WEEKLY MDL UPDATE by MASS TORT NEXUS for Week of November 13, 2017

The week in mass torts around the country:

By Mark York, Mass Tort Nexus (November 16, 2017)

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 Verdicts on November 16, 2017: 

J&J gets hit hard again, in a $247 million Pinnacle hip implant verdict, DePuy Orthopaedics Pinnacle Implant MDL 2244, in bellwether trial of 3:15-cv-03489 Alicea et al v. DePuy Orthopaedics Inc et al. (DePuy Pinnacle Hip Implant MDL 2244 Briefcase)

Drug maker Auxilium won a defense verdict in their Testim product bellwether trial, where plaintiffs claimed it caused a heart attack in a verdict reached in the US District Court Northern District of Illinois, Judge Kennelly, in MDL 2545 Testosterone Replacement Therapy. (Testosterone Therapy MDL 2545 USDC ND Illinois)

Johnson & Johnson Wins a Defense Verdict in Los Angeles Court Talcum Powder Mesothelioma Trial, Jury Finds J&J Not Liable in Tina Herford et al. v. Johnson & Johnson Case number BC646315, consolidated in LAOSD Asbestos Cases, case number JCCP4674, in the Superior Court of the State of California, County of Los Angeles.  (J&J Talcum Powder Cancer Litigation Briefcase)

Senator Bob Menendez  judge declares a mistrial in New Jersey federal court trial, after a hung jury cannot agree unanimously on charges. Question is- Are the Senator and his doctor friend in Florida, just that-were they just friends or was there active bribery taking place?

Recent Case Updates:

>Plaintiff in DePuy Pinnacle Hip Implant Trial Asks Texas Jury For A Hundred Million + In Punitive Damages

At the close of arguments in the latest DePuy MDL 2244 trial on Monday November 13, 2017, six New York plaintiffs asked a Texas federal jury to hit Johnson & Johnson and it’s DePuy subsidiary, with at least a nine-figure punitive damages award. Attorneys asked that J&J and DePuy be punished for making and marketing their Pinnacle model hip implants, an alleged defective line of metal-on-metal hip implants, that have caused many thousands of injuries to unsuspecting patients. If this jury follows suit on prior Pinnacle bellwether jury awards, then J&J and DePuy should be ready for a massive verdict, as the last jury awarded California plaintiffs over one billion dollars in December 2016, sending a clear message that the company’s Pinnacle design and subsequent marketing policies have failed.

METALLSOIS DAMAGE

Closing arguments wrapped up on the two-month bellwether trial, where plaintiffs claimed they suffered “metallosis” which caused tissue damage and negative reactions to the Pinnacle Ultamet line of metal-on-metal hip implants made by J&J’s DePuy Orthopaedics Inc. unit. Depending on the jury verdict, perhaps J&J will consider coming to the settlement table if another massive verdict is awarded, or they may continue the aggressive “we’ve done no wrong stance” resulting in more plaintiff verdicts in the future..

 >Travelers Insurance Wins Declaratory Judgment Suit Over Defense Coverage In Orange County and Chicago Opioid Lawsuits:

“California Appeals court says Watson not covered”

Watson Pharma, Inc. and it’s parent Activis, Inc. were denied insurance coverage in a November 6, 2017 ruling by the California State Court of Appeals in the 2014 Declaratory Judgment action filed by Travelers Insurance in an Orange County, CA court where Travelers successfully asserted claims that they were not required to defend or indemnify Watson in the underlying opioid based litigation filed by Santa Clara and Orange County against opioid manufacturers, due to Watson’s “intentional bad conduct” in their business practices related to sales and marketing of it’s opioid products. The Appeals Court also excluded Watson’s coverage in a similar opioid lawsuit against them in a Chicago, Illinois federal case where the City of Chicago filed similar claims against Watson over opioid marketing abuses in 2014. Perhaps other insurance carrier will take notice and look closer at denying policy coverage for many other opioid manufacturers who have been sued across the country in cases with almost the exact claims as those alleged by Santa Clara County and the City of Chicago.

>NEW XARELTO TRIAL:

Former FDA Commissioner Testifies in Philadelphia Xarelto Trial-

“Xarelto Warnings Are Inadequate”

— Former head of the Food and Drug Administration, Commissioner David Kessler testified during the first state court trial in Philadelphia, telling the jury on Tuesday that “warning labels for the blood thinner Xarelto failed to provide adequate information to doctors and consumers about the risk of bleeding that some patients could face when using the drug”.

