Understanding the Expanding Talcum Powder and Asbestos Litigation

The original Asbestos litigation began with a small number of defendants and grew to become the largest product liability litigation in history. MTN believes the Talcum Powder litigation may expand in similar manner. This article will focus on potential retailer liability in the expanding Talcum Powder litigation.

If you did not read our prior article, click here to get up to speed: Will the Recall of J&J Baby Powder Breathe New Life into Asbestos Litigation?

Attendees of the Mass Tort Nexus Four Days to Mass Tort Success Course (Friday, November 8 – Monday, November 11, 2019)  will receive and in depth presentation as well all of the information needed, including Qualifying and Disqualifying criteria, to start accepting Talcum Powder Mesothelioma Cases as well as other types of Talcum Powder clients.  Contact Anne Marie Kopek by email at annemarie@masstortnexus.com, or call her at 954-837-3432 for more information. You may also request course information by filling out the form at https://www.masstortnexus.com/Course/Enroll.

 

RECENT BACKGROUND

On October 18, 2019, the FDA announces that Johnson and Johnson has recalled a single lot of its Talcum powder after https://www.fda.gov/news-events/press-announcements/baby-powder-manufacturer-voluntarily-recalls-products-asbestos

“Since 2018, the FDA has been conducting an ongoing survey of cosmetic products for asbestos and to date has tested approximately 50 cosmetic products. As part of this testing, two samples of Johnson’s Baby Powder were tested: one sample from lot #22318RB was found to be positive for asbestos a second Johnson’s Baby Powder sample, lot #00918RA, tested negative for asbestos.”

 

LIVE TESTING HAND GRENADES

The FDAs method of testing sample from individual lots of Baby Powder is akin to pulling the pin on a sample of hand grenades from a box, and determining that the entire box are all “duds” because no grenade from which the pin was pulled blew up and killed everyone in the room.

The only way to be certain that any given bottle of baby powder sitting on a retail shelf or on the bathroom counter of a Talc user is completely free of asbestos would be to test every single bottle.

 

FEELING LUCKY?

 

RETAILERS PULL SOME TALCUM POWDER FROM SHELVES

After the FDA announced the single lot voluntary recall of one lot of J&J Talcum Powder, major retailers, including Walmart, Target, CVS and Right aide began pulling 22-ounce bottles of J&J Talc from their shelves. The recall involved this size bottle of Talcum Powder.

https://www.cnbc.com/2019/10/24/cvs-pulls-all-jj-22-ounce-baby-powder-from-shelves-after-fda-finds-sub-trace-levels-of-asbestos.html

 

HOW DO THESE RETAILERS KNOW THAT OTHER SIZE BOTTLES DO NOT CONTAIN ASBESTOS?

The short answer to the above question is that retailers have no means by which to know if the Talcum Powder remaining on their shelves, do not also contain asbestos.

Although retailers are already potentially liable under a “Strict Liability”  theory form simply conveying these products into the stream of commerce, one could argue, that with all that is now known, these retailers crossed the line into “negligent liability” when they failed to pull all Talcum Powder products from

Putting Aside the evidence that Talc itself can cause cancer, including but not limited to Ovarian Cancer, this article will focus on why every retailer that offers Talc Products should know that it is more likely than not, that every bottle of Talc they sell, contains asbestos and why retailers should assume the foregoing to be true.

 

Understanding the Link Between Talc and Asbestos

Asbestos is a commercial name assigned by industry to a group of minerals. The most common type of asbestos found in commercial products is Chrysotile Asbestos.

Both Talc and Chrysotile Asbestos are formed from the same four basic elements. Magnesium (8th most common element in the Earths rust) , Silicon (Most Common Element in the Earths crust)  Hydrogen and Oxygen (in the form of water).

The elemental structure of Talc and Chrysotile Asbestos are nearly identical.

Talc Mineral: Mg3Si4O10(OH)2

Chrysotile Asbestos:  Mg3Si2O5(OH)4 (most common type of asbestos in commercial use)

All that is required for given Talc deposit to initiate formation of asbestos as well, is a change in the temperature of the water supply necessary for the formation of both minerals. It may be useful to think of the earth crust as a “mineral factory”. The same individual factories (deposits) that produce Talc can also produce Chrysotile Asbestos, all that is required for the naturally occurring Talc factor to being producing Chrysotile Asbestos is for someone (something) to change the thermostat.

Talc and Chrysotile Asbestos deposits form over thousands and in some cases, over millions of years. Earth is a highly thermodynamic planet, the temperature of any given water supply found in the earths crust if far more increase and decrease over these long periods of time versus remaining stable.

