By Susan Lasser, J.D.
A St. Louis jury on July 12 awarded nearly $4.7 billion—including $4.14 billion in punitive damages—to 22 women and their families who alleged that decades of daily use of Johnson & Johnson’s asbestos-containing talcum powder products caused their ovarian cancer. A jury of six men and six women heard six weeks of testimony, and returned their verdict after eight hours of deliberation, according to a news release issued by The Lanier Law Firm, which represented the plaintiffs. The first phase of the verdict resulted in $550 million in compensatory damages against the talc powder manufacturer (Ingham v. Johnson & Johnson, 1522-CC10417, Burlison, R.).
The law firm release noted that juries in other trials relating to asbestos-containing talc products have determined that those products caused mesothelioma cancer. This case, however, was the first verdict in the United States finding that asbestos-containing talc powder caused ovarian cancer. Evidence was presented at trial that Johnson & Johnson’s Baby Powder and Shower to Shower products have been "laced" with asbestos for decades, despite representations to the contrary made by Johnson & Johnson to the Food and Drug Administration (FDA) and others.
Complaint. The second amended complaint by the women alleged that Johnson & Johnson’s talcum powder products were almost entirely composed of the inorganic mineral talc mined by Imerys Talc America, Inc., f/k/a Luzenac America, Inc., which advertised and marketed talc as safe for human use. The complaint maintained Johnson & Johnson advertised Johnson’s Baby Powder as providing "freshness" and "comfort," and absorbing excess water. Advertising for the powder specifically targeted women, the complaint said, by asserting, "For you, use every day to help feel soft, fresh, and comfortable." Similarly, advertising for Shower to Shower touted the product as safe for use by women with the slogan, "A sprinkle a day keeps odor away." Women were also advised that "Shower to Shower can be used all over your body." The women used the products to dust their perineum for feminine hygiene purposes, and alleged that this was "an intended and foreseeable use" of these products based on the talc products’ labeling, marketing, and advertising.
The complaint also chronicles that the first study to suggest an association between talc and ovarian cancer was conducted in 1971. In 1982, the first epidemiologic study was performed on talc powder use in the female genital area, finding a 92 percent increased risk in ovarian cancer in women who reported genital talc use. Approximately 22 other epidemiologic studies have been released since 1982 providing data as to the association between talc and ovarian cancer. Nearly all reported an elevated risk for ovarian cancer associated with genital talc use in women, the complaint asserts. In addition, in 1993, the United States National Toxicology Program published a study on the toxicity of non-asbestiform talc and found clear evidence of carcinogenic activity. Talc was found to be a carcinogen, with or without the presence of asbestos-like fibers.
The complaint describes a letter sent by the Cancer Prevention Coalition to the C.E.O. of Johnson & Johnson in 1994 informing the company, among other information, that studies going back to the 1960s showed that "the frequent use of talcum powder in the genital area pose[d] a serious health risk of ovarian cancer." Then in 2006, the International Association for the Research of Cancer (IARC), of the World Health Organization, published a paper in which it classified perineal use of talc based body powder as a "Group 2B" human carcinogen. Also in 2006, Imerys Talc began placing a warning on the Material Safety Data Sheets (MSDS) it provided to Johnson & Johnson regarding the talc it sold to the manufacturer. The MSDSs provided the warning information about the IARC classifications and included further warning information. The complaint alleged that Johnson & Johnson had a duty to know and warn about the hazards associated with the use of the maker’s talc products, but failed to inform its users appropriately. Moreover, the women alleged that Johnson & Johnson "procured and disseminated false, misleading, and biased information" about the safety of the manufacturer’s talc products to the public and "used influence over governmental and regulatory bodies regarding talc." The claimed that as a "direct and proximate result" of the manufacturer’s conduct, they were injured and suffered damages in the form of ovarian cancer, requiring treatments and surgeries.
The complaint also included the assertion that a feasible alternative to the talc powder products existed in the form of cornstarch, with no known health effects, and that cornstarch powders have been sold and marketed for the same uses with nearly the same effectiveness. The women and their families alleged nine causes of action against Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc. (collectively, Johnson & Johnson), and Imerys Talc America, Inc., including strict liability for failure to warn, negligence, breach of express and implied warranties, civil conspiracy and concert of actions, punitive damages, and negligent misrepresentation.
Trial. During the trial, Mark Lanier, lead trial counsel for the women and their families, offered scientific expert evidence to explain how the carcinogen asbestos is intermingled with the mineral talc, which is the primary ingredient in the products at issue. In addition, medical experts testified that microscopic asbestos fibers enter the body when talcum powder is inhaled or applied to the genital area, and that asbestos fibers and talc particles were found in the ovarian tissues of many of the women. Mr. Lanier argued, "For over 40 years, Johnson & Johnson has covered up the evidence of asbestos in their products," and stated that he and the plaintiffs were hopeful that the verdict would lead Johnson & Johnson "to better inform the medical community and the public about the connection between asbestos, talc, and ovarian cancer." He also suggested that the manufacturer "should pull talc from the market before causing further anguish, harm, and death from a terrible disease," and he asserted that Johnson & Johnson "sells the same powders in a marvelously safe corn starch variety."
The news release noted that many of the women took the stand at trial to talk about their use of the talc products and how ovarian cancer affected the quality of their lives, and that six of the women had died and were represented by husbands and family members.
Johnson & Johnson statement. Johnson & Johnson issued a statement concerning the verdict in Missouri, stating that it was "deeply disappointed in the verdict, which was the product of a fundamentally unfair process" that had "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." Further, the verdict awarded the exact same amounts to all plaintiffs irrespective of their individual facts, and differences in applicable law, which the company maintained reflected that the evidence in the case was "overwhelmed by the prejudice of this type of proceeding." Johnson & Johnson also stated that it was "confident that its products do not contain asbestos and do not cause ovarian cancer." The company intends to pursue all available appellate remedies. It noted that all the verdicts against it in the Missouri Circuit Court that have gone through the appellate process has been reversed.
The case is No. 1522-CC10417.
Attorneys: Mark Lanier (The Lanier Law Firm) and Eric D. Holland (Holland Law Firm) for Gail Lucille Ingham. Beth A. Bauer (Hepler Broom LLC) and Peter Bicks (Orrick, Herrington & Sutcliffe LLP) for Johnson & Johnson and Johnson & Johnson Co.
Companies: Johnson & Johnson; Johnson & Johnson Co.; Johnson & Johnson Consumer Companies, Inc.; Imerys Talc America, Inc.
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