Last year, a St. Louis city jury sent shock waves across the world, awarding 22 plaintiffs nearly $5 billion in compensatory and punitive damages in a lawsuit against Johnson & Johnson over claims its asbestos-contaminated talcum powder caused ovarian cancer in women who used the company’s product for years in the case of Ingham v. Johnson & Johnson, No. 1522-CC10417 (Mo. Cir. Ct. St. Louis City July 12, 2018). Prior to trial, Imerys Talc America Inc., a co-defendant supplier of talc to Johnson & Johnson, settled plaintiffs’ claims for at least $5 million.
While previous ovarian cancer trials hinged on arguments that talc itself is carcinogenic, plaintiffs in Ingham argued their cancer was caused by asbestos particles mixed in with the talc. The impact of this verdict and similar previous decisions across the country has been damaging enough to prompt talc supplier Imerys Talc America Inc., to file for Chapter 11 bankruptcy, citing a lack of financial clout to defend lawsuits alleging that Imerys’ talc caused ovarian cancer or asbestos-related mesothelioma.
To date, the defendants in ovarian cancer-related lawsuits have typically consisted of manufacturers and suppliers of talcum powder products. However, as Imerys Talc America Inc. and potentially others seek bankruptcy protection, questions arise as to future targets in ovarian cancer litigation. Excerpts from the Ingham trial may provide insight into potential answers.
Over defendants’ objection, lead Plaintiffs’ counsel, Mark Lanier, described a study in the organs and placenta of stillborn infants finding asbestos fibers to suggest transplacental transfer of fibers during his opening statement in Ingham. This theory suggests a transfer of asbestos and other fibers in humans since the placenta is the only route of communication between the fetus and the outside environment. Outside of Plaintiffs’ opening statement, this theory was not addressed at trial. However, testimony was elicited not only to plaintiffs’ perineal use of talc-based products, but also testimony that plaintiffs breathed dust emitted from the usage at trial. Ultimately, the St. Louis city jury sided with plaintiffs’ argument that defendants’ talc-based products directly caused or contributed to their ovarian cancers.
Looking ahead, there may be an entirely new pool of plaintiffs (women diagnosed with ovarian cancer) if a jury believes that breathing asbestos fibers directly causes or contributes to an individual’s ovarian cancer. A potential shift in asbestos litigation may ensue, as reporting data has shown a downward trend in the total number of asbestos lawsuit filings. In 2018, asbestos filings were down approximately 11% from 2017, which was an overall 8% decrease in nationwide filings in 2017, compared to 2016. Between 2015 and 2017, the percentage of “traditional plaintiff” filings (male plaintiffs with primary occupational asbestos exposure) has accounted for around 85% of filings. While the total number of asbestos lawsuit filings has decreased, the percentage of female primary occupational plaintiffs has actually slightly increased between 2015 and 2017 (from 8.0% of yearly plaintiffs to 10.9%). Plaintiffs alleging only secondary exposure made up 4% of total filings in 2017. This group of plaintiffs is largely made up of wives and children of the male asbestos workers. In 2017, 87% of these “only secondary exposure” plaintiffs were female, and the disease mix for this exposure type was fairly consistent with that of the primary/occupational exposures in 2017.
Ovarian cancer lawsuits to date have involved only a few talcum powder manufacturers and suppliers, led by Johnson & Johnson. However, in asbestos litigation, over 10,000 distinct defendant entities were named in complaints in 2017 alone. Similarly, while estimations show that about 3,000 people are diagnosed with mesothelioma each year in the United States, the American Cancer Society predicts that there will be approximately 22,240 new cases of ovarian cancer diagnoses and approximately 14,070 ovarian cancer deaths annually in the United States.
Ultimately, an introduction to new theories and claimants in asbestos-related litigation hinges on the viability of such claims. The transmigration theory for asbestos exposure will likely be strengthened if ovarian cancer claimants display evidence of asbestos exposure. Scarring of the lungs, known as pleural plaques, is the most common form of asbestos disease. Plaques are non-cancerous, but serve as a common marker for an individual’s asbestos exposure in traditional mesothelioma or asbestos-related lung cancer lawsuits. Thus, a jury is more likely to believe the transmigration theory if an ovarian cancer claimant shows pleural evidence of asbestos exposure.
 Id. at 16.
 Id. at 18.
 Id. at 9.
 Torre LA, Trabert B, DeSantis, et al. Ovarian Cancer Statistics, 2018. CA: Cancer J Clin. 2018;68(4):284-296.