J&J Fighting Imerys Talc Effort To Make It Pay For Talcum Powder Cancer Liability

Johnson & Johnson says it intends to push back against an effort being made by its supplier, Imerys Talc, to force the manufacturer to pay the company’s talcum powder asbestos-related injury claims.

There are currently faces more than 30,000 Baby Powder lawsuits and Shower-to-Shower lawsuits brought by women throughout the court system, most of which name as defendants both Johnson & Johnson and it’s now-bankrupt tacl supplier Imerys Talc, alleging that asbestos particles in talc caused women to develop ovarian cancer and other health problems.

Imerys Talc filed for bankruptcy protection in Delaware in 2019, to manage the overwhelming costs associated with the litigation and liability it faced for withholding information about risks associated with talc and asbestos particles contained in the final products.

A Canadian Company, Magris Resources Canada, Inc., bought Imerys Talc America in November 2020 for $223 million. However, in July, Imerys SA, Imerys Talc’s original French parent company, filed a lawsuit against Johnson & Johnson, claiming the pharmaceutical giant was liable for the cost of asbestos and ovarian cancer talcum powder lawsuits filed against it.

On September 21, Johnson & Johnson filed a motion to dismiss (PDF) the lawsuit in the U.S. Bankruptcy Court for the District of Delaware, claiming a series of agreements with Imerys and its predecessors, in place since 1989, makes it clear that coverage of the claims is not part of the two companies’ indemnity provisions.

Talcum Powder Bankruptcy Plan

The legal battle has played out as Johnson & Johnson has considered controversial bankruptcy plans of its own as part of a further attempt to avoid paying women settlements for injuries caused by Baby Powder and other popular products marketed as safe for decades.

Recently, the multinational corporation has suggested during talcum powder settlement negotiations that it may attempt to spin off a new entity that would carry the liabilities associated with Johnson’s Baby Powder and Shower-to-Shower, then place that company into bankruptcy. However, a number of legal experts and courts have already suggested such a plan is not likely to allow the company to do anything more than delay compensating women injured by their products.

Last week, Judge Laurie Selber Silverstein of the U.S. Bankruptcy Court in Delaware refused to block Johnson & Johnson from taking the move of breaking off talc liabilities from its other assets. Judge Silverstein said the plaintiffs did not have legal standing to block the move because it was essentially a legal transaction between Johnson & Johnson and Imerys Talc, America Inc., which is currently reorganizing to come out of bankruptcy due to the financial weight of the talcum powder litigation.

Johnson & Johnson previously told investors it would be able to dismiss the federal litigation, arguing that expert testimony supporting the link between talcum powder and cancer was not strong enough to meet the Daubert standard required in the federal court system. However, the U.S. District Judge presiding over the litigation rejected that argument last year, clearing the way for the first federal trials that are likely to begin next year.

While the outcome of these “test” trials will not be binding on other claims, they will provide a strong signal about the extent of liability Johnson & Johnson may face if it is unable to reach talcum powder settlements with thousands of women diagnosed with ovarian cancer after regular use of the talc-based powders for feminine hygiene.