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?

John Ray

John Ray has been a leading consultant to the Mass Tort industry for over a decade. His unique skill sets make him well suited to both teaching and consulting in the Mass Tort arena. As a 21-year old graduate of Brenau University in Atlanta, John graduated Magna Cum Laude and started a pharmaceutical and medical device company right out of school, selling it in an eight-figure deal when he was 35. John’s tenure in the pharmaceutical and medical device field allowed him to gain an in-depth understanding of FDA regulatory matters, as well as, a thorough understanding of the science and epidemiology related to gaining FDA approval to market pharmaceuticals and medical devices. John’s inside knowledge of how “Big Pharma” operates gives him a unique perspective and skill sets that are very useful to Mass Tort plaintiff firms. When John brought his “insider knowledge” and business acumen to the Plaintiff Mass Tort Space, one of the first things he recognized was a lack of common terminology and well defined metrics. John realized that firms were expressing the same concepts, but were not using the same terminology. As a result, John set out to define common terms and create methods for formulating important metrics for use by Mass Tort firms when evaluating litigations. The terminology and metrics John Ray developed are now commonly used by major Mass Tort Law firms. John is highly sought after and writes White Papers about both current and emerging torts, which are highly coveted in the industry. The accuracy of John’s analysis of emerging and ongoing litigations is unmatched. The fact that John not an attorney has proven to be an asset. John thinks like a business person, employing creative problem solving and possesses an extensive set of business skills and industry specific knowledge. He assists Mass Tort firms in making sound business decisions before and during any litigation they are involved in or are considering becoming involved in. John is an expert at evaluating cases and looks at each tort as an individual “investment,” which can be quantified resulting in risk mitigation for you and your firm.

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