The asbestos/talc allegations and litigation/jury verdict history are scary to any company who may have been involved in talc-containing products. Verdicts as high as 4.7 Billion U.S. Dollars have been handed down by juries in St. Louis Missouri, New Jersey and California. To date reported plaintiffs are consumers of talc containing powders and cosmetics and the defendants have been limited to cosmetic and industrial talc manufacturers, suppliers, distributors, etc.
The cases arise as a result of the talc mines in the USA having ore which contains asbestos. Talc (magnesium silicate) and asbestos are formed by the same geological processes. The most common asbestos contamination comes from Tremolite, a form of amphibole asbestos. Tremolite has not been mined commercially and its presence in talc went unnoticed for a long time and cannot be removed from the talc. Concerns regarding the potential contamination of talc were first raised in the 1960s. Not all talc mines are contaminated with asbestos and so defendants’ and plaintiffs’ counsel alike try to dig down to determine the source of the talc and hope for the best. The underlying research as to the source of the talc has created a cottage industry in geo-research.
Talc use is widespread and not confined to cosmetic products although this are most obvious.
So far the most highly reported cases have involved Johnson & Johnson's baby powder. In the USA this cases are dealt with as toxic torts and the cases are decided by jury. The judge's role in the proceedings is not to determine liability, causation or damages as those decisions are left to the jury. The judge is charged with determining what evidence should be allowed to be presented to the jury. What evidence is presented at trial is a key issue in these cases. Discovery (disclosure) is an extensive exercise and internal corporate documents may be presented dating back to the incorporation of the defendant and industry knowledge can pre-date a corporation’s existence. Documents, which may have been written many years ago, are often presented by plaintiff's counsel and read by the jury in light of modern dy knowledge and assessment of risk. Likewise expert testimony is presented to the jury who are asked to consider complex matters of medical causation as well as digest and interpret detailed and often contradictory scientific arguments. The extent of the discovery and the complexity of the scientific matters inevitably means that counsel for the plaintiffs will often rely on emotive arguments to persuade the jury to find in their client's favour.
There are presently 2 strands the talc litigation: (1) asbestos contamination leading to mesothelioma and (2) talc causing ovarian cancer.
Talc and Mesothelioma
Talc itself is not yet considered a cause of mesothelioma. The issue arises from the contamination of the talc with asbestos. The causative connection between amphibole asbestos (of which Tremolite is a type) and mesothelioma is not in question scientifically. The fact that some talc productions, prior to the mid-1970s, may have contained asbestos is again not in dispute. The issue in the cases against Johnson & Johnson stems from the fact that Johnson & Johnson are alleged to have known of the contamination of the talc but to have either ignored it and/or created so-called scientific tests for detection of asbestos which were inadequate and/or reflect a conscious effort to withhold knowledge of the risks whilst promoting the product as safe.
View from the UK:
There are no operational talc mines in the UK. The main talc producers the USA, China, and France. In order to bring any claim in the UK a claimant would need to establish the origin of the talc used and that the specific talc was contaminated with asbestos.
The use of talc in various industrial processes could mean that employees were exposed to asbestos during the production process. Following the decision in McDonald v National Grid it could be argued that if talc were used say in the production of plastics that this could be considered as "mixing" for the purposes of the Asbestos Industry Regulations 1931. Talc as a respirable dust would be covered by ss.47 and s.63 of the Factories Acts 1937 and 1961 respectively.
Regulation 2 of the Asbestos Regulations 1969 defines asbestos as
"any of the following minerals, that is to say, crocidolite, amosite, chrysotile, fibrous anthophyllite and any mixture containing any of the said minerals"
It would be arguable therefore that Tremolite would therefore not be covered by the Asbestos Regulations 1969 presumably on the basis that the commercial use of Tremolite was not anticipated. The definition in the 1969 Regulations differs to the 1931 Regulations which is more expansive defining asbestos as "any fibrous silicate mineral, and any admixture containing any such mineral, whether crude or crushed or opened".
Given the evidential burden on a potential claimant to show the provenance and subsequent contamination of the talc together with establishing a defendant's knowledge of the contamination and the risks associated with it, the risks of claims from contaminated talc in an employment context is limited.
Talc and Ovarian Cancer
As with the other cases discussed the evidence is presented to a jury in the US cases. Much was made of the fact that asbestos bodies were found in the tumours. However, There is no conclusive evidence that talc can cause ovarian cancer although there is a known small increase in the risk of ovarian cancer when using talc. The American Cancer Society says:
"Many studies in women have looked at the possible link between talcum powder and cancer of the ovary. Findings have been mixed, with some studies reporting a slightly increased risk and some reporting no increase. Many case-control studies have found a small increase in risk. But these types of studies can be biased because they often rely on a person’s memory of talc use many years earlier. One prospective cohort study, which would not have the same type of potential bias, has not found an increased risk. A second found a modest increase in risk of one type of ovarian cancer.
For any individual woman, if there is an increased risk, the overall increase is likely to very be small. Still, talc is widely used in many products, so it is important to determine if the increased risk is real. Research in this area continues."
The NHS has provided a summary of the scientific evidence which can be found here.
The charity Overcome has produced a Fact Sheet (#14) regarding the risks associated with talc and ovarian cancer which concludes:
"We still do not know what really causes ovarian cancer. But it is likely to be a combination of many different inherited and environmental factors, rather than one cause such as talc. It is also important to remember that, out of the millions of women in England and Wales, many of whom use talc, only a very small number will develop ovarian cancer each year. So even if talc does increase the risk slightly, very few women who use talc will ever get ovarian cancer. Also, if someone has ovarian cancer and used talc, it seems unlikely that using talc was the reason they developed the cancer."
Speaking on the BBC World Service programme Health Check Professor Paul Pharaoh, Professor of Cancer Epidemiology at University of Cambridge said that:
"I am a little bit mystified as to how a jury with a dispassionate review of the evidence would come up with the verdict that they did because I don't see how it is possible based on what we know about the scientific data to decide that in any one woman her previous use of talcum powder was an important cause of her ovarian cancer."
In respect of the studies relied on the talc cases Professor Pharaoh said:
"…studies consistently find an association between previous use of talcum powder in the genital area and ovarian cancer. A weak association. It's essentially a correlation. Correlation doesn't mean causation. One of the bits of evidence that is often used is whether or not there is a dose response, in other words whether people who have used the talcum powder for a longer period of time or used it more often would be expected to be at higher risk and there is no really good evidence suggesting that dose response exists."
In terms of employment claims the use of talc and its application to the genital area would be extremely limited and any risk of such claims is negligible.
This article is also authored by Carolyn O'Connor Partner Wilson Else