LOS ANGELES (Legal Newsline) - A California appeals court reversed a $3 million punitive-damages award against a former supplier of cosmetic talc, ruling there wasn’t evidence the company’s executives knew their product contained dangerous amounts of asbestos when the plaintiff claimed his exposure.
The decision by California’s Second Appellate District Court left intact damages of about $450,000 against Whittaker, Clark & Daniels but found there was no justification for punitive damages since the talc industry and the Food and Drug Administration came to no firm conclusions about the presence of asbestos fibers in the 1970s.
Plaintiff lawyers have argued talc producers hid the presence of asbestos from the FDA, but extensive evidence at trial showed that testing was inconsistent and the government itself concluded in 1983 that cosmetic talc was safe.
“The entire record is a testament to the various technologies available or being used for testing talc samples for asbestos,” the appeals court majority wrote in a July 5 decision. “There is no evidence the scientific community was `kept in the dark.’”
Willie McNeal sued Whittaker Clark and other companies after being diagnosed with mesothelioma, a cancer of the chest lining that can be caused by asbestos exposure. He claimed one cause of his disease was Old Spice talcum powder he used until 1980, which contained talc from Whittaker Clark. A Los Angeles jury awarded him $1.8 million in compensatory damages in 2021, which was reduced due to settlements with other defendants, and $3 million in punitives.
Whittaker Clark appealed only the punitive damages award, arguing there was no evidence its executives knew of the alleged risk from asbestos in talcum powder. The issue gained prominence in the early 1970s after New York University chemist Seymour Z. Lewin said he found asbestos fibers in talc samples.
The finding spurred meetings with the FDA, and the Washington Post reported on it a few years later, though even Lewin acknowledged his results were inconsistent and most samples contained no asbestos fibers.
A scientist working for Whittaker Clark also reported minute amounts of asbestos in samples from North Carolina in 1973, although experts later decried the inconsistency of testing methods. When asked by a Johns Hopkins oncologist in 1983 if cosmetic talc was causing mesothelioma, a regulatory official wrote: “We have no knowledge of any cosmetic talcum powder product on the market that contains fibrous asbestos. Nor do we have any information or data which indicates that presently marketed cosmetic talc preparations are unsafe when used as directed.”
Plaintiff lawyers revived the idea talc can cause cancer as the number of mesothelioma cases that could be attributed to industrial exposure dwindled. Powered by a handful of highly paid experts who say they can detect asbestos fibers in decades-old samples of cosmetic talc, the litigation has generated tens of millions of dollars in jury verdicts and drove Johnson & Johnson to pull its iconic Baby Powder from the U.S. market. The company maintains its talc was asbestos-free.
Judge John Shepard Wiley dissented in the McNeal case, saying the jury’s finding of punitive damages should stand in order to “give businesses the proper incentive to promote public safety.”
The jury heard evidence that a Whittaker Clark executive had received the report of asbestos in the North Carolina samples and his response was “deny, deny, deny,” the judge wrote.
“It seems people never learn,” he wrote. “Tort law should encourage them to learn.”