$39M Jury Verdict Awarded in Novel Mesothelioma Case
A $39M verdict in a landmark mesothelioma case highlights the dangers of asbestos-contaminated talc used in medical procedures, setting a critical precedent
An unprecedented mesothelioma case involving the use of contaminated talc in a surgical procedure has resulted in a jury verdict of more than $39 million for a Utah couple, Law reports.
The Lanier Law Firm of Houston, in partnership with the New York firm Meirowitz & Wasserberg and a Boston attorney, represented the plaintiffs in Suffolk County Superior Court during a three-week trial in Massachusetts.
The defense attorneys were Bradford DeJardin and Erin Carpenter of Los Angeles, California, and Mallarie Simonds of Husch Blackwell's Boston office.
"United Minerals and Properties, Inc. d/b/a Cimbar Performance Minerals is understandably disappointed by the recent verdict in the Zundel case. The talc in question was used as part of a medical procedure that Cimbar was not aware of until years after use. Cimbar believes the jury ignored the science and was simply wrong. Cimbar is currently exploring possible post-trial appeals," DeJardin said.
A solid scientific basis
Plaintiff Bryce Zundel, now 64, underwent a medical procedure for a collapsed lung in 2014 at a Salt Lake City hospital that included surgery.
Attorney Mark Linder said a common practice for treating a collapsed lung is the pleurodesis procedure, in which talcum powder is sprinkled on the outer wall of the lung to attach it to the chest wall and prevent collapse from occurring.
In Zundel's case, pharmaceutical-grade talc contained asbestos, which was confirmed by a diagnosis of pleural mesothelioma in September 2021; doctors observed "talcum aggregates covering most of the surface of the lower lobe, as well as the posterior parietal pleura, diaphragmatic surface, and pericardial surfaces," the amended lawsuit states.
The lawsuit was filed in Massachusetts because two of the five original defendant companies are based there. Except Georgia-based Cimbar Performance Minerals, the plaintiffs' issues with the other defendants were resolved before trial, Linder said.
Boston-based Boston Medical Products Inc. supplied the so-called "sterile talc", but the packaged raw product came from Cimbar, and the defendant obtained the talc from a talc mine in China that contained an asbestos vein.
Talc and asbestos are minerals that tend to form naturally and together in the soil, Linder said.
During the two-year pretrial phase, in addition to several trials and decisions, Linder said the main issue that influenced the trial was the judge's decision not to allow the plaintiff's epidemiologist to testify. The epidemiologist should have assessed the strengths and weaknesses of the defense expert's testimony regarding the prevalence of the disease in certain populations.
"As the trial progressed, and particularly with the defense expert's testimony, (Judge Jackie Cowen) began to understand why our epidemiologist's testimony was relevant and acceded to our requests to present his testimony in rebuttal," Linder said.
The trial lasted three weeks because the evidence had a strong scientific basis and required many expert witnesses, Linder said. Other experts called to testify include a cell biologist who explained how asbestos causes cancer and a materials scientist who tested the product.
Defense experts included a pathologist to rebut causation and a geologist who testified about the improbability of finding asbestos in talc, Linder said.
Before he got mesothelioma, Linder described Zundel as a very health-conscious person who exercised regularly and followed a disciplined diet. His past and future injuries were based on the extensive chemotherapy and proton beam therapy he underwent at MD Anderson Cancer Center in Houston.
"It is brutal treatment. Reduces the lung to 10% of its capacity. He lives mainly from his right lung,” said Linder.
Linder believes the jury's decision was influenced by expert testimony about what the disease still has in store for Zundel, noting that it will progress to the point where he will be unable to control himself and will eventually die of suffocation.
Linder noted that this is the first study of mesothelioma resulting from this type of exposure. He said that Zundel’s retired thoracic surgeon, Dr. Kent Thorne, testified that he would never knowingly treat a pleurodesis patient with talc containing a single fiber of asbestos.
The hospital and doctors were not sued, Linder added, because they were defrauded. The information accompanying the product said it did not contain asbestos, he said. The ruling, Linder added, should make doctors aware that using talc in this procedure poses a problem. It may be appropriate for patients who already have cancer and are considered terminal, but not for patients who do not have cancer.
“It needs to stop being used to treat healthy patients. Or provide information that will go to doctors who can provide that information to clients. At least give people who are going to be treated with it the choice of whether or not to accept that risk,” Linder said.
The $39 million judgment included $12.25 million paid to Zundel’s wife, Diane Zundel, for the consortium’s losses. Linder added that he expects the final judgment to include adverse interests dating back to the 2022 filing date.
According to media reports, Cimbar is suing his insurer, Phoenix Insurance Co., in federal court in Georgia for failure to provide representation. The parties have reached a settlement, with the insurer agreeing to provide legal representation for Cimbar.
$39M Jury Verdict Awarded in Novel Mesothelioma Case: Conclusion
The verdict in the Zundel case marks a significant and precedent-setting moment in the legal landscape of mesothelioma cases. This ruling, awarding over $39 million to Bryce and Diane Zundel, highlights both the devastating impact of asbestos-contaminated talc and the responsibility that manufacturers must bear in ensuring the safety of their products, particularly in medical settings.
The scientific evidence presented during the trial, supported by expert testimony, underscored the clear link between asbestos exposure and the development of mesothelioma, affirming the jury’s decision despite defense arguments to the contrary.
This case not only sheds light on the dangers of using talcum powder in surgical procedures but also signals a broader call to action within the medical community. As attorney Mark Linder emphasized, this ruling should prompt doctors and hospitals to carefully assess the risks of using talc, particularly in procedures involving otherwise healthy patients.
The decision serves as a stark reminder of the need for greater transparency in product labeling and patient consent, ensuring individuals are fully informed of potential risks before undergoing treatments.
While Cimbar Performance Minerals expressed disappointment in the outcome and is exploring post-trial appeals, the verdict stands as a powerful precedent, potentially influencing future cases involving similar exposures.
It also delivers a profound message about the human cost of corporate negligence, as evidenced by the Zundels’ ongoing suffering. With Bryce Zundel continuing to battle the aggressive disease and facing a difficult prognosis, the jury’s award recognizes not only his physical and emotional toll but also the immense losses experienced by his wife, Diane.
As the first case of its kind involving talc-related mesothelioma from a medical procedure, this ruling may reshape how both legal and medical professionals approach such exposures.
The outcome underscores the necessity of ensuring product safety in healthcare environments and could lead to broader discussions about the long-term risks associated with talcum powder in medicine.
Ultimately, this landmark decision brings justice to the Zundels while advocating for greater caution in future medical practices involving potentially hazardous materials.
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