Marion County’s asbestos docket finds disputed issues of fact on both causation and punitive damages, clearing the way for claims over Dr. Scholl’s foot powder and CoverGirl cosmetics to proceed.
On September 23, 2026, the Marion County Superior Court, Civil Division Room 13 — Indiana’s mass tort asbestos docket — denied motions for summary judgment filed by Merck & Co., Inc. and Noxell Corporation in Williams v. BASF Catalysts LLC, et al., Cause No. 49D13-2601-CT-004010. In each order, the Court held that disputed issues of material fact exist regarding causation and punitive damages, making summary judgment inappropriate.
Both companies remain in the case, and the plaintiffs’ punitive damages claims survive along with their liability claims.
Diving Into the Allegations in This Lanier Law Firm Mesothelioma Case
The plaintiff was diagnosed with malignant mesothelioma in September 2025. She and her husband allege the disease was caused by decades of exposure to asbestos-contaminated talc in ordinary consumer products.
The plaintiff began using Dr. Scholl’s foot powder around 1971, while in college, and used it for roughly fifteen years. She testified that each application sent visible plumes of white powder into the air in front of her face, in a closed bathroom or bedroom. Separately, beginning around 1967 and continuing into the early 2000s, she used a full line of CoverGirl cosmetics — liquid foundation, pressed powder, loose powder, blush, bronzer, eyeshadow, eyeliner, and mascara.
What the Defendants Argued
Both defendants sought summary judgment on the ground that the plaintiffs could not connect a specific product to a specific exposure. Merck argued there was no evidence that the foot powder even contained talc, let alone asbestos, pointing to her inability to recall the label, the ingredients, or the container size, and characterizing the claim as speculation under Indiana authority requiring more than conjecture to establish proximate cause. Noxell argued there was no evidence that the CoverGirl products contained contaminated talc, no evidence that her use generated significant respirable dust, and no clear and convincing evidence to support punitive damages.
That argument — she cannot remember, so she cannot prove it — is the standard defense playbook in cosmetic talc cases, and it is designed to end cases before a jury ever hears them.
“Merck and Noxell asked the Court to treat a gap in a fifty-year-old memory as a gap in the evidence. Those are not the same thing. We showed the Court, using their documents, their witnesses, and their suppliers’ paperwork, exactly which talc went into these products and where it came from.”
— Darron E. Berquist, Managing Attorney, Asbestos Litigation Team, The Lanier Law Firm
The Truth and the Evidence Found
The Court’s denial followed a consolidated opposition that answered the product-identification defense with documents. Among the evidence plaintiffs unearthed:
- The defendants’ own supply records. Merck’s corporate representative and Dr. Scholl’s formula records identified the talc grades used in the foot powder across the relevant decades and traced them to specific suppliers and specific mines, including Montana talc from the Ruby Range and Italian talc from the Val Chisone region. Noxell’s discovery responses and corporate testimony did the same for the talc grades used in CoverGirl pressed powders, blushes, foundations, and eye products.
- Decades of historical testing of those talc sources. The evidence plaintiffs provided included a 1958 Battelle Memorial Institute report, 1972 and 1973 laboratory findings of chrysotile in the relevant grades, the cosmetic industry association’s 1973 round-robin testing, a competitor’s 1979 testing of the same Montana talc, and supplier laboratory reports from 1988 documenting fibrous material in mine samples.
- Geological evidence. Expert geologist Dr. Mark Krekeler opined that asbestos, chiefly chrysotile and tremolite, occurred in the ore bodies at the Montana and Italian mines that supplied both product lines.
- Finished-product testing. Materials scientist Dr. William Longo tested nine Dr. Scholl’s containers and reported being able to detect the asbestos in eight, including containers manufactured with the same Montana talc grade in use during the plaintiff’s exposure period. Of six CoverGirl containers tested, the asbestos was detected in five, including four pressed powders and blushes manufactured between 1981 and 1987.
- Exposure quantification. Certified Industrial Hygienist Kenneth Garza modeled the plaintiff’s personal exposure from her described use and placed it orders of magnitude above the ATSDR’s reported range for ambient background. Dr. Longo calculated that she performed more than 8,900 applications of the foot powder alone.
- Medical causation. Dr. Jacqueline Moline reviewed the record and opined to a reasonable degree of medical certainty that these exposures caused her mesothelioma.
- Notice and conduct. On punitive damages, the evidence included both companies’ active membership and leadership roles in the cosmetic industry’s trade association during the years the asbestos-in-talc question was being studied, internal memoranda, raw-material specifications that did not require asbestos testing, a supplier’s written acknowledgment that it did not test every lot, and a corporate admission that “no detectable” is not the same as asbestos-free.
Why this Ruling Matters for Cosmetic Talc Mesothelioma Litigation
Cosmetic talc defendants routinely argue that a plaintiff who cannot produce the actual container she used decades ago cannot get to a jury. This ruling reflects what we believe is the correct answer: a consumer is not required to have saved a bottle of foot powder from 1974 to prove her case. Where company records establish which talc went into which product, and where that talc has been tested, historically and today, a jury can decide causation.
The Court’s inclusion of punitive damages in both orders is equally significant. It means the designated evidence of what these companies knew, and when, is a question for the jury rather than a matter to be resolved on paper.
“By the mid-1970s the industry was holding meetings about asbestos in talc, running round-robin testing, and writing internal memos about the problem. What it was not doing was telling the women buying these products. A jury should get to weigh that.”
— Darron Berquist, Managing Attorney, Asbestos Litigation Team, The Lanier Law Firm
Asbestos-Related Diagnosis? The Lanier Law Firm Can Help
Mesothelioma from cosmetic talc often appears in people with no occupational asbestos history at all — people who used body powder, foot powder, face powder, blush, or other talc-based cosmetics for years without any reason to think they were being exposed to asbestos. Latency periods commonly run thirty to fifty years, which means exposures from the 1960s, 1970s, and 1980s are producing diagnoses now.
“If you have mesothelioma and no occupational exposure, that does not mean you were never exposed. Very often it means the exposure came from something that sat on your bathroom counter.”
— Darron Berquist, Managing Attorney, Asbestos Litigation Team, The Lanier Law Firm
The Lanier Law Firm offers asbestos litigation services in Indiana. If you or someone in your family has been diagnosed with mesothelioma and used talc-containing cosmetics or personal care products, we can evaluate your case at no cost. Statutes of limitation are short and vary by state, so we encourage you to reach out promptly. Call us at 800-723-3216 or fill out the online contact form to speak with our talented asbestos attorneys today.
Attorney advertising. Prior results do not guarantee a similar outcome. A denial of summary judgment is a procedural ruling that allows claims to proceed to trial; it is not a finding of liability, and no defendant has been found liable in this matter. The allegations and evidence described above are drawn from publicly filed court records and reflect the plaintiffs’ contentions, which the defendants dispute. This post is for informational purposes only, does not constitute legal advice, and does not create an attorney-client relationship.