In that it is unlikely that any naturally occurring Talc deposit would not also contain some asbestos. Combine the foregoing with the fact that there is 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.

Given that the foregoing is basic science and geology, easily understood by any high school student, it would be difficult for any retailer of Talcum Powder products to claim ignorance of the fact that it is highly probable that any given bottle of Talcum Powder on their shelves, likely contains Asbestos.

Which Grenade is live and which one is a dud?  Nobody knows. Would you want to be the one to pull the pin and find out?

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Will the Recall of J&J Baby Powder Breathe New Life into Asbestos Litigation?

Will the Johnson and Johnson Talcum Powder Asbestos issue breath new life into “Asbestos Mesothelioma Practice Area”? The events of the past few days may lead one to believe that it is very possible that the need for plaintiffs lawyers to represent mesothelioma victims who allege their cancer was caused by Johnson and Johnson Talcum Powder, may breath new life into a practice area that was in decline.

On October 18, 2019 the FDA Announced” Johnson’s Baby Powder voluntarily recalled after testing positive for asbestos: Johnson & Johnson voluntarily recalled one lot of baby powder, after a sample tested positive for asbestos. The recalled product is Johnson’s Baby Powder Lot #22318RB. The lot number can be found on the back of the bottle, directly underneath the cap. https://www.fda.gov/cosmetics/cosmetics-recalls-alerts/fda-advises-consumers-stop-using-certain-cosmetic-products.

The FDA is inspecting other lots of Johnson & Johnson talcum powder and MTN expects further recalls to be forth coming.

Does the Problem End With A Single Lot?

Johnson & Johnsons problems are not likely to end with one or even a few recalled lots of baby powder.

It may (likely will be) possible to prove that Johnson & Johnson products, sold at specific retail locations over the past few decades contained asbestos. So, no, it is not likely that Johnson & Johnsons problems arising from a small number of recalled lots will represent the extent of their potential liability.

Would You Like to Be Ahead of the Curve This Time?

Attendees of the Mass Tort Nexus Four Days to Mass Tort Success Course (Friday, November 8 – Monday, November 11, 2019)  will receive and in depth presentation as well all of the information needed, including Qualifying and Disqualifying criteria, to start accepting Talcum Powder Mesothelioma Cases.  Contact Anne Marie Kopek a by email at annemarie@masstortnexus.com, or call her at 954-837-3432 for more information. You may also request course information by filling out the form at https://www.masstortnexus.com/Course/Enroll.

Qualifying (or disqualifying) Talc Mesothelioma cases will be particularly challenging given that the disqualifying factors are more numerous that the qualifying factors however, considering the likely jury verdicts that may arise from meritorious, Talc Mesothelioma cases are worth the extra effort. The average Mesothelioma verdict comes in at approximately $2.4 million and the largest Mesothelioma Verdict Mass Tort Nexus is aware of to date was $250 million. Given the b

Not all-natural Talc deposits contain asbestos. The geological circumstances under which the talc was formed, determine whether any given Talc deposit also contains asbestos. Mass Tort Nexus will provide November Course attendees with the information they need to determine whether an individual potential client used Talc likely sourced from a mine containing asbestos.  In most cases, it should be possible to determine if an individual was exposed to Talc containing asbestos even if the exposure occurred decades in the past.

Does the Stock Market Think the Problem Ends with a Single Lot?

On October 8, the market got the news that Johnson & Johnsons was hit with an 8-Billion-dollar verdict, the pharma giants stock took a down word turn.

On October 15th Johnson & Johnson announced 3rd quarter results that exceeded market expectations and their stock began to trend upward.

On October 18th, the FDA announces the recall of a single lot of Johnson & Johnson Talcum Powder.  By 3:50 pm the Pharma Giants stock had dropped by 5.89% and by 4:00 (closing bell) the stock had sunk by 6.23% to $127.72 per share as compared to the previous day’s closing price of $136.18.  If we have our math right, Johnson & Johnson took a hit to their market capitalization of around $18 billion, in a single day, after the FDA recall of a single lot of Johnson and Johnson Baby powder due to asbestos found in the individual lot.

So, no, it does not appear that the market believes that Johnson and Johnson’s Talc/ Asbestos problem begins nor ends with a single recalled lot and if you are a plaintiffs lawyer, you may want to get ahead of the curve on the new breath of life that may have been given to the asbestos mesothelioma practice area.

 

 

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