Johnson & Johnson, a well-known manufacturer of talcum powder, recently made front page news. Unfortunately for the pharmaceutical giant, it was not a good thing. In March 2019, an Oakland, California jury awarded a woman and her husband $29 million as compensation for damages caused to them when the wife contracted mesothelioma. The allegations, which the jury believed, were that the talcum-based Baby Powder she used contained asbestos which is known to cause mesothelioma.
This was not the first time Johnson and Johnson received bad press. Last year in Los Angeles, a jury awarded a woman $21.7 million for her asbestos-caused cancer.
In July 2018, a St. Louis jury awarded 22 women a total of $4.7 billion. They all claimed they contracted ovarian cancer due to the asbestos in Johnson & Johnson’s Baby Powder, which they had all used in their genital area for years.
Of the award, $550 million was for compensatory damages and $4.14 billion for punitive damages. Punitive damages were imposed to punish the company for its egregious conduct.
Approximately 13,000 lawsuits are currently pending against Johnson & Johnson by plaintiffs who allege they contracted either ovarian cancer or mesothelioma by using Johnson & Johnson Baby Powder that contained asbestos. Recent developments may make it easier for each one of them to prove their case.
History of Johnson & Johnson’s Talcum Powder
It was 1886 when Robert Wood Johnson and his two younger brothers started the Johnson & Johnson company. They began by selling various home remedies such as mustard plaster. When customers claimed the products irritated their skin, the brothers would send them small packets of talc which was used to soothe the itching.
Not too long after, mothers began using the talcum powder on their babies’ diaper rashes. In 1894, Johnson & Johnson decided to sell their talcum powder as “Baby Powder.”
As early as 1950, Johnson & Johnson knew its Baby Powder contained asbestos. The only worries at the time was that the substance made the powder somewhat abrasive.
In the early 1970s, about the same time a link between asbestos exposure and mesothelioma was discovered, scientists began questioning the role of talcum powder in mesothelioma. Also, about that same time, the company issued a statement saying that “there is no asbestos contained in the powder manufactured by Johnson & Johnson.”
According to an in-depth investigation of baby powder conducted by Reuters and published in December 2018, it appears that Johnson & Johnson was not truthful when it announced in the 1970s that its talcum powder had no asbestos. To date, it has still not been truthful about what the company knew and when it knew it about the asbestos content of its Baby Powder.
The Reuters Report
For its report, Reuters reporters reviewed thousands of pages of internal company memos, emails, and deposition testimony that were turned over to the lawyers for some of the thousands of plaintiffs who have pending lawsuits. All of them are claiming they contracted cancer from the asbestos in the talcum powder.
The Reuters report shows that Johnson & Johnson “worried for decades that its baby powder might be laced with small amounts of asbestos.” Between 1972 and 1975, three tests by three different labs showed there was asbestos in the talc. A 1975 report found asbestos in five out of 17 samples from the chief source mine for the company’s Baby Powder. One report came back as “rather high.”
Instead of informing the Federal Drug Administration (FDA) of these studies, Johnson & Johnson sent a letter to the FDA in 1976 informing it that its talc had been tested between December 1972 and October 1973 and no asbestos was detected in any sample. It failed to tell the FDA about the 1975 tests.
Reuters did review a number of talcum powder test results that did not find asbestos. It also noted that the test method Johnson & Johnson used allowed “trace amounts of asbestos to go undetected and only a tiny fraction of the company’s talc is tested.”
A 2013 memo found by Reuters is marked up. The original version said “Our talc-based products have always been asbestos free, as confirmed by regular testing since the 1970s.” The marked-up version has deleted “have always been asbestos free” with a note inserted (we cannot say “always). The note was changed to read “Our talc-based products are asbestos free as confirmed by regular testing since the 1970s.”
Mesothelioma is an incurable type of cancer of the lining that covers organs like the heart, lungs, abdomen and testicles. The most common organs affected are the lungs. There may be treatment that can prolong a life, but it is always a terminal diagnosis.
According to the Centers for Disease Control and Prevention (CDC) mesothelioma is almost always caused by exposure to asbestos. The World Health Organization (WHO) confirms that “There is no safe level of exposure to asbestos. Cancer risks are increased even at low levels of exposure.”
The disease has a long incubation period, between 20 and 50 years. The risk does not go down even if exposure to asbestos is stopped. That means that even if Johnson & Johnson’s talcum powder is safe today and does not have asbestos, the California woman and others with similar lawsuits pending have used the powder for many years, some of those years were back when there was asbestos in the Baby Powder.
Reuters says between 1971 “to the early 2000s, the company’s raw talc and finished powders sometimes tested positive for small amounts of asbestos.” These small amounts may have been just enough to be the cause of many cases of mesothelioma.
Ovarian Cancer Lawsuits
For years, studies have shown a link between talcum powder and ovarian cancer. As early as 1982, a Harvard professor, David Cramer, found a link between ovarian cancer and a woman’s use of talcum powder. He continued with more studies that confirmed to him that the talcum powder can be a cause of ovarian cancer. He even suggested to Johnson & Johnson that it should put a warning label on its Baby Powder.
There are others who disagree with Cramer. In 2017, Cramer testified at trial on behalf of a 63-year-old woman who claimed she had used the Baby Powder between her legs since the age of 11, and now had ovarian cancer. The jury found in her favor and awarded her $417 million.
The judge in that case granted Johnson & Johnson’s motion for a new trial and said the amount of the award was excessive. Even so, it seems as though Cramer will continue testifying on behalf of plaintiffs against the Baby Powder manufacturer.
What’s Next for Talcum Powder Litigation
On March 19, 2019, the Insurance Journal reported that there are currently 13,000 talc lawsuits pending against Johnson & Johnson. The outcomes are somewhat unpredictable.
Just a few days before the large verdict by the Oakland, California jury, in another mesothelioma case, a New Jersey jury found in favor of Johnson & Johnson. That case was tried not far from the company’s headquarters.
On the same day as the New Jersey verdict for Johnson & Johnson, the company settled three other mesothelioma cases: One in California, one in Oklahoma, and one in New York. The terms of the settlements were confidential. The company made it clear that it had no wide-spread settlement plans and the cases “are one-off situations where settlement is reasonable.”
Meanwhile, back in Long Beach, California, in early April 2019 in another mesothelioma case, a jury found in favor of Johnson & Johnson. The company takes that as an overall good sign, and continues its claims that its product is safe. It says it will continue fighting the cases at trial. If it loses at trial, it expects to win on appeal.
Most of the pending lawsuits are for ovarian cancer. More than 24 trials are scheduled to take place in 2019. Some are individual cases. Others are Multidistrict litigation (MDL) in federal court. When a large number of plaintiffs have essentially the same complaints against just one defendant, the cases may be consolidated for MDL. Each plaintiff maintains his or her own attorney and damages are awarded on an individual basis.
With the large number of cases headed for trial in 2019, it should be pretty clear by the end of the year what the future has in store for any Johnson & Johnson talcum powder lawsuit. The lawsuits are proceeding under a product liability theory which requires manufacturers to warn customers about known dangers of their products.
The documents analyzed by Reuters seem to show that Johnson & Johnson knew that its Baby Powder contained asbestos, which made the product dangerous, yet the company failed to warn its customers about the danger. Johnson & Johnson claims Reuters misinterpreted its documents, but the company still has not said its talcum powder has “always been safe,” only that “it is safe.”
More than 24 juries should have their decisions by the end of the year. The future of the approximately 12,975 lawsuits that will remain may depend on the outcomes of what those juries decide.