Record-setting $18 million award could set precedent for future talcum powder cases

By John Myers | Dec 2, 2016

LOS ANGELES -- A Los Angeles jury returned a record-setting $18 million award against Whittaker, Clark & Daniels in Depoian v. American International Industries Inc., which could indicate a trend for future asbestos settlements.

“Every time there is an outrageously high award, it helps set a precedent,” Julie Griffiths, Central California regional director for Citizens Against Lawsuit Abuse,  told the Northern California Record.

Depoian and his wife filed the lawsuit together through their legal counsel, Worthington and Caron PC and Simon Greenstone, Panatier, Bartlett, against 19 companies. Many of those companies reached settlements with the plaintiffs before the trial's Sept. 26 start date. By the time the case was submitted to the jury, all of the organizations but Whittaker, Clark & Daniels had agreed to settlements.

Depoian was diagnosed with peritoneal and pleural mesothelioma in May 2015. He and his attorneys argued his illness was the result of a lifetime of exposure to talcum powder products that may have been contaminated with asbestos. Peritoneal mesothelioma is a form of cancer that grows inside of the abdomen, while pleural mesothelioma attacks the lungs. Whittaker, Clark & Daniels is the largest supplier of talcum powder products in the United States. Its products include Old Spice and Desert Flower body talcum powders.

In its decision, the jury found Whittaker, Clark & Daniels 30 percent at fault and to have acted with malice.

“The evidence was clear that Mr. Depoian had never had any occupational exposures to asbestos, and that the only source of exposure he had was from the talc products that he used,” Jay Stuemke, Simon Greenstone Panatier Bartlett, trial attorney on behalf of the Depoians told the Northern California Record. “Moreover, Whittaker, Clark & Daniels was the largest supplier of talc to the cosmetics industry in the 1960s and 1970s, and beginning in 1971, certified to its customers that its talc was free from asbestos. However, the evidence showed that the very limited testing performed by Whittaker, Clark & Daniels would have allowed billions of asbestos fibers per gram of talc to escape detection.”

According to the American Cancer Society, talcum powder products containing asbestos are generally accepted as carcinogens. The United States federal government banned the inclusion of asbestos in talcum powder in 1973. Asbestos has been a hot button source of legal action in recent years explained Griffiths.

“Asbestos cases are attractive to lawyers because it allows them to assign blame to large groups and see who will settle,” she said.

Stuemke attributed the verdict to the jury's frustration with the cosmetic industry's willingness to risk its customers' exposure to harmful materials, such as asbestos.

“I see this jury’s verdict as a strong rejection of the cosmetics industry’s conscious decision to permit asbestos to be present in its products,” he said. “As long as companies continue to prioritize their own profits over the safety and health of the public, people will suffer needlessly and verdicts like this will result.”

This is not the first case of asbestos exposure through talcum powder products to return a multi-million-dollar verdict. In April 2015, a Los Angeles jury awarded $13 million to Judith and John Winkel in their action against the Colgate-Palmolive Co. The jury found that, similar to Depoian, Judith Winkel had contracted mesothelioma from exposure to Cashmere Bouquet, a talcum powder product that was tainted with asbestos.

Griffiths said California can expect more cases revolving around exposure to asbestos through talcum powder going forward. 

“It's not a coincidence that both of these trials took place in California because if there is one thing that we can be sure of, it is that the state of California likes to come in first with lawsuits. So we can comfortably expect more of these fights in the future.”

California has been a particularly attractive location for lawsuits seeking high-dollar settlements because the state offers a combination of liberally written and loosely applied statutes that allows the judiciary greater room to maneuver, Griffiths said.

“Some of the more creative judges can exercise a lot of flexibility in these kinds of situations,” she added.

However, Stuemke disagreed, arguing that the case would have been resolved in the same manner in any part of the United States.

“Honestly, I think that jurors across the country will react similarly to a case where a person is dying due to the undisclosed presence of asbestos in cosmetic and personal care products,” he said. “This case was tried in Los Angeles because Phil Depoian had lived in Los Angeles for more than 60 years.”

On Octo. 19, the jury returned a verdict issuing fault to Whittaker, Clark & Daniels and because of the malice finding, the verdict would have triggered a second round of punitive damages for the company. However, both parties agreed to a confidential settlement instead. 

“I think that the veil is being lifted with regard to the talc industry’s asbestos contamination problem, and mesothelioma victims who used cosmetic talc products are justifiably likely to seek compensation,” added Stuemke.

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