Litigation Update: IMERYS Files Counter Indemnification Claim Against J&J in Talc Litigation

by | Aug 2, 2021

In a complaint filed on July 27, talc miner and Johnson and Johnson (J&J) talc supplier, Imerys Talc America, petitioned the court to find that J&J was obligated to indemnify the company for the tens of thousands of personal injury claims filed against it; Imerys points to a series of long-standing supply agreements with J&J to support its claim for indemnification in the ongoing talc litigation and refutes J&J’s contention that it had triggered any clauses in those agreements that would require the supplier to indemnify its former biggest customer.

In its complaint seeking declaratory judgment, Imerys stated “In the decades leading up to their bankruptcy, Plaintiffs were the sole supplier of cosmetic talc to J&J. During that time, and pursuant to various agreements, J&J repeatedly agreed to indemnify Plaintiffs, their affiliates, and their predecessors for all liability resulting from Plaintiffs’ supply of talc to J&J. J&J made those promises in a series of contracts it entered into over the course of more than 20 years. Yet when Plaintiffs faced such liability—in the form of thousands of personal injury claims alleging that the claimants’ use of J&J products containing Plaintiffs’ talc caused ovarian cancer, mesothelioma and other diseases—J&J simply refused to defend or pay the claims, forcing Plaintiffs to file for bankruptcy protection. In this adversary proceeding, Plaintiffs ITA and ITV (Imerys Talc America, Inc. and Imerys Talc Vermont, Inc.) seek declaratory judgments and damages relating to J&J’s indemnity obligations.”

Imerys’ adversary action was filed in response to J&J’s earlier complaint alleging just the opposite – that Imerys had an obligation to indemnify the pharmaceutical giant for those same talc-related personal injury claims. Last year J&J filed a $20 million Chapter 11 claim against Imerys seeking payment for defense costs and settlements paid in cases involving J&J products that contained Imerys talc.

In a related matter, a U.S. House of Representatives subcommittee has requested that J&J provide documents regarding any plans it may be considering to create a dedicated subsidiary, the function of which would be to handle the thousands the company’s talc-related personal injury claims. The subcommittee is interested in how such an assignation of J&J’s talc liabilities and any subsequent declaration of bankruptcy by that subsidiary would impact those outstanding claims. There are also questions about how such a subsidiary would be funded. Concerns have been voiced that any such action would preserve J&J’s assets at the expense of claimants.

J&J is also under fire from prominent civil rights attorney, Ben Crump, who has filed a lawsuit alleging that J&J specifically targeted Black women in its marketing of its talc-based baby powder; Mr. Crump argues that this marketing campaign was waged in spite of the company’s awareness that its product was contaminated with cancer-causing asbestos. Mr. Crump’s co-counsel is Paul Napoli and the complaint was filed on behalf of members of the National Council of Negro Women (NCNW), a group that advocates for women of African descent and their families.

Johnson and Johnson continues to maintain that its products are not contaminated with asbestos and do not cause ovarian cancer, citing independent product testing; however, the U.S. Supreme Court recently declined without comment to hear the company’s appeal of a $2 billion verdict awarded by a Missouri jury to a number of women alleging they developed ovarian cancer after using J&J’s baby powder product. In its appeal, J&J claimed that it had been unfairly disadvantaged in having to defend itself against 22 women from several different states in one trial.

Read more of our posts on Talc.

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