Observers of filing trends in personal injury mesothelioma matters alleging exposure to talc contaminated with asbestos have noted that the bankruptcy filing of a predominant defendant in those matters did little to slow the pace of such filings. Instead, as the filing of new matters continued, the number of defendants named in such filings substantially increased.
In an article published last year in DRI’s For the Defense, we outlined the historical basis for current trends in talc litigation, drawing parallels between the current state of litigation related to allegations of exposure to contaminated talc and the history of litigation related to industrial asbestos exposure claims following the 1982 bankruptcy of Johns Manville. In particular, we anticipated that bankruptcy filings by defendants would only expand the number of named defendants in related mesothelioma filings.
Now, a year later, that point has proved to be prescient. In addition to the increase in the named defendants appearing in personal injury mesothelioma matters alleging exposure to talc contaminated with asbestos, the number of such matters being filed has also accelerated. This blog post will serve as an update to the reader regarding the state of the litigation following the high-profile bankruptcy previously discussed, as well as new bankruptcy filings of other companies commonly named as defendants in such matters.
New Filings of Matters Alleging Exposure Through Talc Have Increased
Product liability mesothelioma matters alleging exposure to talc contaminated with asbestos have a different profile than other types of asbestos exposure claims in a few key areas. Claims alleging an exposure from contaminated talc are much more likely to allege non-occupational exposures. Because of this, defendants named in litigation relating to talc exposure often come from the hygiene industry, the cosmetic industry, residential construction materials manufacturers, other companies that included talc in their products, and the retailers that stocked those products on their shelves. Non-occupational exposure claims present difficulties to defendants seeking to disprove alleged exposures, because there are usually no records of such use. Claims related to allegedly contaminated talc are also much more likely to allege one or more secondary sources of alleged exposure, such as secondhand exposure stemming from a relative’s clothing. While no one category encompasses all matters alleging exposure to talc contaminated with asbestos, these trends help to explain why the numbers of claims and number of named defendants can increase year over year with relatively few factors acting to stem the flow of filings.
Since Johnson & Johnson’s bankruptcy filing in 2021, new matter filings of product liability matters claiming exposure to allegedly contaminated talc have increased dramatically. The year that the bankruptcy was filed new matter filings temporarily dipped by about 24% according to data from KCIC. The following year saw a return to the prior year’s numbers. Last year, the number of new matters continued to increase over the prior year.
New Bankruptcy Filings
On August 14, 2024, Avon Products Inc. filed for Chapter 11 bankruptcy in U.S. Bankruptcy Court for the District of Delaware. In its filing, Avon noted preexisting debt obligations as well as the mounting number of lawsuits related to alleged injuries related to exposure talc. Avon’s bankruptcy filing came just days after Judge David Jones of the U.S. Bankruptcy Court for the Southern District of New York ruled that cosmetic company Revlon’s bankruptcy plan barred 42 individual lawsuits alleging exposure from allegedly contaminated talc products manufactured by Revlon that were filed after the general discharge. Revlon had filed its bankruptcy in June of 2022.
On October 2, 2023, Barretts Minerals Inc. (BMI), which had operated a talc plant and supplied talc, filed for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the Southern District of Texas. BMI’s parent company, Minerals Technologies Inc., released a statement confirming that the BMI bankruptcy was filed as a manner of resolving the entity’s talc-associated liabilities.
Ben Nye, a professional cosmetic manufacturer, filed for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the Central District of California on March 11, 2024. Notably, Ben Nye filed for bankruptcy due to the filing of only eight lawsuits, citing its lack of insurance coverage precluding the ability to fund future litigation. This is a problem that will face many companies who used talc in their products in the 1990s and beyond due to asbestos exclusions in many insurance policies.
The trends show that bankruptcy filings by companies who are often sued in claims alleging exposure to contaminated talc have not slowed down the proliferation of such matters. Commentators representing plaintiffs in exposure claims have attempted to characterize bankruptcy filings as “bad faith” while simultaneously filing ever increasing numbers of new claims. Regardless of the outcome of bankruptcy filings by companies that are commonly sued in talc-related exposure claims, the numbers of named defendants and numbers of new matters filed on an annual basis appear to be on an upward trajectory.
Conclusion The history of asbestos litigation in the years following the Johns Manville bankruptcy filing over 40 years ago continue to be instructive today. As new filings increase—and additional companies are forced to defend allegations of exposure to talc contaminated with asbestos—additional bankruptcy filings may be expected. As bankruptcy filings occur, it is (unfortunately) reasonable to anticipate that plaintiffs will respond by continuing to expand their theories of exposure and by naming increasing numbers of companies in the ever-widening search for additional solvent defendants.