Let’s Talk Talc
Litigation defense strategies require drilling down
Barrels of ink and hard drives of bytes have been spent proclaiming the latest cancer-related talc litigation verdicts, as the outcomes climbed from eight figures to eye-popping 10-figure sums. The risks inherent in these cases should not be understated, with often incredibly sympathetic, no-fault, terminal plaintiffs on one side and alleged “big-bad” corporate monoliths on the other. Yet there remains an efficient path to managing these high-risk matters.
Know the Client
Many talc defendants are new to the toxic-tort landscape, with electronically available records, different regulatory histories, and scientific backgrounds distinct from earlier waves of defendants. The proper defense of these cases must start with a thorough understanding of the client, including corporate history; product-line history; and the manufacturing, testing, and certification processes.
A small sample of the questions to ask include: Who mined the talc? What mine and vein? What grade of talc? How much was shipped? Where was it sent? Did that specific talc become the product at issue? What years? What other talc products were manufactured at that facility? Did the plaintiff use the specific batches in the regions at issue? What contemporaneous test results or product samples exist? What certifications were issued? It goes on and on.
To sustain the burden of proof, plaintiffs must connect the talc in the earth to their specific alleged disease. This is not a simple A-to-B analysis, but rather a complex, multifaceted, and—more often than not—highly attenuated sequence that the defense must challenge at every juncture. Thorough investigations into the client’s history must be the first step. This investment may be substantial, but will pay dividends for any client facing the prospect of repeat filings in multiple jurisdictions.
Defense counsel are well advised to attack personal jurisdiction, given the increasingly strong case law from the U.S. Supreme Court in addition to the improving tendency of local judges to grant jurisdictional motions. Familiarity with one’s local venue is no excuse. If the client is not incorporated or does not have a principal place of business in the forum (i.e., general jurisdiction), and if the client has no forum-related activities, or at least none bearing on the instant action (i.e., specific jurisdiction), motions to dismiss for lack of personal jurisdiction must be very strongly considered.
Notably, the mere filing of such motions often results in dismissals before the motion is heard and sometimes before jurisdictional discovery is conducted. Frequently, in response to such motions, plaintiffs’ counsel will bluster: “Go ahead. Proceed with the motion. We will simply sue you in a different venue, where you will be the sole defendant and the exclusive target.” By and large, we have not seen such threats come to fruition. Aside from anecdotal exceptions, once a client has been dismissed as a result of a jurisdictional attack, the action proceeds and concludes against the remaining parties and never reappears in a different venue.
File Dispositive Motions
If an early dismissal or other resolution cannot be negotiated, motions for summary judgment—either whole or partial—should be filed. Such motions may be necessary to force the plaintiffs’ counsel to consider your dismissal or resolution inquiry, or to otherwise demonstrate that your client will not be worth the trouble of litigation. At a minimum, a motion to dismiss the punitive damages claim should be filed to remove that threat and make your client a less-attractive target.
These investigations should establish what grounds might be most tenable for a summary judgment motion, and the written discovery, document productions, deposition testimony, and potential expert witness declarations should fill the gaps. Frequent motion grounds include no evidence of asbestos content (lack of contemporaneous test results or samples); preemption by federal statute; statute of limitations; and insufficient product identification.
Object and Move to Exclude
Your client is likely to be distinct on a number of metrics from the generic evidence relied on by plaintiffs. To limit the foundation of plaintiffs’ fact and expert witnesses, prevent the jury from considering irrelevant information, and preserve issues for appeal (which itself may be a leverage item), counsel must prepare and file written evidentiary objections, motions to strike, motions in limine, trial briefs, and jury instructions to educate the judge and exclude improper materials. Where appropriate, argue that the plaintiffs’ purported evidence does not pertain to the client, the client’s product, the same talc source, the same years, the client’s industry, the same exposure scenario, or an applicable disease process, among other potential distinctions. Developing your client’s narrative as separate from plaintiffs’ generic set of “bad documents” is essential to becoming a less-valuable target.
Surely several days’ worth of seminars and lectures could be spent outlining the myriad other defenses and nuances attendant to these cases. The concepts described here should be considered very strongly as part of an effective arsenal.