On August 21, 2017, a Los Angeles jury awarded a $417 million verdict against Johnson & Johnson based upon their failure to warn an elderly woman who had terminal ovarian cancer about the potential risks posed by using their talcum products. The lawsuit was based on the fact that the company failed to put proper warning labels on its products regarding their cancer causing risks.
Eva Echevarria, the 63-year-old plaintiff, testified that she had used Johnson & Johnson’s talcum powder since she was 11 years old. She was diagnosed with ovarian cancer in 2007 and was unable to testify at her trial due to being in critical condition.
Unfortunately Ms. Echevarria’s case is not unique, and there are currently 4,500 cases around the country that the company failed to properly heed the warnings in studies where its baby powder and shower products caused cancer.
The jury award was broken up between $70 million in compensatory damages and $347 million in punitive damages. Punitive damages are meant to punish a defendant for wrongful conduct. With that size of a punitive damages award, the jury clearly felt that Johnson & Johnson’s conduct was reprehensible.
We know that the company is going to try an appeal the verdict and we will not see a decision on the appeal for some time due to the lengthy appellate process.
There were several scientific studies referenced during this trial. The company referenced a USDA study that had not found that talc products were carcinogenic. Another study from Harvard University examined 121,000 women, 78,630 of whom had used the company’s talc. Of those women, 307 of them were diagnosed with ovarian cancer. The study concluded that there was no link between the talc and cancer.
In contrast, the plaintiff referenced a 1982 study that showed 92% of women who used talc on their private parts had an increased risk of ovarian cancer. It is this increased risk that took central stage on this case.
Some believe that California was specifically chosen by the Plaintiffs because of the propensity of liberal jurors to award large damages to her.
The argument regarding failure to warn stems in part that it should be the consumer who decides for themselves what the appropriate level of risk they want to take with their bodies rather than a conglomerate making that decision for them.
This type of lawsuit has played out in other areas of the law such as cigarettes where a small plaintiff has to take on a huge conglomerate with special interests. We will have to wait and see what the appellate courts decide after the appellate process.