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From Products Liability Law Daily, April 30, 2015

Colgate-Palmolive settles talc product suit following $13 million jury award

By Susan Lasser, J.D.

A 73-year-old woman who contracted mesothelioma after using Cashmere Bouquet, an asbestos-containing talcum powder manufactured by Colgate-Palmolive, was awarded $13 million by a Los Angeles jury. The parties reached a confidential settlement before the jury could determine punitive damages (Winkel v. Colgate-Palmolive Co., April 28, 2015, Rhodes, R.)

Complaint. According to her complaint, Judith Winkel was diagnosed with mesothelioma in January 2014 after using Cashmere Bouquet. The complaint asserted claims against a number of suppliers and manufacturers in addition to Colgate-Palmolive, including Calaveras Asbestos, Ltd. (as a supplier of asbestos fibers), DAP Products, Inc. (for DAP caulk), and Henry Company LLC (for Henry’s Roofing Cement). Her claims against the defendants included negligence, strict liability, and conspiracy.

Jury findings. The jury unanimously found in favor of Winkel and her husband, John, on five counts: negligence, consumer expectations, risk-benefit, manufacturing defect, and failure to warn. The jury also found that Colgate-Palmolive acted with malice.

The jury found that Colgate was negligent in designing, manufacturing, or selling Cashmere Bouquet. On the design defect claim, the jury found under a consumer expectations theory that Colgate's negligence was a substantial factor in causing her harm, and that Cashmere Bouquet failed to perform as safely as an ordinary consumer would have expected when it was used or misused in an intended or reasonably foreseeable way. The jury also found that Cashmere Bouquet's design was a substantial factor in causing harm to Winkel. Determining that the risks of Cashmere Bouquet outweighed the beneifts, the jury concluded under a risk-benefit theory that Cashmere Bouquet's design was a substantial factor in causing the harm.

The jury also concluded that Cashmere Bouquet contained a manufacturing defect when it left Colgate-Palmolive's possession, and that the manufacturing defect was a substantial factor in Winkel’s injuries. On the consumer’s failure-to-warn claim on a strict liability theory, the jury concluded that the Cashmere Bouquet talc product, as sold by Colgate, had potential risks that were known or knowable in light of the generally accepted scientific and medical knowledge that was available at the time of the sale. These potential risks presented a “substantial danger to persons using or misusing the product in an intended or reasonably foreseeable way,” the jury said. Further, ordinary consumers of Cashmere Bouquet would have failed to recognize the potential risks, and Colgate-Palmolive failed to adequately warn or instruct of the potential risks of its products. The lack of sufficient warnings or instructions on Cashmere Bouquet was a substantial factor in Winkel’s injuries.

Damages. Without reducing damages due to the comparative fault of other defendants, the jury awarded $125,000 for past reasonable and necessary medical bills. The total economic damages awarded to Winkel, excluding medical bills, was $508,000.

As for past non-economic damages, including physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, anxiety, humiliation, and emotional distress, the jury awarded $1 million. The jury added $10 million for future non-economic damages. Winkel’s husband, John, received $1.4 million on his loss of consortium claim.

The jury assigned percentages of fault as well. Colgate-Palmolive was 95 percent liable, according to the jury. Other companies at fault were Caterpillar, Inc. (1 percent); Robert Hart & Sons (1.5 percent); and Sears Roebuck and Co. (1.5 percent). In addition, the jury found by clear and convincing evidence that Colgate-Palmolive engaged in conduct with malice or oppression, and that “conduct constituting malice, oppression or fraud was committed by one or more officers, directors, or managing agents” of Colgate-Palmolive acting on behalf of the company.

Confidential settlement. According to an April 29 news release from the Winkels’ law firm, this was the first verdict against Colgate-Palmolive involving asbestos exposure from talcum powder. Following the verdict, the parties reached a confidential settlement before the trial’s punitive damages phase was set to begin.

The case is No. BC549253.

Attorneys: Chris Panatier (Simon Greenstone Panatier Bartlett, P.C.) for Judith Winkel. Ian Scott Shelton (Quinn Emanuel Urquhart and Sullivan LLP) for Colgate-Palmolive Co.

Companies: Colgate-Palmolive Co.

MainStory: TopStory ComplaintNewsStory DesignManufacturingNews MotorVehiclesNews DamagesNews TexasNews

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