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Small Talc Companies Eye J&J Verdict as ‘Existential Threat’

July 18, 2018, 11:06 AM

The $4.69 billion ovarian cancer jury verdict against Johnson & Johnson could—if upheld—drive smaller talc companies to fight these cases tooth-and-nail in order to stay alive, defense counsel told Bloomberg Law.

“The plaintiffs succeeded for the first time blaming asbestos for ovarian cancer, which results in 700 percent more deaths annually than mesothelioma,” Stephen Hoke with Hoke LLC in Chicago said.

Hoke is a defense attorney focused on talc and asbestos insurance.

“This threat is existential,” and “a settlement strategy will only prolong the inevitable,” he said.

“If this doesn’t die in the appellate courts I expect to see the defendants mount aggressive defenses,” Hoke said.

‘Disastrous Liability’

But plaintiffs’ attorneys say the verdict shows that J&J’s strategy of fighting out every talc case has backfired, and that the results will likely encourage smaller players to settle.

“I think it will drive settlements in other talc suppliers,” asbestos plaintiffs’ attorney Mark Lanier with Lanier Law Firm in Houston, told Bloomberg Law.

J&J controls 75 percent of the cosmetic talc market, but several other smaller companies also face claims over their talc products, including Bausch Health Co., which now owns Shower-to-Shower, Colgate-Palmolive, Gold Bond, Avon, Chanel, Revlon, Imerys, Mennen, and Old Spice.

Plaintiffs’ attorney Nate Finch with Motley Rice in Washington said the smaller talc companies should be thinking about settling the claims against them in light of the J&J verdict.

“Johnson and Johnson has decided to try every case,” he said.

“That worked out OK for the tobacco industry, at least from 1955 to 1990 or so, but it has led to disastrous liability for almost every asbestos defendant that tries to do that,” Finch said.

Get Out in Front

A lot will turn on the results of J&J’s appeal, Distinguished Emeritus Professor Jean Eggen at Widener University Delaware Law School, Wilmington, Del., told Bloomberg BNA.

Eggen specializes in toxic torts, civil procedure and science and the law.

“If the verdict stands, that would be a reasonable time to get out in front of the pending and oncoming litigation by settling cases before the litigation gets ahead of them,” she said.

“By contrast, Colgate-Palmolive has been settling talc cases. These decisions, of course, are business decisions as to how to manage the costs of litigation, and companies have different approaches, depending on their bottom line and risk aversion,” Eggen said.

“Smaller companies, with more at stake, may choose to settle without waiting for the appellate courts,” she said.

‘Pattern Developing’

Asbestos plaintiffs’ attorney Chris Panatier with Simon Greenstone Panatier PC in Dallas declined to predict the impact of the J&J verdict on settlements, but said the parties are beginning to get a better sense of the strength of their cases.

As “a widespread tort makes its way through the court system, it becomes familiar,” Panatier said.

“The outcomes become more predictable as a general rule in terms of win/loss and damages,” he said.

Eventually “the court system has vetted the cases enough times to give both sides good data as to where, when and in what amounts settlements should occur,” Panatier said.

Though it is still relatively early in cosmetic talc litigation, “there is a clear pattern developing,” he said.

Shower-to-Shower

Bausch Health defended the safety of its products, including Shower-to-Shower, in a statement.

“The scientific and medical consensus is that these products do not cause ovarian cancer,” the company said.

And “nearly all” of the suits allege use of Shower-to-Shower prior to 2012, when Bausch Health acquired it

“Given our limited role and the strong legal, factual, and scientific defenses, we do not believe claims will be established successfully against our company,” the statement said.

Valeant Pharmaceuticals acquired J&J’s Shower-to-Shower body product in 2012. Valeant changed its name to Bausch Health in July 2018.

J&J declined to comment. A spokesman for Colgate-Palmolive didn’t return requests for comment.

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

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