Johnson & Johnson Hit with $4.7 Billion Talc Verdict

Talc PowderJohnson & Johnson continues to deny that talcum powder causes ovarian cancer, but juries continue to view the evidence as compelling. The most recent setback for J&J came in Missouri, where a jury awarded $4.7 billion to 22 women who developed ovarian cancer because they used talcum powder or baby powder manufactured by J&J.

The jury awarded each cancer victim (or surviving family members) $25 million. The jury also awarded $4 billion in punitive damages. That award will likely be reduced pursuant to a Missouri law that disallows punitive damages awards that exceed the greater of $500,000 or five times the amount awarded as compensatory damages.

Talc Verdicts Against J&J

More than 8,000 lawsuits have been filed against J&J alleging that the company’s talcum powder (and baby powder containing talc) caused ovarian cancer. The lawsuits generally rely on documentary evidence suggesting that J&J knew about the risk but failed to warn consumers, and on expert evidence establishing that talc caused the plaintiffs’ cancer.

Other notable verdicts against J&J include:

  • $110.5 million awarded by a St. Louis jury in May 2017 to a 62-year-old woman who used J&J products containing talc for more than 40 years before developing ovarian cancer
  • $117 million awarded by a New Jersey jury in April 2018 to a man who argued that J&J talcum powder and Shower-to-Shower caused his mesothelioma, a form of cancer that is linked to asbestos

Talc is often mined from rocks that also create asbestos fibers, creating the risk of contamination. Asbestos fibers have long been linked to cancer.

While J&J denies that asbestos is present in its products, it has struggled with evidence that talc itself causes ovarian cancer, and has been accused of hiding evidence that its products are carcinogenic. J&J’s strategy has been to attack the science, given that experts cannot provide a definitive reason why talc causes cancer. Yet plaintiffs are only required to prove that it does cause cancer, and juries have repeatedly agreed that the scientific evidence establishes causation.

Appeals from Talc Verdicts

Johnson & Johnson has had some success overturning jury verdicts in talc cases, although not always on the merits of the plaintiffs’ claims. The Missouri Court of Appeals reversed verdicts of $55 million and $72 million for cancer victims after the United States Supreme Court limited the ability of plaintiffs to sue corporations in states where the plaintiff does not reside. The Supreme Court concluded that a corporation can be sued in a state where corporate conduct (such as the sale of its products) harmed the plaintiff, as well as the state where the corporation is headquartered, but cannot usually be sued in a state that has no connection to the plaintiff’s harm.

A California verdict against J&J for $417 million was recently overturned by the trial judge, who concluded that the plaintiff’s evidence was insufficient to prove causation. The plaintiff relied on testimony by her gynecologist that decades of talcum powder use was the most probable cause of her ovarian cancer. The judge’s ruling is puzzling since the trial judge ruled during the trial that the expert testimony would allow a jury to return a verdict in the plaintiff’s favor. The plaintiff is challenging the trial judge’s “about face” on appeal.

The Future of Talcum Powder Litigation

Most of the 22 plaintiffs who received the $4.7 billion verdict were not Missouri residents. They may face an appellate rejection of the verdicts in their favor for lack of jurisdiction, although J&J’s jurisdictional challenges will not affect five plaintiffs who resided in Missouri and used J&J products that they purchased in Missouri.

The jurisdictional arguments raised against nonresident plaintiffs may be difficult to overcome, but the plaintiffs’ lawyers contend that they have “hundreds of pages of evidence” establishing that J&J conducted lobbying and used baby powder focus groups in Missouri. Whether that evidence is sufficient to establish that J&J engaged in activity in Missouri that contributed to the harm suffered by nonresident plaintiffs is unclear.

However, the plaintiffs’ lawyers also presented evidence that fifteen nonresident plaintiffs used a talc-based J&J product that was manufactured in Missouri. That evidence may be sufficient to link harmful conduct in Missouri to the nonresident plaintiffs’ cancer. While J&J argues that it only manufactured that product for a short time, the fact that it manufactured any talc-based product in Missouri that the women used may be sufficient to link harmful corporate conduct in Missouri to the harm the plaintiffs suffered.

Regardless of the appellate outcome in the most recent Missouri case, opportunities that J&J has had to earn appellate victories in talcum powder cases are likely dwindling. Plaintiffs lawyers are learning from appellate decisions. They are unlikely to bring future cases that face serious jurisdictional hurdles (and have dismissed hundreds of cases that would not have passed jurisdictional scrutiny, perhaps with the intent to refile them in the plaintiffs’ states of residence). They have also assembled the kind of scientific evidence that most judges consider adequate to allow a jury to make a finding of causation.

As the road to victory narrows, J&J may decide to alter its strategy and to begin serious settlement negotiations with plaintiffs who have developed cancer after years of using J&J products containing talc. The company may also decide that the time has finally come to warn female consumers that using talcum powder or baby powder in their genital area might create a risk of ovarian cancer.

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