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“Cosmetic Talc Litigation: Two Emerging and Distinct Mass Torts,” ABA Toxic Torts and Environmental Law Committee Newsletter

“Cosmetic talcum powder products have been on the market in the United States for over 100 years,” say Jason A. Botticelli and Joseph J. Welter, members of Goldberg Segalla’s Toxic Torts and Environmental Practice Groups — but the battle over the potential health effects of talcum products has only recently surged to the forefront of toxic torts litigation.

Writing for Toxic Torts and Environmental Law Committee Newsletter, an American Bar Association publication, Jason and Joe go on to explain that, though plaintiffs’ attorneys speak broadly of “talc litigation,” there are two distinct types of claims, both of which deserve analysis.

“The cases garnering more of the attention relate to the hypothesis that use of talcum powder in the perineal area causes ovarian cancer. The other cases are based on the theory that inhalation of cosmetic talc contaminated with asbestos causes more traditional asbestos-related diseases,” they write. In their article, they explain the uses and regulation of talc products and highlight the latest research on the health effects of talc products before analyzing important cases from both types of talc litigation.

The two types of litigation, Jason and Joe argue, “are on distinctly different paths.” The asbestos-contaminated talc cases “will run their course” like typical asbestos cases. The cosmetic asbestos-contaminated talc cases “are more defensible,” which means the trial of more cases is likely — although the plaintiff pool is narrow. “In the final analysis, there is nothing talc manufacturers can do today other than to manage the litigation to its eventual conclusion,” they write.

Talc and ovarian cancer litigation, though, will proceed differently. Sold for more than a century, talc products are still on the market, and the FDA “has taken no action to suggest the products should be recalled or warnings be added.” The direction of this type of talc litigation will depend on further scientific research and on appellate rulings over the next few years. “With a potential plaintiff pool of 22,000 women being diagnosed with ovarian cancer each year,” Jason and Joe write, “all indications are that this litigation may be in its infancy.”

  • “Cosmetic Talc Litigation: Two Emerging and Distinct Mass Torts,” American Bar Association Toxic Torts and Environmental Law Committee Newsletter, Summer 2017