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A Middlesex Superior Court jury handed down a $39 million verdict in the first known products liability suit alleging that talc applied to a patient’s internal organs as part of a common surgical procedure resulted in mesothelioma years later.
On Sept. 13, following a four-week trial before Judge Jackie A. Cowin and just five hours of deliberation, the jury in Zundel v. United Minerals & Properties, Inc. found defendant Cimbar Performance Minerals liable on breach-of-warranty and negligence claims. Included in the $39 million in damages awarded to plaintiff Bryce Zundel was $12.25 million for loss of consortium by Bryce’s wife, Diane.
Everyone told us how this case was impossible.
— Danny R. Kraft Jr., lead plaintiff’s lawyer
The plaintiff’s claims stemmed from a procedure known as “talc pleurodesis” that he underwent in 2014. The procedure involved administering sterile talc powder around the outer surface of the plaintiff’s left lung.
In September 2021, the plaintiff was diagnosed with malignant mesothelioma in the area of his lung where the talc had been applied.
According to the plaintiff, defendant Cimbar supplied the talc used to make the sterile powder applied in his surgery. At trial, the plaintiff’s experts testified that Cimbar’s talc contained asbestos fibers, which caused the mesothelioma.
The plaintiff was represented by Danny R. Kraft Jr. and Darron E. Berquist, both of New York City, Mark A. Linder of Houston, and Christopher P. Duffy of Salem.
“I’ve been doing asbestos cases for 30 years,” Duffy said. “Even the traditional asbestos cases are complex. This case was even more difficult because we were alleging that the client’s exposure came from a talc pleurodesis.”
Duffy said one of the main defenses throughout trial was that it was the first case to claim mesothelioma developed from a talc pleurodesis.
Kraft was brought into the case as lead trial counsel because of his expertise on talc.
I’ve been doing asbestos cases for 30 years. Even the traditional asbestos cases are complex. This case was even more difficult because we were alleging that the client’s exposure came from a talc pleurodesis.
— Christopher P. Duffy, Salem
“We had a seven-year latency period in this case, which was a challenge from a causation standpoint,” Berquist said. “It was a talc case, and Danny was one of the few trial lawyers in the country who has actually won against Johnson & Johnson.”
The lead defense counsel in the case, Bradford J. DeJardin of Los Angeles, did not respond to a request for comment.
Clean sweep
The jury considered four separate claims: (1) breach of implied warranty of merchantability — design defect; (2) breach of implied warranty of merchantability — inadequate warning; (3) negligence — design defect; and (4) negligence — inadequate warning. In each count, the jury found a breach of duty that was a substantial contributing factor in causing the plaintiff’s mesothelioma.
The jury awarded $3 million for Bryce’s past pain and suffering, $21.5 million for his future pain and suffering, $1.85 million for past and future medical expenses, and $481,000 for past and future household services and Social Security retirement benefits.
It awarded Diane $1.5 million for past loss of consortium and $10.75 million for future loss of consortium.
The plaintiff filed suit in Middlesex Superior Court in May 2022. The case was assigned to the Massachusetts Asbestos Litigation Docket, which is centralized in Middlesex.
The plaintiff alleged that, in 2014 and 2020, he underwent talc pleurodesis procedures in Salt Lake City, where he and his wife resided.
According to Kraft, the procedures were aimed at correcting a recurrent collapsed lung the plaintiff suffered.
“The basic idea of talc pleurodesis is to adhere the pleural surface [of the lung] to the chest wall so that there’s no space for the lung to collapse,” Kraft explained. “The talc is applied to the pleural surface of the lung and the chest wall to cause inflammation and adhere the two surfaces.”
The plaintiff alleged that the defendants’ asbestos-containing talc product was administered around his left lung during the course of the two surgical procedures. It was in that area that doctors diagnosed the presence of malignant pleural mesothelioma in September 2021.
“The testimony of the treating physician was powerful in that he said the talc was ‘sprayed’ throughout his chest cavity,” Duffy said. “We played a clip of that testimony in closing.”
In making the plaintiff’s cancer diagnosis, doctors reportedly found talc aggregations covering most of the lower lobe surface of his left lung as well as surrounding surfaces in the pleural cavity.
