Imerys SA agreed to sell off its North American talc mines to pay for a settlement of up to $102.5 million, working with representatives of 14,000 existing and potential future claimants who got cancer from asbestos-laden talcum powder products.
Imerys is the primary supplier of talc to Johnson & Johnson, whose Baby Powder and Shower to Shower products are the target of 17,058 lawsuits consolidated before US District Chief Judge Freda L. Wolfson in MDL 2738, IN RE: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation.
The Imerys settlement does not affect the Johnson & Johnson cases in the MDL because, on February 13, 2019, Imerys Talc America, Inc., Imerys Talc Vermont, and Imerys Talc Canada filed a voluntary petition under Chapter 11 in the US Bankruptcy Court for the District of Delaware. The automatic stay in Bankruptcy Court halted the lawsuits against Imerys, which have been in Bankruptcy Court since then.
Approval possible in June
The Imerys bankruptcy cases are pending before the Judge Laurie Selber Silverstein, and are jointly administered under Case No. 19-10289. Judge Silverstein may approve the settlement as early as June 2020. The French-based J&J talc supplier is expecting to receive confirmation of the plan and emerge from bankruptcy protection by the end of 2020.
Assets of the 3 Imerys companies will be sold at auction with the proceeds going into an independent trust to compensate talc victims, the company said in a statement. In return, plaintiffs will drop their suits, allowing the businesses to emerge from Chapter 11.
The deal aims to end six years of litigation over Imerys’s role as the sole talc supplier for J&J. Imerys agreed to make a minimum $75 million payment. An additional amount of up to $102.5 million, subject to a reduction mechanism proportionate to the sale price of the assets.
An April 2018 verdict by a New Jersey jury ordered Imerys to pay a $25 million in punitive damages award to Stephen Lanzo and his wife. Then in June 2018 Imerys agreed to pay $5.5 million before trial to settle claims from 22 women, who alleged that its asbestos-contaminated talc caused them to develop ovarian cancer.
In the same case, J&J was ordered to pay $4.7 billion in damages to the plaintiffs. For more details, read Johnson & Johnson is Battered by Talcum Powder – Cancer Litigation.
Talc and Asbestos
“It is unlikely that any naturally occurring talc deposit would not also contain some asbestos. Combine the foregoing with the fact that there are no practicable and economical means by which to separate asbestos from talc, it is reasonable to conclude that, it is more likely than not, that all talc contains asbestos,” writes John Ray, who has been a leading consultant to the Mass Tort industry for more than a decade.
Talc and asbestos often occur in the same geological formations together. Before the dangers of asbestos were publicly revealed, many companies neglected to check for asbestos in talcum powder products.
Imerys said the bankruptcy settlement was a “Significant step for Imerys towards a permanent and final resolution of historic talc-related liabilities.” It will produce a “favorable outcome for the Group allowing to move forward and focus on its current operations, free of historic talc-related liabilities.
Imerys operates hundreds of industrial sites across 50 countries around the world, supplying about 15% of the world’s talc. It operates mines and processing facilities in Europe, North America, Asia, and Australia. Its open-cast mine in Three Forks, Montana, is the largest talc operation in the United States.
The company did not play a major role in the asbestos industry during the 20th century. Rather, Imerys’ liability for asbestos exposure came with its acquisition of the Luzenac Group, a major talc supplier.
Imerys Talc America is liable for diseases caused by asbestos-contaminated talc mined by the Luzenac Group during the 20th century. Imerys disputes its talc has ever caused cancer, but recent lawsuits involving the company have been successful for plaintiffs.