David Kessler, FDA Commissioner under President George H.W. Bush and President Bill Clinton, told jurors that Bayer AG and Johnson & Johnson’s warning labels for the medication understated the risk of significant bleeding events that had been seen in television and print ads across the country for years, and failed to disclose the true risks associated with prescribing the blockbuster drug. This trial, expected to take six weeks, is the first state court bellwether trial for the blood thinner Xarelto, in the Philadelphia Court of Common Pleas, the prior trials took place in federal courts in Louisiana and Mississippi where the defense prevailed in all 3 trials earlier this year. Those trials were all bellwether trials, as part of the Xarelto MDL 2592 in front of Judge Eldon Fallon, US District Court, ED Louisiana. Will the change of venue to Pennsylvania State Court have a different outcome than the three prior Xeralto trial losses?

>Luzerene County, Pennsylvania Files RICO Suit Over Opioid Marketing Against Drug Makers

Luzerne County in Northeast Pennsylvania has filed a federal RICO based lawsuit accusing pharmaceutical companies including Purdue, Pharma, Endo, Janssen and Teva of violating the Racketeer Influenced and Corrupt Organizations Act by illegally marketing highly addictive painkillers that have contributed to a costly national opioid epidemic. The suit filed in US district Court of Pennsylvania by Luzerne County is one of many cases opioid drugmakers and distributors are facing as state and local governments seek to recoup costs they’ve incurred in the increased marketing and prescribing of opioid painkillers, and the resultant spikes in addiction and overdose.

OPIOID MARKETING ABUSES

“The manufacturers aggressively pushed highly addictive, dangerous opioids, falsely representing to doctors that patients would only rarely succumb to drug addiction,” the complaint, which was filed on Wednesday, said. “These pharmaceutical companies … turned patients into drug addicts for their own corporate profit.”
“The lawsuit accused the drugmakers of using false and deceptive marketing practices over the course of the last two decades, including pushing the opioid painkillers for treatment of chronic pain, to boost prescriptions for the drugs

COMMON CLAIMS AGAINST ALL OPIOiD MAKERS

Among the companies’ primary claims, cited by Luzerne county and others, evidence the manufacturers intentionally misled consumers, was that the drugs were not addictive when prescribed to treat legitimate pain. This is one of the key claims used by all parties filing suit against the opioid manufacturers, across the entire country.

Case heading is: Luzerne County v. Purdue Pharma LP et al., case number 3:17-cv-2043, in the U.S. District Court for the Middle District of Pennsylvania.

>Opioid Litigation Roundup: An Overview Of Recently Filed Cases and MDL 2804

In addition to the many counties and other communities from across the country that have filed lawsuits against opioid manufacturers in MDL 2802, set for a JPML consolidation hearing November 30, 2017 a new group of plaintiffs have joined the increasing pool of parties filing suit against Big Pharma opioid manufacturers and their distributors. Unions are now joining in the suits alleging that the business practices of the opioid makers and distributors caused catastrophic healthcare and related labor problems everywhere in the country over the last 15 years. Locals from the Electrical Workers; Commercial Food Service and Teamsters are now plaintiffs in the MDL 2804, which if approved at the upcoming JPML hearings in St Louis, will probably cause a flood of additional filings by unions across the country.

State attorneys general, a Native American tribe and individual consumers are among the ever increasing pool of plaintiffs who’ve brought lawsuits against drugmakers, pharmacies and distributors allegedly responsible for epidemic levels of opioid abuse. As word spreads among the network of local governments, and discussion take place about the municipal opioid lawsuits being filed, there will be a flood of new complaints filed, that will match or exceed the number of cases filed in the massive “Tobacco Litigation” which is quickly gaining comparison as the opioid case filings are looking to be comparable in size and probably exceed the tobacco litigation in damages.

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$417 Million J&J Talcum Powder Cancer Verdict Overturned in Los Angeles Court

JOHNSON & JOHNSON SCORES A POST-TRIAL DEFENSE RULING IN CALIFORNIA STATE COURT

 

 

 

 

 

 

 

 

Last week a California state court set aside a $417 million verdict awarded in August 2017, against Johnson & Johnson in a lawsuit by a woman that claimed J&J’s talc-based product, Johnson’s Baby Powder caused her ovarian cancer after years of feminine hygiene use.

