A $72 million dollar verdict against Johnson & Johnson is the first time monetary damages have been awarded for linking ovarian cancer to the use of talc containing Baby Powder and Shower to Shower. This is a product specifically branded for feminine hygiene. This verdict may galvanize plaintiffs all over the country. It has the potential to incite class action suits and multidistrict litigation against the corporate giant.
After a three week trial, the Missouri state jury ordered Johnson & Johnson to pay $10 million in compensatory damages. In addition, they had to pay $62 million in punitive damages to the family of Jacqueline Fox. She died from ovarian cancer.
The first lawsuit against Johnson & Johnson alleging a link between talc and cancer was brought in South Dakota federal court in 2013 by the Smith Law Firm PLLC. The jury found the company guilty of negligence for failure to warn customers. However, no damages were awarded to the plaintiff.
The South Dakota plaintiff used Johnson & Johnson’s talc-based hygiene products, including Shower to Shower, on a daily basis for thirty or more years. Talc is the active ingredient found in baby powders. It is a naturally occurring mineral that helps absorb moisture, reduces friction between the skin, and prevents rashes in babies. Research group Statista found that about 19% of U.S. households use Johnson & Johnson’s brand of baby powder.
One of Johnson & Johnson’s core defenses of the product relied upon a statement made by the FDA. It claimed they found no conclusive evidence linking talc to ovarian cancer. Johnson & Johnson also argued that a warning label wouldn’t have stopped Fox or other customers from using the powder. There is competing research regarding the link. Some indicates no conclusive correlation. Some shows a 20% to 30% increase in risk of developing cancer after consistent talc exposure.
The size of the award makes it clear this Missouri jury was persuaded by the evidence linking the disease and the product. An American Cancer Society report indicates “if there is an increased risk, the overall increase is likely to very be small.”. But it notes that more research needs to be conducted.
According to Fox’s attorneys, Johnson & Johnson’s internal documents were their downfall at trial. It shows that they knew of studies connecting talc to ovarian cancer but continued to market the product. Internal memos allegedly show Johnson & Johnson intentionally choosing to gear the product towards African-American and Hispanic women. This is because these groups had the highest usage of talcum powder.
During the Missouri trial, an expert epidemiologist testified that of the 14,240 woman estimated to die from ovarian cancer, 10% will die from cancer linked to talc. Further, an expert pathologist found Talc in Fox’s ovaries, which caused inflammation and eventually, cancer.
There are currently 1,000 lawsuits in Missouri courts and 200 suits in New Jersey filed against Johnson & Johnson for similar claims. These are expected to go to trial in April and July respectively. After the outcome of Fox’s case, however, plaintiffs may have grounds to consolidate claims or go forward with class action suits. Moreover, this verdict can have a huge impact on future suits by setting the tone for how Johnson & Johnson proceeds; either by taking plaintiff’s head on at trial or choosing to settle instead.
For now, Johnson & Johnson continues to insist that the product is safe, and is expected to appeal the Missouri decision.
