By Myron Levin and Stuart Silverstein
The legal assault on Johnson & Johnson and its signature baby powder reached new heights this week, when a state court jury in Missouri found the company responsible for the ovarian cancers of 22 women, and ordered the drug and consumer products giant to pay $4.69 billion in compensatory and punitive damages to the cancer victims or their survivors.
The verdict by the jury of six men and six women in St. Louis Circuit Court was by far the largest yet in the mushrooming baby powder litigation.
The six-week trial bundled together 22 ovarian cancer claims, five involving women from Missouri and 17 from various other states. Several of the women are deceased, and family members carried on their lawsuits. All contended that asbestos exposure from longtime use of Johnson’s Baby Powder or another talc product, Shower to Shower, had caused or contributed to the illnesses. Each claim won compensatory damages of $25 million, for a total of $550 million. Then the jury came back later in the afternoon with a punitive damages award of $4.14 billion, and Johnson & Johnson quickly vowed to file an appeal.
The jury decided against Johnson & Johnson on the plaintiffs’ claims of strict liability and negligence for producing unsafe products and failing to warn of the dangers.Days before the start of the trial, J&J’s talc supplier, Imerys Talc America, Inc., reached an out of court settlement with the plaintiffs, leaving J&J and its Johnson & Johnson Consumer Cos., Inc. subsidiary as the lone defendants. The settlement amount was not announced, but Bloomberg reported that Imerys agreed to pay at least $5 million.
There had been six previous trials of talc powder-ovarian cancer lawsuits, with five ending in plaintiff victories and jury awards in the tens of millions of dollars. Three of the five verdicts have since been overturned—two by Missouri appeals courts and one by a post-trial ruling of a California judge.
But in those cases, plaintiff lawyers contended that talc itself—not asbestos or any other contaminant—was the cause of ovarian cancer. Plaintiffs claimed that through years of routine use of talc powders for feminine hygiene, talc particles had migrated through the genital tract to the ovaries, causing inflammation that resulted in cancer.
The latest case, called Ingham v. Johnson & Johnson and named for plaintiff Gail Lucille Ingham, was the first to claim that plaintiffs were heavily exposed to asbestos through years of dusting powder on their babies or themselves—and that this led them to contract ovarian cancer.
Talc, the softest known mineral, is sometimes contaminated by naturally occurring asbestos. The plaintiffs introduced numerous test reports that they said showed that Johnson & Johnson knew for decades that traces of asbestos were present in its talc deposits and even finished powders. J&J contended that there has never been asbestos in its body powders, and that they are not carcinogenic.
At times the case featured numbing technical debate over proper ways to test for asbestos, and whether microscopic mineral particles found in talc ores and finished powders should be classified as asbestos or something else.
In his theatrical closing argument, Mark Lanier, a famed Houston plaintiff attorney, cited numerous tests over the years that he said showed there was asbestos in the talc mines used by J&J, and in the finished powders. But he said the company rigged tests to avoid detecting asbestos, or chose to define asbestos particles as non-asbestos minerals.
“Faced with all this, what does the company do? The company suppressed the truth … It’s outrageous the games and tricks that they would go to, but that’s what they would do,’’ Lanier said.
“Don’t let them get away with this behavior—please don’t,’’ he implored the jury. ‘’Don’t let them get off.’’
But defense lawyer Peter Bicks said many agencies and testing labs had found J&J powders to be asbestos-free. “With all this independent testing, there is some massive conspiracy going on at Johnson & Johnson to expose babies to asbestos? Does that make common sense?”
Bicks described the plight of the plaintiffs as ‘’gut-wrenching,’’ but said that “because something terrible happened doesn’t mean that Johnson & Johnson had anything to do with it.’’
In a statement issued late today, Johnson & Johnson said the company “is deeply disappointed in the verdict, which was the product of a fundamentally unfair process that allowed plaintiffs to present a group of 22 women, most of whom had no connection to Missouri, in a single case all alleging that they developed ovarian cancer. The result of the verdict, which awarded the exact same amounts to all plaintiffs irrespective of their individual facts, and differences in applicable law, reflects that the evidence in the case was simply overwhelmed by the prejudice of this type of proceeding. Johnson & Johnson remains confident that its products do not contain asbestos and do not cause ovarian cancer and intends to pursue all available appellate remedies. Every verdict against Johnson & Johnson in this court that has gone through the appeals process has been reversed and the multiple errors present in this trial were worse than those in the prior trials which have been reversed.”
In his written statement, plaintiff lawyer Lanier said: “We hope this verdict will get the attention of the J&J board and that it will lead them to better inform the medical community and the public about the connection between asbestos, talc, and ovarian cancer. The company should pull talc from the market before causing further anguish, harm, and death from a terrible disease. J&J sells the same powders in a marvelously safe corn starch variety. If J&J insists on continuing to sell talc, they should mark it with a serious warning.”
Over the last three years, J&J has been engulfed in lawsuits claiming that its talc powders caused cancer, with the number of claims rising fast. Some 9,100 cases were pending against the company as of April 1, according to its latest quarterly report. The vast majority of the suits involve ovarian cancer, although some assert that inhalation of dust from contaminated powder caused mesothelioma, a rare form of cancer typically caused by asbestos exposure.
It’s clear that most cases will never be tried, but verdicts in initial trials are likely to strongly influence the size of settlements of many other cases.
Although J&J faces the greatest legal exposure, it’s not the only company to be targeted in talc powder litigation. For example, Colgate Palmolive faces 199 suits involving the Cashmere Bouquet powder it marketed until 1996, according to its latest quarterly report. Colgate has settled some lawsuits, including a mesothelioma case just prior to the start of the scheduled trial this week in Los Angeles.
This story was produced by FairWarning (www.fairwarning.org), a nonprofit news organization in Southern California that focuses on public health, consumer and environmental issues.
Trial coverage was streamed courtesy of the Courtroom View Network (https://cvn.com/).