Los Angeles Superior Court Judge Maren Nelson entered a ruling  that’s a further setback facing women and family members who accuse J&J of not warning consumers about the cancer risks of its talc-based products. There are now thousands of lawsuits filed against J&J over the claims that use of talc products leads to ovarian cancer, the cases are files in both state and federal venues across the country including the federal Multidistrict Litigation in J&J Talcum Powder MDL 2738 (USDC New Jersey) as well as thousands of Missouri State court cases, (see J&J Talc Cases in Missouri State Court), where plaintiffs have successfully obtained large verdicts against J&J over the last two years. A single talc verdict won in Missouri state court, was recently overturned based on the June 2017 US Supreme Court Plavix ruling, which defined a plaintiff’s residence as the jurisdictional guide to where state court cases can be filed.

There is another J&J talc related trial currently underway in front of  Judge Edward Simpson, in the same LA County Court, where there plaintiff has alleged use of J&J’s talcum powder products caused her to contract Mesothelioma. This trial started October 19th after plaintiff Tina Herford’s first trial was declared a mistrial on October 6, 2017, when Ms. Herford made a statement on the witness stand related to “talc use and ovarian cancer” causing Judge Simpson to declare a mistrial and quickly move to get the new trial started within 10 days. The J&J California state court trials and others soon to follow across the country, will keep J&J defense counsel busy for the foreseeable future, as more and more of J&J’s behind the scenes manipulation of R&D, paid research papers and suppression of adverse scientific publications is now coming to light, with all this conduct being introduced as evidence in the trials.

Judge Nelson’s ruling followed the jury’s decision in August to hit J&J with the largest verdict to date in Talc litigation, awarding California resident Eva Echeverria $70 million in compensatory damages and $347 million in punitive damages. This trial was fast-tracked due to Ms. Echeverria’s onset of stage 4 cancer and fears that she would not survive the wait for a trial set past August 2017.

Nelson reversed the jury verdict and granted J&J’s request for a new trial, ruling the August trial was underpinned by errors and insufficient evidence on both sides, culminating in excessive damages. The judge added that there also had been misconduct of the jury during the trial.

Mark Robinson, who represented the woman in her lawsuit, said he would file an appeal immediately, “We will continue to fight on behalf of all women who have been impacted by this dangerous product,” he stated.

J&J in a statement said it was pleased with the verdict, adding that it will continue to defend itself in additional trials.  J&J said declarations by two jurors after the trial showed that three members of the 12-person jury who voted against finding the company liable were improperly excluded from determining damages.

J&J also stated that  it faces lawsuits by 4,800 plaintiffs nationally asserting talc-related claims. Many of those cases are in California, where Echeverria’s case was the first to go to trial, and in the previously referenced Missouri court, where J&J has faced five trials, with very limited success.

The Missouri litigation led to four plaintiff verdicts against J&J in which juries issued verdicts totaling $307 million, with J&J only winning a defense verdict in a single trial.

But the Missouri cases do have a legal hurdle to address, the cases have largely been brought by out-of-state plaintiffs, hand now face jurisdictional questions after the US Supreme Court issued the June 19, 2017 Plavix ruling that limited where personal injury lawsuits could be filed, see U.S. Supreme Court Strikes Down California Ruling in Bristol-Myers’ Plavix Jurisdictional Case.

On October 17, 2017 , a Missouri appellate court threw out a US$72 million verdict by a jury in February 2016 to the family of a deceased Alabama woman after ruling the case should not have been tried in St. Louis, see Missouri Appeals Court Throws Out $72 Million Johnson & Johnson Talcum Powder Cancer Verdict.

Mass Tort Nexus will publish additional case updates and additional information regarding all Johnson & Johnson Talcum Powder related litigation across the country as they develop.

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Is Industrial Talc Litigation The Next Major Mass Tort?

Will Industrial Talc Litigation Become Another Asbestos?

