OAKLAND — Although it's not the largest award in a talc lawsuit, experts say the recent award of more than $22 million from a California jury to the family of a deceased paint-maker threatens to skew awards for future talc-asbestos lawsuits.
The damages, $4.6 million in punitive and more $17 million in compensatory, were awarded Dec. 11 by the jury in the Alameda County Superior Court in a case against Imerys Talc America Inc. and Vanderbilt Minerals LLC. Compensatory damages were determined Nov. 27 and included economic damages for Richard Booker, who had died, and noneconomic damages for his family.
But the total compensatory damages, which reached a total of $17.57 million, are considered disproportionate by legal professionals when compared to the punitive damages.
"What's odd here is the compensatory damages are so high, given the age of the plaintiff," Andrew Bradt, assistant professor of law at the University of California at Berkeley, told Northern California Record. "It's the opposite of what we often see which is a small compensatory number and a very large punitive number."
Booker was diagnosed with mesothelioma in August 2015 and died July 3, 2016. During his career as a paint-maker and tinter at Dexter-Midland Chemical Co. from 1972 to 1993, he allegedly developed the disease, according to court filings reported on by the National Law Review.
The large compensatory sum in the Booker v. Imerys case may skew the outcome of future litigations, given the age of this plaintiff, experts agree.
"Ordinarily, courts are reluctant to disturb [compensatory damages], but non-economic damages are similar to punitive damages in that they can become arbitrary when they're not tethered to anything," Evan Tager of Mayer Brown told Northern California Record.
The threat of future awards being skewed is most closely linked to Booker's age when he died, as he was 72, yet his family received a compensatory sum that may be unable to be duplicated as more talc-related cases surface.
"When you're in your 70s, how can the damages for the loss of enjoyment of life or loss of consortium or any of these other categories of noneconomic damages be this high and leave room for any reasonable amount of compensatory damages when somebody dies in their 20s or 30s?" Tager asked.
But delivering the same sum to other plaintiffs may prove impossible if the compensatory damages are not contested before other talc lawsuits come to light.
"I would expect the defendants to try to persuade the courts to reduce those compensatory damages," Tager said. "In order to avoid excessive duplicative punishment, you have to apply this methodology where you assume everyone will get the same amount as this plaintiff and then look at the aggregate."
According to a plaintiff's attorney Joseph Satterley at Kazan, McClain, Satterley & Greenwood, the defendants were knowingly irresponsible when it came to the plaintiff's safety and right to live and the compensatory damages are linked to the loss felt by Booker's loved ones, the National Law Review reported. Additionally, given Occupational Safety and Health Administration guidelines for workers' safety, which were enacted in 1971, the plaintiff's safety should have been considered.
"The thing that I think this case demonstrates is how risky it's going to be to take these talc cases to trial for defendants," Bradt said. "If this jury is representative, they clearly will not hesitate to come back with a large verdict."
Tager believes that given the nature of mesothelioma, it is not uncommon to see elderly individuals coming forward with claims. But he fears for the result the Booker case may have on future complaints when the plaintiffs are younger.
"If this is okay, then the sky's the limit for the next case and the universe is the limit for a younger person," Tager said.
Imerys and Vanderbilt are not the only companies to be answering for talc-related litigations. Johnson & Johnson recently has been accused of similar litigations for a number of cases involving ovarian cancer lawsuits, and MetLife was a company of interest after being accused of hiding results from a 1930s study of asbestos miners.
"We're going to continue to see a huge number of talc-related litigations simply because of the ubiquity of the product," Bradt said. "I wouldn't expect that these cases would go away anytime soon. This is just the tip of the iceberg."
Imerys was ascribed 40 percent of the fault with Vanderbilt being ascribed 60 percent, the National Law Review reported.
The attorney from the law firm representing the plaintiffs, Kazan, McClain, Satterley & Greenwood, declined to be interviewed.