industrial talc powder


Judge John A. Parkins, Jr. recently upheld a $2.8 million verdict awarded to the estate of a deceased 62 year old man in a mesothelioma case .  The Simmons firm represented Plaintiffs in this case against R.T. Vanderbilt (“Vanderbilt”).  Plaintiffs argued that Vanderbilt’s NYTAL industrial talc (pdf download) contained asbestiform materials and caused Mr. Galliher’s mesothelioma.  Vanderbilt argued that those asbestiform fibers could not cause mesothelioma.  At trial, Vanderbilt moved for a mistrial based on inadmissible testimony presented to the jury and judgment as a matter of law.  Judge Parkins denied the motion for a mistrial and reserved ruling on the motion for judgment as a matter of law.  Vanderbilt renewed its motions after trial and recently the Court denied both motions (pdf download).

Motion for New Trial:

Vanderbilt moved for a new trial based on the following evidence presented to the jury which it claimed was improper:

  • Plaintiffs failed to remove certain excluded hearsay testimony from the video testimony of a Vanderbilt employee regarding asbestos being present in the talc.
  • Dr. Barry Castleman inappropriately suggested that Vanderbilt spent $16 million “buying senators and lobbying the government.”
  • Dr. Castleman inappropriately referenced Johns Manville calling Vanderbilt “liars” regarding the marketing of its talc.
  • Sean Fitzgerald inappropriately relied upon ratios derived from an excluded report in his testimony.


Judge Parkins analyzed each of Vanderbilt’s arguments and determined they did not warrant a new trial.  Considering each claim individually, he found:

  • The Vanderbilt employee’s hearsay testimony was cured through a curative instruction.  Moreover, Vanderbilt had an opportunity to review the edited tape before it was shown to the jury, but did not find the mistake prior to its presentation to the jury.  The Court noted, “Vanderbilt took a calculated risk when it sent only one counsel to try the case.”
  • Dr. Castleman gave the $16 million statement in response to questions from Vanderbilt’s attorney.  The Court struck the testimony and instructed the jury to disregard it.  Ultimately, it determined that the testimony was not significant enough to warrant a new trial.
  • Dr. Castleman testified regarding the liars comment in response to questions from Vanderbilt.  The testimony comes directly from a paragraph in Dr. Castleman’s book, about which Vanderbilt specifically asked.  Vanderbilt’s argument largely fell on deaf ears because as the Court stated, “for no obvious reason Vanderbilt’s counsel decided to venture into the minefield.”
  • The Court determined the Fitzgerald testimony was cured through curative instructions.


Given the high standard for a new trial, the Court is unlikely to grant one unless the errors are egregious.  The Court will make every effort to cure prejudice during trial through curative instructions as it did here.  Finally, the Court appears to suggest that given the complexity of asbestos trials, the last minute nature of many evidentiary rulings inherent in these trials, and the time constraints of this trial (counsel had limited time to present the case), defendants should consider sending two trial counsel or rely more heavily on local counsel to assist with daily trial preparation.

Motion for Judgment as a Matter of Law:

Vanderbilt offered the following reasons the Court should grant judgment as a matter of law in its favor:

  • Plaintiffs failed to offer sufficient testimony that Mr. Galliher worked with or around the talc on a frequent and regular basis.
  • Plaintiffs failed to offer sufficient evidence that asbestiform fibers caused Mr. Galliher’s mesothelioma.
  • Plaintiffs failed to offer evidence that Vanderbilt was on notice of the dangers of asbestiform fibers giving rise to a duty to warn.
  • Plaintiffs failed to offer evidence that Vanderbilt’s warning was inadequate.


Judge Parkins determined that the jury relied on reasonable record evidence to support its findings.  Plaintiffs offered several experts in support of their argument that asbestiform fibers in the talc caused Mr. Galliher’s mesothelioma and the jury relied on that testimony.  They also offered evidence that Mr. Galliher worked with the talc and that it contained a warning that said non-asbestiform.  Accordingly, the verdict was grounded in the evidence and Judge Parkins would not overturn the jury’s decision.


The Delaware standard for judgment as a matter of law after the jury returns a verdict is highly deferential to the jury.  Here, the pivotal issue was whether fibers in the talc could cause mesothelioma.  The best way to challenge scientific testimony in Delaware is through a Daubert challenge.  If a party’s witnesses and cross-examination of the other party’s witnesses is insufficient to convince a jury the science is inadequate, the Court is unlikely to overturn their finding.  Moreover, convincing a jury that a product cannot cause mesothelioma is a difficult proposition, when you cannot point the finger at another party as was the case here.

* Disclosure: Bill Larson served as Judge Parkins’ law clerk during the Galliher trial, but had no involvement in this decision.