Despite Efforts to Protect Itself, Merck Joins List of Companies with Talc Mesothelioma Liability
People whose mesothelioma, ovarian cancer, and other illnesses have been linked to asbestos-contaminated talc are increasingly seeking justice from the consumer companies that included the product in their products. In the face of companies like Johnson & Johnson, Colgate-Palmolive, and Avon being told to pay enormous sums to victims, others are doing whatever they can to build a wall around their companies. In a recent example, Merck & Company made an unsuccessful bid to void the terms of its own sales contract with Bayer AG to evade liability.
Merck Sale of Talc-Based Powder Division at Issue in Delaware Courts
Long before mesothelioma victims began looking at asbestos-contaminated talc as the cause of their illness, Merck & Company sold its talcum powder products division to Bayer AG. That division sold popular products including Lotrimin foot powder and Dr. Scholl’s talcum powder, both of which have been cited in pending asbestos suits, and both Merck & Co. and Bayer AG have been named as defendants.
In response to this development, the two companies began negotiating shared liability for mesothelioma and ovarian cancer claims, but those talks broke down when Merck demanded a sunset date for its responsibilities. The stalemate led to Merck suing Bayer, claiming that the sales agreement between the two specified a limit of seven years for its legal responsibilities for the product.
Review of Sales Agreement Leads to Merck Liability for Mesothelioma Claims
Despite Merck’s assertion of terms limiting its liability for harms linked to its talc-based products, Delaware’s Chancery Court determined that the agreement between the two companies included Merck’s retained product liability for products sold before the sale, and this tied them to the mesothelioma and ovarian cancer claims.
Though Merck appealed the Chancery Court’s decision to the Delaware Supreme Court, the higher court upheld lower court Vice Chancellor Nathan A. Cook’s decision about its liability. The vice chancellor’s decision pointed to language in the original agreement that “clearly and unambiguously provides that Merck indefinitely retained substantive liability for product liability claims related to products sold prior to the closing of the transaction.” This means that mesothelioma victims can continue naming Merck as a defendant in any personal injury claims that they file.
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