 

 

 

 

 

 

 

Is Industrial Talc the next “major mass tort or MDL” to watch, now that talc litigation is  becoming more common in Mass Torts? Major verdicts against cosmetic talc defendants, including Johnson & Johnson (“J & J”), suggest that talc litigation, at a minimum, is a potential major threat to talc defendants other than J&J, extending into more general product manufacturing sectors including the “personal care product” industry, see J&J MDL 2738 Mass Tort Nexus Briefcase.  In 2016, J & J and other defendants suffered three large verdicts for exposure to its baby powder in St. Louis, Mo.: $72 million, $70 million and $55 million. All three verdicts, in a jurisdiction considered favorable to asbestos plaintiffs, included substantial punitive damages, see J&J Talc Cases In St Louis, MO State Court.

The plaintiffs in each of these cases alleged that exposure to talc contained in J&J’s baby powder caused them to contract ovarian cancer. Also in 2016, a Los Angeles jury awarded $18M to a plaintiff who sued a cosmetic talc defendant alleging exposure to cosmetic talc caused the plaintiff to contract mesothelioma.

There is a current ovarian cancer claim trial against J&J in Los Angeles Superior, Judge Maren Nelson that started July 10, 2017, see J&J Faces First CA Talc Cancer Trial in Los Angeles Court, where plaintiff Eva Echeverria claims that J&J baby powders caused her ovarian cancer, in the consolidated J&J Talc Litigation JCCP No. 4872 (Eva Echeverria v. Johnson & Johnson, Case No. BC628228).

Assuming talc litigation is not going away any time soon, several questions are raised. Are all talc claims the same? What is the relationship between talc and asbestos, if any? What defendants are at risk in the talc litigation? What are the insurance implications of talc claims, and are they alike or different from asbestos and other long-tail coverage claims?

Talc History

There are two types of talc: industrial talc which is used most frequently in rubber, plastics and ceramics; and cosmetic talc which is of a higher grade and is used in conjunction with products that involve direct human exposures such as cosmetics, pharmaceuticals and food additives.

Talc manufacturers and companies that have incorporated talc into their products have been, and continue to be, sued. Industrial talc defendants have been involved in litigation for decades. In lawsuits involving industrial talc, plaintiffs generally allege that the talc is contaminated with asbestos. The injuries alleged are mesothelioma, lung cancer and asbestosis. To date, there have been no claims against industrial talc defendants alleging that asbestos in the talc caused ovarian cancer. Industrial talc defendants have aggressively defended the cases and, although suffering some adverse verdicts, they won more cases than they have lost. However, will thousands of new industrial talc claims result in acceptance of litigation and pressure to settle as a suddenly arising “cost of doing business’, such as the view taken by pharmaceutical and medical device manufacturers who incorporate “litigation costs” into corporate filings and simply classify it as an expense of doing business?

Cosmetic talc cases fall into two distinct categories: 1) cosmetic talc alleged to cause ovarian cancer; and 2) cosmetic talc alleged to cause mesothelioma. The J & J verdicts were ovarian cancer cases. There was no claim that the talc was contaminated with asbestos.

While the J & J St. Louis verdicts received significant attention in the national media, cases alleging that asbestos-containing cosmetic talc caused an asbestos-related disease such mesothelioma have been percolating, and some recent notable verdicts have been obtained. In 2015, a Los Angeles jury awarded $13M to a woman who alleged talcum powder sold by Colgate-Palmolive was contaminated with asbestos causing her to contract mesothelioma.  These cases, if they emerge as viable litigation, could make cosmetic talc defendants targets by substituting them for insolvent asbestos defendants and anyone else who may be named, which would present an extreme and unforeseen threat to cosmetic talc defendants and affiliated industry.

Cosmetic Talc Litigation – Ovarian Cancer

Cases alleging injury from cosmetic talc are relatively new, as best exemplified by the recent high-profile J & J verdicts. These cases did not depend on asbestos contamination, nor did they allege mesothelioma. Instead, they alleged that talc itself causes ovarian cancer. The ovarian cancer talc cases indeed represent an entirely new class of toxic product liability litigation. The approximately 14,000 ovarian cancer deaths a year, in conjunction with the widespread use of talc in everyday products such as baby powder, renders these cases a serious threat to certain defendants and their insurers.
According to the National Institute of Health, there are 22,280 new ovarian cancer diagnoses each year in the U.S. and 14,240 women die of the disease every year. This is seven times the number of annual mesothelioma diagnoses.

The American Cancer Society estimates that there are only 3,000 new mesothelioma diagnoses a year,  with mesothelioma lawsuit filings being stable and not increasing. Like any other business, plaintiffs’ firms are always looking to maintain and grow revenue. Litigation against cosmetic talc defendants alleging ovarian cancer offers a way to substantially increase their bottom line. Indeed, “do you have ovarian cancer?” and “did you use talcum powder?” ads are commonplace on television.

