In September, 2016 the firms of LSP Group, Innovative Science Solutions, and Assured Research collaborated to produce our second, in-depth and multidisciplinary analysis of the changes to and new directions in asbestos litigation.
Our work included detailed thoughts on the scientific and legal developments, such as risks of more claims involving asbestos and cancers other than mesothelioma. In that context, we specifically focused on the possibilities related to claims involving ovarian cancer and the risks and science argued by litigants regarding use of talcum powder in both in industrial settings and for cosmetic uses. An overall point was that there many more “other cancers” than there are mesotheliomas, and that the numbers of “other cancer” claims could well rise. If the claims rise, defense costs for insurers also would rise due to the volume of claims and the need to come to grips with new science and related new case law.
We were correct that claims might well rise regarding ovarian cancers. At that time, we did not try to forecast how many new claims would be filed, but we pointed out the possibilities for MDL litigation and more claims filings. Both have now occurred; Johnson & Johnson (JNJ) reported some 1,400 talc cases at the time of our report – now over 9,000 (1Q 2018 10-Q). One of the factors we emphasized then, and repeat now, is that there are about 22,000 ovarian cancers annually in the U.S., compared to about 3,300 mesotheliomas.
As to financial costs, we predicted increasing defense expenses for primary insurers. On that topic, we recently learned that reinsurance industry stalwart Berkshire Hathaway specifically excluded talc-related claims from the asbestos reinsurance cover it sold to Hartford Financial Services with effect at year-end 2016. Apparently, we were not the only ones thinking about defense costs and more claims, and one wonders what was done (or not done) in similar reinsurance deals involving Berkshire and asbestos exposure.
Moving to today, it is inevitable (in our view) that talc litigation will gain further momentum from the recent awards of very large amounts of compensatory and punitive damages. Certainly, there is a reasonable probability that the awards will be reversed on various procedural grounds, such as recent SCOTUS rulings limiting personal jurisdiction and Missouri rules on joining cases together. That said, the massive verdicts send a message that will encourage more and more investment in the litigation industry related to asbestos.
From what we see, talc litigation is gaining momentum as to both “cosmetic use” and industrial use. By number of claims, the preponderance of today’s litigation is focused on cosmetic (consumer) uses of talcum powder. Those may be personal uses (by both men and women) and others may make claims involving alleged exposures while diapering children. In addition, industrial use claims also matter because as we described in our study, talc has had and continues to have industrial uses as a filler, coating or dusting agent, pigment and extender in plastics, paint, ceramics, and roofing materials, among other products. Hundreds of thousands of employees work at large businesses using talc in their industrial process.
Both cosmetic use and industrial use have a common point. The common point is that the scenarios are ones that offer plaintiff lawyers and others in the industry the chance to invest in and reuse fairly simple information about talc and asbestos. That business model can be lucrative for the claiming industry and expensive for the insurance industry. These common points also make it easier to advertise to and recruit potential plaintiffs.
We have re-released the talc sections of our 2016 report in light of this burst in legal activity. Complete the form below to download a complimentary copy of the talc sections of the report. Readers with questions or those wanting more information should please contact any of the authors at the links following:
We have re-released the talc sections of our 2016 report in light of the burst in legal activity. Complete the form below to download a complimentary copy of the talc sections of the report.