The $1.6M verdict in Kaenzig v. Charles B. Chrystal Co. involved a rarely reported on case of mesolthelioma caused by asbestos in cosmetic-grade talc. Typical asbestos cases involve industrial disease aspects. In fact, plaintiff’s counsel in Kaenzig wasn’t aware of any other talc-related verdicts. It’s believed that this case is the first of its kind to survive appeal.
The appeal was decided on March 27, 2015 by a three-judge panel consisting of Judges Carmen Alvarez, Alexander Waugh Jr. and Harry Carroll. The panel affirmed the verdict that awarded plaintiff Steven Kaenzig $1.4M and an additional $200,000 for his wife’s loss of consortium, finding that the trial court had correctly addressed all of the issues raised in the appeal.
Kaenzig was originally decided in the fall of 2013. Plaintiff had sued multiple companies in the product channel as is customary in such a case. All were dismissed except Whittaker Clark & Daniels, the primary supplier of raw talc for a factory, owned by Shulton that made Old Spice and Desert Flower talcum powder. The raw talc was contaminated with asbestos.
Kaenzig, 47, was diagnosed with malignant peritoneal mesothelioma in 2011. He claimed that, until he was eight years old, he was exposed to asbestos on his father’s work clothes on a daily basis. Kaenzig’s exposure ceased when the factory relocated in 1975 in a move “motivated by complaints from purchasers of some of Shulton’s ‘high-priced’ products that its product containers were coated with talc dust.”
Kaenzig’s father, Wilfred, testified that despite brushing talc from his hair and clothing some always remained. Plaintiff was exposed to the contaminated talc when his father played with him right after arriving home from work. Kaenzig’s mother added that she washed her husband’s clothing while near her son, which furthered the exposure.
Steven Kaenzig underwent multiple treatments for his mesothelioma, including removal of his abdominal lining, gallbladder, part of his colon, and tumors in his chest cavity and pelvic areas. Nodules in his liver, diaphragm, right testicular vessels, rectum, and bladder were also removed.
Following surgery, Kaenzig took chemotherapy for four months. This treatment caused weight loss (40 pounds) and an inability to eat solid food. It also caused nausea and liver abnormalities. He returned to work immediately after chemo, not because he was feeling better, but because he needed the money, a point that became important on appeal.
Defendant Whittaker Clark’s appeal was based on denial of motions and inclusion/exclusion of evidence. Defendant argued specifically that the testimony regarding the Kaenzig’s financial difficulties was irrelevant and nothing more than an emotional invitation for sympathy from the jury. However, as no such objection was made at trial, Whittaker Clark had to show plain error and failed.
The court held that plaintiff’s financial trouble were relevant in that they explained why he returned to work before being fully recovered. An inference by the jury that he was fully recovered may have resulted in inappropriately discounted damages, according to the trial court. Further, the trial judge, Vincent LeBlon, issued a jury instruction against such sympathy.
Defendant also appealed the trial court’s refusal to compel Kaenzig’s team to provide test results on “vintage” samples of Old Spice produced at the factory that employed Kaenzig’s father. These results were not admitted as evidence due to a chain of custody question, but Whittaker Clark wanted the raw data so it could be examined by one of their experts.
The appellate court ruled that there was no evidence that the samples were “mishandled, tampered with or altered” and, therefore, defendant did not show the required “exceptional circumstances” to compel such discovery from an expert who was not going to appear at trial. Further, the court stated that defendant “failed to demonstrate why it could not procure its own ‘vintage’ samples for testing, just as plaintiffs did.”
The survival of this verdict sets a precedent for future cases of talc-based asbestos exposure. Plaintiff’s counsel already has three pending cases in New Jersey. As this particular type of exposure is brought into the light of public knowledge, it is quite likely that we will see more cases like Kaenzig’s.