By Mary Pat Gallagher, From New Jersey Law Journal

A $1.6 million New Jersey asbestos verdict involving cosmetic talc that is believed to be the first of its kind has been upheld on appeal.

On March 27, a three-judge panel in Kaenzig v. Charles B. Chrystal Co. affirmed the award against South Plainfield-based talc supplier Whittaker Clark & Daniels.

The company was the primary supplier of raw talc for a plant that produced Old Spice and Desert Flower talcum powder that was contaminated with asbestos, the court said in its opinion.

Steven Kaenzig, 47, who was diagnosed with malignant peritoneal mesothelioma in 2011, claimed that during the first eight years of his life, from 1967 to 1975, he was exposed to asbestos carried home on the work clothes of his father, Wilfred Kaenzig, who worked at the Old Spice plant, owned by Shulton Inc., in Mays’ Landing, according to the opinion.

Wilfred Kaenzig’s employment and Steven Kaenzig’s claimed exposure came to an end in 1975, when Shulton relocated its talc manufacturing to Tennessee, the opinion said. The court pointed out that the move was “motivated by complaints from purchasers of some of Shulton’s ‘high-priced’ products that its product containers were coated with talc dust.”

Whittaker Clark challenged the verdict on multiple grounds, including the admission or exclusion of certain evidence and the denial of its repeated motions, made during and after trial, for judgment in its favor.

Appeals Judges Carmen Alvarez, Alexander Waugh Jr. and Harry Carroll found that the trial judge, Vincent LeBlon of Middlesex County Superior Court, decided those issues correctly and affirmed the $1.4 million in pain and suffering damages awarded to Steven Kaenzig, plus $200,000 for his wife’s loss of consortium.

It was undisputed that during the eight years in question, Whittaker Clark supplied 99 percent of the raw talc used at the Cape May plant and that Wilfred Kaenzig regularly worked with what the court described as “the injury-producing element (the contaminated friable dust) of that product.”

Wilfred Kaenzig testified that before leaving work, he would try to brush the talc dust off his hair and clothes but some always remained and that when he arrived home, he would pick up Steven Kaenzig and as he got older, play with him, before changing or showering, according to the opinion. Steven Kaenzig’s mother said she laundered her husband’s work clothes in close proximity to her son, providing another avenue of exposure.

Steven Kaenzig, who lives in Hammonton, could not recall being exposed to asbestos after 1975, and denied being exposed at his job installing fiberglass insulation. By the time he began that job, the danger was known and asbestos was no longer used to insulate, and he worked only in residences, never removed insulation and would not install any in older homes until old asbestos insulation was taken out, he said, according to the opinion. He was diagnosed in October 2011 after months of severe abdominal pain.

In 2012, Steven Kaenzig’s abdominal lining, gallbladder and part of his colon were removed, along with tumors from throughout his chest cavity and pelvic area, including nodules from his diaphragm, liver, right testicular vessels, rectum and bladder, the opinion said.

The surgery was followed by four months of chemotherapy during which he lost 40 pounds, was unable to eat solid food while experiencing nausea and liver abnormalities, the court said. Though he returned to work right after chemotherapy, he claimed he was not yet recovered. He said he went back because, as a sole proprietor, he needed the income, according to the opinion.

Kaenzig sued other companies, including Shulton and its parent, American Cyanamid Co., now Wyeth Holdings Corp., but all were dismissed, leaving just Whittaker Clark at the October-November 2013 trial.

On appeal, Whittaker Clark argued that testimony by Kaenzig and his wife about their lack of insurance and financial difficulty in paying his medical bills should have been excluded because it invited the jury to consider extraneous issues and reach a verdict based on sympathy for the plaintiffs.

Since no objection was raised at trial, Whittaker Clark had to show plain error, a burden it did not meet, the appeals court said.

Kaenzig’s financial circumstances were relevant to explain why he returned to work so soon and without it, the jury might have inferred that he had fully recovered at that time, and “discounted his damages accordingly,” the court said, noting that LeBlon instructed the jury that in awarding damages, “sympathy must play no role or part in your thinking.”

The difficulty obtaining coverage was likewise “relevant as to why Steven had not undergone any further treatment” and any prejudice resulting from the refusal to pay for the PET scan was cured by a cautionary instruction that it should be considered only for that purpose and not as “proof of the potential terminal nature of his illness or for the purposes of medical expenses,” the appeals court said.

Whittaker Clark also appealed based on LeBlon’s refusal to compel the plaintiffs to run over test results on “vintage” samples of Old Spice, produced at the Cape May plant during the 1960s and mid-1970s, which a paralegal purchased on eBay from an unnamed seller.

Plaintiffs expert Sean Fitzgerald, a geologist, tested the samples but was barred from testifying at trial about the results because a chain of custody could not be shown, according to the opinion. Whittaker Clark wanted the raw data and reports of another expert who tested the samples but who was retained for presuit review and consultation and not as a litigation expert.

The “exceptional circumstances” required to order discovery of the opinions of an expert not expected to testify at trial were lacking because the samples remained available for testing and had been turned over and there was no evidence they were “mishandled, tampered with or altered,” the appeals court said.

In addition, Whittaker Clark could have done its own testing, but didn’t, and it “failed to demonstrate why it could not procure its own ‘vintage’ samples for testing, just as plaintiffs did,” the court said.

The court rejected Whittaker Clark’s argument that it was prejudiced by a reference by the plaintiffs’ medical expert to a Shulton employee with mesothelioma.

The appeals court said there was no reversible error because LeBlon gave a quick curative instruction, with no objection or motion to strike by defense counsel, “suggesting that counsel perceived no error in the instruction.”

The appeals court also found no prejudice given that defense counsel elicited testimony from Wilfred Kaenzig that he was aware of another mesothelioma case at the Shulton plant and commented on his testimony during closing argument.

Moshe Maimon of Levy Konigsberg in New York, who, along with Leah Kagan, represents the Kaenzigs, said he was unaware of another asbestos verdict involving cosmetic-grade talc, adding that the “harm caused by asbestos-contaminated talc … has long been overshadowed by the industrial disease aspect of asbestos.”

Maimon said he has three other cosmetic talc cases in New Jersey, one involving a deceased Shulton employee and two by women who claim asbestos exposure from the use of Desert Flower and Cashmere Bouquet talcum powders, the latter of which was made by Colgate-Palmolive.

Defense lawyer Richard Mirra, of Hoagland, Longo, Moran, Dunst & Doukas in New Brunswick, declined to comment on the appeals court’s ruling.

IMAGE: Moshe Maimon (l.) and Leah Kagan of Levy Konigsberg JENNIFER VACCA

For more on this story go to: http://www.njlawjournal.com/id=1202721922426/Landmark-Asbestos-Verdict-Over-Cosmetic-Talc-Survives-Appeal#ixzz3VtX1dV1A