Tag Archives: dominica anderson

Talc Litigation and Insurance Implications

Is talc the elusive “next big thing” long sought by the plaintiffs’ bar? Recent verdicts against cosmetic talc defendants, including Johnson & Johnson (“J & J”), suggest that talc litigation, at a minimum, is a material threat to talc defendants and the insurance industry. In 2016, J & J and other defendants suffered three large verdicts for exposure to its baby powder in St. Louis, Mo.: $72M, $70M and $55M. All three verdicts, in a jurisdiction considered favorable to asbestos plaintiffs, included substantial punitive damages. The plaintiffs in each of these cases alleged that exposure to talc contained in J&J’s baby powder caused them to contract ovarian cancer. Also in 2016, a Los Angeles jury awarded $18M to a plaintiff who sued a cosmetic talc defendant alleging exposure to cosmetic talc cause the plaintiff to contract mesothelioma.

Assuming talc litigation is not going away any time soon, several questions are raised. Are all talc claims the same? What is the relationship between talc and asbestos, if any? What defendants are at risk in the talc litigation? What are the insurance implications of talc claims, and are they alike or different from asbestos and other long-tail coverage claims?  Continue reading Talc Litigation and Insurance Implications

Is Talc the New Asbestos?

By Dominica C. Anderson and Lauren M. Case

Significantly, this year multiple large verdicts have been awarded against companies making and selling talcum products in cases where plaintiffs allege related cancer following use of talcum powder products.

Most recently, on October 27 a Missouri jury awarded a woman who developed ovarian cancer more than $70 million in compensatory and punitive damage related to her prolonged use of talcum powder made and sold by Johnson & Johnson, and Imerys Talc America Inc., which mines the talc.  (Deborah Giannecchini v. Johnson & Johnson, et al., No. 14422-CC09012-01, Mo. 22nd Jud. Cir.)  The damages award follows two separate verdicts against Johnson & Johnson this year in the same Missouri court of $72 million and $55 million.

Additionally, in California just last month, following a six-week jury trial, a Los Angeles jury returned a $18.07 million verdict against talc supplier Whittaker Clark & Daniels for its alleged role in causing California political figure, Philip Depoian’s, mesothelioma.  (Philip John depoian and Julie Pastor Depoian vs. American International Industries, et al., Los Angeles Superior Court, No. BC607192.)  Mesothelioma is a form of cancer primarily associated with work place exposure to asbestos.   Depoian’s attorneys argued that Depoian was exposed to asbestos in talc products at a barber shop where his father worked, and through his own use of products including Old Spice, Clubman, Kings Men, and Mennen Shave Talc.  Asbestos and talc are natural silicate minerals often mined in the same deposits.  The parties reached a confidential settlement on October 26, 2016 before the second phase for punitive damages was set to resume.

With many new cases filed in 2016, talc litigation is on the rise. 2016 saw so many new talc-related actions filed in the district courts that last month, the United States Judicial Panel on Multidistrict Litigation filed a transfer order to centralize pretrial proceedings in 11 actions in the district courts to the District of New Jersey.  (In re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Products Liability Litigation, MDL No. 2738, 2016 U.S. Dist. LEXIS 138403 (J.P.M.L. October 5, 2016.)  The Panel noted that it was aware of forty-three potential “tag-along” actions pending in twenty-three districts.  All but three of the 54 total actions (transferred actions and the potential tag-along actions) were filed in 2016.

All of the actions share common factual questions arising out of the allegations that use of Johnson & Johnson talcum powder products can cause ovarian or uterine cancer in women.  The majority of the actions filed to date are personal injury or wrongful death actions.  Two actions are consumer class actions brought on behalf of putative classes of women who allege defendants deceptively marketed talcum powder products for use without disclosing talc’s carcinogenic properties.

With these significant filings and verdicts, will coverage litigation follow?  Will Talc be the new asbestos??

Nevada Supreme Court Holds That California Cumis Rule Applies In Nevada, But An Actual Conflict Is A Prerequisite For Independent Counsel

By Dominica C. Anderson and Daniel B. Heidtke

In a 6-0 decision issued on September 24, 2015, the Nevada Supreme Court held that the California rule first announced in San Diego Fed. Credit Union v. Cumis Ins. Soc’y, 162 Cal. App. 3d 358 (1984), and the analysis of the California Court of Appeal’s decision in Fed. Ins. Co. v. MBL, Inc., 160 Cal. Rptr. 3d 910, 920 (Ct. App. 2013), a case in which Duane Morris LLP represented the insurer, also applies in Nevada.  With its decision in State Farm Mutual Automobile Ins. Co. v. Hansen, 131 Nev. Adv. Op. 74, Case No. 64484 (2015), the Nevada Supreme Court held Nevada law requires an insurer to provide independent counsel for its insured when an actual conflict of interest arises between the insurer and the insured.  Consistent with California law on the matter, the Court also held that a reservation of rights does not create a per se conflict of interest between insurer and insured. Continue reading Nevada Supreme Court Holds That California Cumis Rule Applies In Nevada, But An Actual Conflict Is A Prerequisite For Independent Counsel

Duane Morris Partner Dominica Anderson to Speak at the PIAA Corporate Counsel Workshop

Duane Morris partner Dominica C. Anderson will be speaking at the PIAA’s Corporate Counsel Workshop. Ms. Anderson’s session is titled, “ECO/XPL and the Mega-Verdict: Is This the New Normal?” and will begin at 2:45 p.m. on Thursday, October 16, 2014 at the Fairmont Hotel Vancouver.

For more information about this event, please visit our Duane Morris Events Page.

Partner Terrance Evans Appointed Vice Chair of the ABA National Insurance Coverage Conference

Congratulations to partner Terrance Evans, of the San Francisco office, on his appointment as Vice Chair of the ABA National Insurance Coverage Conference, the largest insurance coverage conference in the country. Mr. Evans follows in the footsteps of partner Ray Wong, of the San Francisco office, who served as Chair and Vice Chair of the conference, and partner Dominica Anderson, of the Las Vegas office, who served as Vice Chair of the conference.