The plaintiff’s original complaint named multiple defendants. In addition to Georgia-based Cimbar, other defendants included two Massachusetts medical product suppliers: Boston Medical Products and Lymol Medical Corp.
Those defendants were later dismissed by agreement of the parties. According to Berquist, none of the remaining out-of-state defendants challenged Massachusetts state court jurisdiction.
Chinese mines
Duffy said the case was “always going to be a battle of the experts” as one of the key issues was whether the talc was contaminated by asbestos.
Kraft explained that Cimbar’s liability stemmed from its use of talc from mines in a certain Chinese province. According to Kraft, Cimbar knew there was a problem with asbestos contamination from those mines but did little to test the talc powder it used in its products.
“They basically admitted that a speck of asbestos in their talc was too much because of the hazards associated with asbestos,” Kraft said. “Yet they tested a thimble full of the millions of pounds of talc [the company used]. Obviously, we argued that this wasn’t sufficient testing, which goes to our claim of design defect.”
Prior to trial, the plaintiff’s attorneys obtained a sample of talc from defendant Lymol Medical for testing by their asbestos expert, Dr. William E. Longo. Lymol distributed the sterile talc powder product approved by the FDA. The Lymol product was made from Cimbar’s talc, which came from mines in Guangxi Province in China.
“We were given this one bottle, had it tested, and found asbestos,” Kraft said. “Dr. Longo has conducted hundreds of tests of this talc ore [from China] for different companies, including Johnson & Johnson and Chanel, so we were able to introduce his testimony that the geology of the mines was contaminated.”
Cimbar introduced its own expert who testified he was unable to find asbestos in the samples he tested.
“We were able to show he was not credible,” Kraft said. “On par, the jury found that Dr. Longo’s testing methodology, explanations and results were better.”
In driving the point home to the jury that the defendant’s testing for asbestos was completely inadequate, Duffy said Kraft used an actual thimble as a demonstrative exhibit.
“It was great. He put the thimble into evidence and used it at closing,” Duffy said. “The evidence was that Cimbar had paid $2 million for a shipment of 12 million pounds of talc, and that out of those 12 million pounds they only tested a thimble full — 1 gram.”
Kraft, meanwhile, said that a key to the outcome in the trial was his cross-examination of Cimbar CEO Albert Wilson.
“I cross-examined him for two days,” Kraft said. “He kind of folded on the stand and admitted to things we needed him to admit to. I was able to show that this was their talc product, they knew it was hazardous, they knew it could potentially lead to mesothelioma, and they did the bare minimum in terms of testing and should have been doing more, particularly knowing that their product was going to be used in a pharmaceutical application.”
On the causation issue, Kraft credited the testimony of two world-renowned experts, Dr. Jacqueline Moline of Northwell Health in New York and Dr. Arnold R. Brody, an experimental pathologist at Tulane University.
One of the defense’s primary arguments was that, in most asbestos cases, there is a 10- to 15-year latency period between exposure and the development of mesothelioma, Kraft said. According to the defense, it was highly unlikely that the plaintiff’s exposure to the sterile talc product could have been the cause of his mesothelioma given the short seven-year latency period, as well as the fact that there were no known prior cases of surgical talc causing mesothelioma.
“Dr. Brody was able to describe what happens at the cellular level when you directly apply asbestos to mesothelial cells,” Berquist said. “He did a very good job of describing to the jury why, in this exposure scenario, it was perfectly understandable that the latency period would be shorter.”
The lawyers also credit their client with providing compelling testimony.
“He filed this lawsuit because he was angry that this procedure was designed to help him and not hurt him,” Kraft said. “But, more importantly, he said he wants to make sure no one ever has to live the nightmare he is living and that doctors are made aware of the inherent dangers of this talc product.”
When the verdict was read, Kraft said there were tears in the eyes of both the Zundels and members of the plaintiff’s legal team.
“Everyone told us how this case was impossible,” Kraft recalled. “When I was given the opportunity to try this case, I said [we can win] if we assemble a team of world-renowned experts and a dream team of lawyers. It was a team effort. Everyone poured their hearts and their souls into this verdict.”
Duffy echoed the sentiment.
“It was quite a day and quite a win,” Duffy said. “Oftentimes in these cases, the client has passed away by the time of trial. It was rewarding to have the client be able to be there, to have his day in court, to get justice.”
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