Because everyone can credibly claim exposure to cosmetic talc, the primary issue that will be litigated is the science underlying the causal connection between talc exposure and ovarian cancer. While plaintiffs prevailed in the St. Louis actions, Imerys Talc and J & J persuaded a New Jersey trial court in 2016 to dismiss with prejudice two ovarian cancer cases after granting their motions to bar expert testimony due to inadequate science supporting their opinions. Apparently pressing their advantage, the defendants persuaded the federal talc MDL in New Jersey to conduct a “science day” in which the litigants would attempt to generally demonstrate that cosmetic talc does or does not cause ovarian cancer. The plaintiffs’ bar quickly responded with their own proposed “science day” in California state court, presumably where they perceive a jurisdictional advantage. The “science” of whether cosmetic talc causes ovarian cancer will be the field of battle on which the sustainability of these claims will live or die.

The sustainability of ovarian cancer talc cases will depend on how the courts resolve the science questions surrounding causation. This will depend in large part on the plaintiffs’ bar’s ability to persuade courts outside jurisdictions traditionally favorable to asbestos claimants of the merit of their claims.

Cosmetic Talc Cases Alleging Asbestos-Contamination

In addition to the emergence of ovarian cancer cases, cosmetic talc defendants are also at risk of becoming responsible for mesothelioma cases alleging that their products were contaminated with asbestos. If plaintiffs can meet their burden of proving asbestos contamination in their products, the issue of product identification will largely be moot due to the ubiquitous use of talc in everyday products to which any plaintiff can presumably credibly claim exposure.

Allegations of asbestos contamination in talc have a long and disputed history. The FDA launched an investigation in 2010 based on reports that talc from South Korea and China contained asbestos. After extensive testing of various U.S. consumer products, the FDA found no asbestos contamination in the products. However, it described its results as inconclusive and only “informative” because it was unable to secure samples from all of the common talc suppliers.

The issue of whether cosmetic talc is contaminated by asbestos is disputed by the plaintiffs’ bar. The cosmetic talc defendants present an attractive target, especially given the declining pool of solvent asbestos defendants. In addition, while mesothelioma case filings have been relatively flat, the expected decline of mesothelioma claims has failed to emerge.

If mesothelioma cases do trend upward, plaintiffs’ lawyers will have additional incentive to identify new solvent defendants to satisfy the potential liabilities. Cosmetic talc defendants, generally not burdened by years of asbestos liabilities, make attractive defendants. In addition, because the traditional asbestos defendants that used and sold asbestos products have gone bankrupt, plaintiffs’ lawyers have increasingly struggled to demonstrate proximate cause against individual defendants and have been forced to make ever-more tenuous arguments that even de minimus exposures to asbestos caused their clients’ mesothelioma. The widespread use of cosmetic talc overcomes most traditional product identification, proximate cause defenses. Instead, the principal issue becomes only whether a particular product was contaminated with asbestos.
The plaintiffs’ bar will attempt to meet its burden of demonstrating asbestos contamination in cosmetic talc by arguing that traditional testing methods are not precise enough to detect it at low levels and that there is no safe level of asbestos exposure. In previous cases, plaintiffs have employed experts to challenge defendants that maintained talc samples. As these cases are being litigated in the same jurisdictions that handle most asbestos cases, these allegations will  be difficult for defendants to rebut.

Notable Cosmetic Talc/Asbestos Contamination Verdicts

Two recent verdicts for asbestos contamination demonstrate the risk to cosmetic talc defendants. In October 2016, a Los Angeles County jury awarded $18M to Philip Depolian against Whittaker, Clark & Daniels finding it 30% responsible for his mesothelioma due to his alleged exposure to various cosmetic talc products used at his father’s barbershops that contained asbestos. The jury apportioned liability against various cosmetic talc defendants that had settled and several other cosmetic talc product defendants that sold products including Old Spice, Clubman, Kings Men and Mennen Shave Talc.

