WILMINGTON, Del. (Legal Newsline) - A Delaware court blocked American International Industries, a closely held cosmetics maker that is being sued over its Clubman talc brand, from dragging Clubman’s defunct former owner into asbestos lawsuits elsewhere around the nation.
Citing its power to halt duplicative and wasteful litigation, the Superior Court of Delaware issued an injunction prohibiting AII from suing Neslemur Co. for indemnification against talc claims in other courts. AII sued Neslemur in Delaware last year seeking to enforce a contract indemnifying it for all liability stemming from Clubman products before it purchased the brand from Neslemur in 1987.
In a 10-page ruling issued Dec. 10, Judge Mary M. Johnston said the contract between AII and Neslemur will likely decide the question of indemnification so there is no reason to drag Neslemur into talc lawsuits in California, Pennsylvania, New Jersey and elsewhere over the same issue. AII argued plaintiff lawyers were making different claims in other courts that couldn’t be resolved by a court in Delaware.
The dispute reflects how asbestos plaintiff lawyers have succeeded in pushing their long-running litigation into new areas, with new deep pockets to mine. Neslemur, originally Nestle-Lemur Co., sold most of its assets including the Clubman brand in 1987 and ceased operations, but it still apparently has insurance coverage lawyers can tap to pay asbestos-related damages.
Family-owned AII has been named in about 20 lawsuits claiming trace amounts of asbestos-like fibers in its talc caused mesothelioma and other cancers in people who used Clubman talc. The company was tagged for 10% of an $18 million talc verdict in Los Angeles in 2016. Another trial in New Jersey this year ended in mistrial amid concerns about the coronavirus.
Plaintiff lawyers ramped up talc litigation on disputed theories that the product contains asbestos fibers and that they can be inhaled in large enough amounts to cause mesothelioma or travel up the fallopian tubes of women to cause ovarian cancer. Defendants counter with large-scale studies showing workers who mine and mill talc have no higher rates of cancer than the general population, casting doubt on the theory consumers exposed to a tiny percentage of the same substance could be sickened by it.
The cases hinge upon a handful of highly paid experts, most veterans of industrial asbestos litigation, who are willing to testify that they have found asbestos particles in old samples of talc plaintiff lawyers typically purchase on eBay or find online. Once a judge allows an expert to testify that there is asbestos in these old samples, other experts are free to offer their opinion that the plaintiff’s cancer was caused by the asbestos the first expert said he found in the product.