Court Rules Merck, Not Bayer Responsible in Talc Lawsuits

Legislation & Litigation

Bayer AG was absolved of liability in certain cancer-related lawsuits. The cases concern talc-based foot powders that the company acquired from Merck & Co. in a more than $14 billion cash deal nearly a decade ago.

Delaware’s highest court clarified that Merck is responsible for claims that predate Bayer’s acquisition. Lawsuits claim talc used in products like Dr. Scholl’s caused cancer. 

Talc-based products have been linked in recent years to asbestos-related illnesses such as ovarian cancer, mesothelioma and asbestosis. Merck, Bayer and Johnson & Johnson have faced lawsuits claiming talc-based products caused plaintiffs’ cancer. 

Delaware Supreme Court Upholds Lower Court Ruling

Merck had claimed its liability ended on Oct. 1, 2021, seven years after selling its Claritin, Coppertone and Dr. Scholl’s product lines to Bayer. In September 2021 Merck sued Bayer for breach of contract for failing to assume liability for the product claims, according to court records.

Shortly after the deal closed, both companies began being named in lawsuits, according to a Delaware Chancery Court memorandum. In April 2023, a Delaware Chancery Court judge ruled that the 2021 date was for different indemnification obligations for Merck, but didn’t include the talc lawsuits.

In November 2023, the Delaware Supreme Court unanimously upheld the lower court’s ruling that the original owner of the talc products – Merck & Co. – is responsible for the lawsuits over sales of the products before the deal. Bayer told Reuters it was “pleased” with the latest decision, while Merck didn’t comment.

Asbestos-Contaminated Talc and Lawsuits

Because talc is one of the softest minerals on Earth, it’s used in a variety of products. For example, talc is used in crayons, chalk, rubber gloves, paint and personal care products like makeup. 

Asbestos is also a mineral that naturally occurs in the earth near talc deposits. The health effects of pure talc are still being studied, but asbestos-contaminated talc poses particular health risks. Asbestos is the primary cause of mesothelioma and other asbestos-related diseases. People who were exposed to asbestos-contaminated talc and have been diagnosed with mesothelioma or other forms of cancer can be compensated through legal action. Asbestos lawyers are actively taking new cases.

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