In 2015, another Los Angeles jury awarded Judith Winkel $13M against Colgate-Palmolive for mesothelioma allegedly caused by exposure to talc in its baby powder. The jury rejected Colgate and its experts’ claims that the cosmetic talc at issue was not contaminated by asbestos and that the talc in question were non-fibrous “cleavage fragments” unlikely to be inhaled or embedded in the lungs. Although details of the trial are not readily verified, at least one report indicated that evidence presented at trial showed that the talc contained 20% asbestos fibers.

These cases are particularly important because the defendants were held responsible for cosmetic talc containing asbestos and for having caused mesothelioma and not ovarian cancer as in the J & J cases. Further, both juries found that the defendants acted with malice. However, the cases were confidentially settled before the respective punitive damage phases.

Who’s Liable if Industrial Talc Litigation Explodes

While the ovarian cancer cases have dominated the headlines, the cosmetic talc asbestos contamination cases may present the bigger risk to defendants and a much greater reward to plaintiff counsel. Thousands of companies used cosmetic talc in their products over the last hundred years. The entire population could claim exposure, especially to defendants that sold personal care products that could be ingested, inhaled or exposed via air-borne contact. The risk is that the cosmetic talc defendants become the defendant of last resort when a plaintiff has no other convincing credible sources of exposure to asbestos, especially when the original product source is now a bankrupt entity.

Science of Cosmetic Talc Claims: While it may be difficult to challenge long-established trigger approaches if a talc claim involves a claim of asbestos contamination, ovarian cancer talc claims may require a new look at trigger issues because the underlying science of how talc exposure may cause ovarian cancer is different from how asbestos inhalation damages the respiratory system. Having learned from previous trigger battles in asbestos, the insurers are likely to challenge the science that the first exposure to cosmetic talc causes injury that can be associated with the development of ovarian cancer and characterized as “bodily injury” as required in their policies. They may seek out scientific opinion that ovarian cancer caused by cosmetic talc is not progressive in nature, and thus not warranting the imposition of a continuous trigger. And, generally, the insurers will likely seek to limit the spread of potentially triggered policies to as few years as possible, and as close to the manifestation of the disease as possible.

Exceptional advancements in the science of diagnosing and predicting cancer in just the last few years will provide plaintiffs, policyholders and insurers the opportunity to craft new trigger theories to their advantage and to circumvent past judicial decisions that were to their disadvantage. We have already seen the insurance industry using alleged advancements in asbestos science to attempt to limit the scope of historical “occurrence” policies. There is no insurance precedence with respect to trigger and talc ovarian cancer claims. Expect both sides to bring new experts and theories with respect to biologic and genomic issues, including molecular cancer experts opining about genetic alterations pre-existing before manifestation of a tumor. Resolution of these issues will be especially challenging because much less is known about females’ “defense systems” as opposed to airborne exposure through the lungs.

The science of ovarian cancer cosmetic talc claims is likely different from asbestos claims, but that will be a question for the experts and courts. Because plaintiffs will have an easy time in most cases demonstrating exposure to consumer products (e.g., for baby powder, theoretically from birth to present), both kinds of cosmetic talc claims generally would be linked together based on length and type of exposure.  .

Hiding Data That Showed Potential Dangers: The standard complaints utilized in the St. Louis cases allege that J&J knew about the risks of ovarian cancer as early as 1971. The complaints allege that “nearly all” of 23 known epidemiologic studies on cosmetic talc reported an associated risk with ovarian cancer, and assert alleged instances in which J&J “knowingly released false information” about the safety of talc in coordination with the Cosmetic Toiletry and Fragrance Association. Media reports suggest that, in post-trial interviews, jurors indicated that these allegations were part of the motivation for the large punitive damages award.

Question: Will industrial and cosmetic “personal care” products made with talcum powder and the emerging confirmed links to “asbestos” and “mesothelioma” become the new long term mass tort resulting in thousands of complaints against nontraditional and unsuspecting defendants? Such as the Los Angeles County, California Superior Court lawsuits where a 2015 “cosmetic talc” trial resulted in an $18 million verdict award based on “cosmetic talc exposure in a barbershop” against Old Spice, Clubman, Kings Men and Mennen Shave Talc, as well as a prior 2015 trial verdict of $13 million against Colgate-Palmolive for exposure to talc in its baby powder.

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Jury Awards $4.1 Million in Asbestos Death of Wisconsin Electrician

pleural-mesotheliomaA St. Louis jury has awarded $4.1 million in damages to the widow of an electrician from Westfield, Wisconsin, who died of complications from mesothelioma, a deadly lung cancer caused by exposure to asbestos.

