 million verdict over asbestos-related talc claims. That number was shattered with the reportedly record-setting $18 million verdict a Los Angeles jury awarded in October, and, most recently, a New York jury hit defendants with a $16.5 million verdict.

According to Rawle & Henderson attorney John C. McMeekin II, who is representing Imerys Talc America in Brandt, there are a handful of cases in Pennsylvania—primarily in Philadelphia and Pittsburgh—claiming talc led to mesothelioma.

“It’s not a one-off case,” McMeekin said, adding that Brandt is set to be the first talc-related asbestos case to hit the trial phase in Pennsylvania. “That’s really why Brandt is an important case, and why the court granted a Frye hearing.”

Nass Cancelliere Brenner attorney Edward Nass, who represents plaintiffs in mesothelioma cases, but is not involved in Brandt, agreed the case is likely the first to be pursued in Pennsylvania over exclusively talc-related asbestos claims. However, Nass said that, given information uncovered about talc over past five to 10 years, attorneys who represent clients with mesothelioma are increasingly curious about talc.

“When our firm is interviewing a mesothelioma victim, we’re asking about traditional asbestos exposure, and we’re also asking about talc exposure, because we now know it’s another potential source for the client’s illness,” Nass said. “It’s a much more germane issue, and I think most, if not all, experienced asbestos attorneys are looking at talc as another source for the person’s mesothelioma.”

Parties in Brandt have raised numerous issues for the Philadelphia court to examine under the Fryetest. A four-day Frye hearing was held beginning July 10. According to McMeekin, chief among the issues raised by defendants are the methodologies used by plaintiffs’ pathology expert, Dr. Ronald Gordon, and plaintiffs’ geology and microscopy expert, Sean Fitzgerald.

Court papers show a defense argument that Cashmere Bouquet had not been designed with asbestos as an ingredient, but rather asbestos may have been introduced at the manufacturing stage. It follows that it would be a leap, the argument continues, for experts to say Brandt had been exposed to asbestos without first testing the specific containers holding the product she actually used. There is also argument that the tested samples cannot be properly authenticated, since many were bought over the internet from websites, including the online auction house eBay.

According to a filing by Palmolive’s counsel, Kent & McBride attorney Theresa Mullaney, courts in New Jersey and California have precluded testimony regarding the samples, and a court in Baltimore recently determined there was no basis to authenticate the samples tested by Gordon and Fitzgerald.

McMeekin said these issues could be a significant factor in the growing litigation.

“These are experts and methodologies that are being challenged around the country,” he said. “It’s novel science and a novel theory.”

Nass, however, disagreed that an unfavorable Frye ruling in Brandt will stop similar cases from being brought in Pennsylvania.

“It’s certainly significant for the Brandt case,” he said. “The thing about a Frye hearing is it involves just an examination of the particular experts who made an opinion in that case… to me that doesn’t set a whole lot of precedent for other cases.”

Mullaney did not return a call seeking comment. Hoagland, Longo Moran, Dunst & Doukas attorney Steven Bardsley, who is representing Whittaker, Clark & Daniels, did not return a call for comment. Waters Kraus & Paul attorneys Gibbs Henderson, Jonathan George and Patrick Wigle are representing the Brandts. Wigle declined to comment on pending litigation.

Ashcraft & Gerel

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