A landmark asbestos case verdict against a talc supplier has withstood appeal in New Jersey, where the appellate court affirmed a $1.6 million judgment in favor of the plaintiff, who was allegedly exposed to the asbestos-contaminated talcum powder as a child by his father, an employee at a cosmetics company warehouse.
The defendant firm in Kaenzig v. Charles B. Chrystal Compan,y Inc. was the supplier of raw talcum powder (talc) allegedly contaminated with asbestos. Specifically, the products were used to create talc powder for Desert Flower and Old Spice.
The plaintiff alleges he was exposed to the asbestos during the first eight
years of his life through talc powder that remained on his father’s
clothing. The defendant supplier relocated its operations out-of-state
in 1975, and after that the plaintiff said he was not exposed to other asbestos.
Although the plaintiff, when he grew up, began working in fiberglass insulation, he contends by that time, the late 1980s, the dangers of asbestos were well-known within the industry and asbestos use in insulation at that point had been mostly discontinued. Furthermore, he noted he was trained to recognize asbestos, and in working exclusively in residential settings, he never removed asbestos. If asbestos was identified, another company would be called in to conduct appropriate removal before he would start work.
In late 2011, the plaintiff was diagnosed with peritoneal mesothelioma.
Although talc, a naturally occurring mineral, does not inherently contain asbestos, evidence at trial revealed geological surveys of the three mines where defendants obtained their talc – one in Italy, one in Alabama, and one in North Carolina – did in fact contain asbestos. The defendants did not dispute this fact.
The trial judge would not allow evidence of the plaintiff’s expert witness testing of “vintage” products produced by defendants, but the fact that the mines where the talc was taken contained significant levels of asbestos proved powerful.
One expert witness for the plaintiff testified that even small quantities of asbestos in talc could result in an injurious level of exposure. First of all, one 50-pound bag of talc containing just 1 percent asbestos would yield one-half pound of asbestos. That would amount to trillions of fibers of asbestos.
What’s more, talc would allow the easy release of asbestos into the air because it is inherently friable. Asbestos that is airborne is by far the most dangerous.
Plaintiff experts further opined that no level of asbestos exposure is safe. They outlined number of studies showing “bystander exposure” or “take-home exposure” – i.e., that which is brought home by a worker to their family members – had resulted in development of diseases like asbestosis and mesothelioma in those family members, even when the individuals hadn’t worked directly with the toxin. Furthermore, there is some evidence to suggest children exposed to asbestos at a young age are more at risk for developing mesothelioma than adults who are exposed (although it’s certainly dangerous for people of all ages).
The jurors sided with the plaintiff, awarding $1.6 million in compensatory damages, to be paid by the talc supplier. Within that award was $200,000 for loss of consortium suffered by the plaintiff’s wife.
The defendant appealed, arguing the “vintage product” testing results should have been turned over to the defense, even if not used at trial. Other arguments indicated certain testimony by expert witnesses and former employees was improper and prejudicial and that the plaintiff did not prove a failure to warn resulted in his injuries.
The appeals court affirmed the award, finding no prejudice, no abuse of discretion, and no trial court error.
Help for mesothelioma victims can be found at The Ferraro Law Firm by calling 1-800-275-3332. Offices in Miami and Washington, D.C.
Landmark Asbestos Verdict Over Cosmetic Talc Survives Appeal, March 27, 2015, By Mary Pat Gallagher, New Jersey Law Journal
Kaenzig v. Charles B. Chrystal Company Inc., March 4, 2015, New Jersey Court of Appeal
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Gene Mutation Argued as Mesothelioma Link by Defendants, March 17, 2015, Florida Mesothelioma Lawyer Blog