Longtime electrician Keith Urbach died in 2012, about six months after he was diagnosed with mesothelioma. Jurors in the 22nd Judicial Circuit Court returned their verdict Jan. 25 following a one-week trial and nine hours of deliberations. They found that The Okonite Company of Ramsey, New Jersey, was 5 percent liable for Mr. Urbach’s death. Trial testimony showed that he worked with a fixture wire manufactured by Okonite that contained asbestos.

Mr. Urbach worked as an electrician from 1963-2002 for several employers in Wisconsin and Illinois. His death so soon after diagnosis limited his attorneys’ ability to produce evidence of Mr. Urbach’s exposure to asbestos, although they were able to find co-workers who could testify that he had several possible sources of exposure, including through Okonite’s fixture wire, said Jay Stuemke, attorney for the family and a shareholder in Dallas-based Simon Greenstone Panatier Bartlett P.C.

Jurors determined that other companies were liable for the other 95 percent of his exposure. Notably, jurors assigned no responsibility to Urbach.

Keith Urbach spent 40 years working hard to support his family, and it’s beyond tragic that his labors were repaid with an early and painful death,” Mr. Stuemke says. “He and Jean had looked forward to many more years enjoying their children and grandchildren, but that time was taken away from them by the unforgivable negligence of companies like Okonite.”

In addition to Mr. Stuemke, Mrs. Urbach was represented by Simon Greenstone associate Hutton Sentell of Dallas.

Simon Greenstone Panatier Bartlett is a nationally recognized trial law firm with a reputation for creative and aggressive representation of clients in a wide variety of catastrophic personal injury matters nationwide. For more information, visithttp://sgpblaw.com.

The case is Jean Urbach v. The Okonite Company, No. 1122-CC-10636.

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Upstate New York Trial Court Upholds $4 Million Jury Verdict for Mesothelioma Victim

 pleural-mesotheliomaNEW YORK, NY — A $4 million verdict in favor of a man who was exposed to asbestos while working as an internal grinder at a tool plant will stand, according to a Nov. 24 ruling by the New York Supreme Court for Oneida County, the law firm of Belluck & Fox, LLP announced today.

Attorneys from Belluck & Fox, LLP represented the plaintiffs in the case, which focused on liability for Nicholas Dominick’s exposure to asbestos that caused him to develop mesothelioma, a deadly form of cancer caused by asbestos exposure.

“Our client suffered greatly because of the presence of asbestos fibers in his workplace,” said Brittany Russell, the New York mesothelioma attorney who represented the plaintiff. “We are pleased for our client that the judge in this case properly upheld the jury’s verdict and substantial award of damages.”

Dominick worked as an internal grinder at the Chicago Pneumatic tool manufacturing plant from 1968 to 1973. During the course of his work there, Dominick was exposed to bags of asbestos and asbestos board supplied by Charles Millar Supply Co. The defendant, Pacemaker Steel & Piping Co., is Charles Millar’s successor in interest.

The jury in the case found Pacemaker 30 percent liable for the injuries Dominick suffered when he developed mesothelioma decades later due to his asbestos exposure at work. Jurors awarded the plaintiff $4 million.

Pacemaker asked the trial court to set aside the jury’s verdict or order a new trial on all issues. The trial court rejected that motion in its Nov. 24 order. The case is Dominick, et al. v. A.O. Smith Water Products Co., et al., No. CA2014-000232 (N.Y. Sup. Ct., Oneida Cty.).

The court rejected Pacemaker’s argument that it should have been allowed to call eight co-worker witnesses, finding that testimony from all eight would have been cumulative. The court also rejected Pacemaker’s arguments regarding causation, ruling that testimony from the plaintiff’s expert witness “afforded a rational basis for the jury’s verdict.”

The court also upheld the jury’s allocation of fault and award of damages. “There was significant evidence in the record as to Plaintiff’s past and future pain and suffering due to his mesothelioma,” the court said.

Brittany Russell, the New York City asbestos exposure attorney who represented the plaintiff, said the decision serves as reminder of the importance of legal assistance in mesothelioma cases. “The outcome of this case emphasizes how critical it is for victims of mesothelioma and other diseases caused by asbestos exposure to seek well qualified legal counsel to pursue a claim against the responsible parties,” he said.

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