It does not look like it will be a good year for Johnson & Johnson. Last month, the company lost its motion to overturn a $4.7 billion jury verdict in favor of 22 plaintiffs who alleged that asbestos found in Johnson & Johnson’s Baby Powder and other talc products caused their ovarian cancer. The verdict, which consisted of $4.14 billion in punitive damages and $550 million in compensatory damages, is the sixth largest products liability verdict in U.S. history. Judge Rex Burlison of the 22nd Circuit Court of Missouri upheld the record-breaking verdict in Ingham, et al. v. Johnson & Johnson, et al., finding that the company “knew of the presence of asbestos in products that they knowingly targeted for sale to mothers and babies, knew of the damage their products caused, and misrepresented the safety of these products for decades.”
In seemingly direct response to the ruling, Johnson & Johnson stock sharply fell more than thirteen percent, losing $45 billion in market value. Now in damage control mode, the company has announced a $5 billion stock buyback plan and has taken out full-page advertisements in various news publications lauding the safety of its products. However, if the reports at trial are any indication, Johnson & Johnson will be fighting an uphill battle in proving the safety of its products.
The Link Between Asbestos-Contaminated Talc and Ovarian Cancer
The plaintiffs in the Ingham trial consisted of 22 women, six of whom are deceased and are represented by their families in wrongful death claims against Johnson & Johnson. Though each plaintiff’s individual circumstances differed, they shared one common factor – consistent usage of Johnson & Johnson’s talc products. For example, Krystal Kim, a 53-year old mother and one of the plaintiffs in the action, began using Johnson & Johnson’s Baby Powder at ten years old. She continued to use the product for decades on her body and sheets. Five years ago, Ms. Kim was diagnosed with invasive ovarian cancer. She underwent chemotherapy and had to remove parts of her colon and intestines.
The claim that their products contain asbestos and cause cancer is not new to Johnson & Johnson. According to sealed company documents that were partially admitted at trial, the company allegedly knew of asbestos contamination in its talc products since at least the 1970s. In December 2018, Reuters and the New York Times both published special reports detailing these internal documents, the bulk of which were designated as confidential during trial and obtained through the Freedom of Information Act. The reports found that “from at least 1971 to the early 2000s, the company’s raw talc and finished powders sometimes tested positive for small amounts of asbestos, and that company executives, mine managers, scientists, doctors and lawyers fretted over the problem and how to address it while failing to disclose it to regulators or the public.”
The earliest reports of contaminated talc were found in 1957 by a consulting lab that had discovered the contaminants in talc from the company’s Italian supplier. Despite similar findings made throughout the decades, Johnson & Johnson continuously maintained to the U.S. Food and Drug Administration that no asbestos was “detected in any sample.” Although most internal testing conducted by Johnson & Johnson did not yield asbestos, the company’s testing methods can allow trace amounts to go undetected, while also only testing a tiny fraction of its talc. Notably, asbestos is a known carcinogen that is often found near the mineral, talc, during the mining process. According to the World Health Organization, there is no safe level of exposure to asbestos.
The reports on the Johnson & Johnson documents unearthed decades of internal memos sent by and between top executives of the company concerning asbestos contamination in its products. New testing procedures were proposed with simultaneous attempts to discredit the research indicating contamination. Most concerning, in one instance, the company demanded that the government prevent these findings from being made public. As one official from the Food and Drug Administration assured in a memo, the findings would be released “over my dead body.”
Despite Johnson & Johnson’s efforts, tests conducted over the past few years by various plaintiffs’ experts have found evidence of asbestos contamination in talc. The link between asbestos and ovarian cancer has also been indicated by the International Agency for Research on Cancer. As Mark Lanier, the plaintiffs’ attorney in the Ingham case, states: “There’s no ambiguity…It’s a no-brainer that asbestos causes ovarian cancer…That’s not an argument anyone will win.”
Future Litigation
The company currently faces over 10,600 lawsuits alleging that its talc-based products cause cancer. However, the result of each individual case is not always easy to predict. In 2016, Johnson & Johnson lost three lawsuits in Missouri state court, with damages awards totaling $55 million, $70 million, and $72 million, respectively, to plaintiffs who developed ovarian cancer after continued use of the company’s products. However, two of these verdicts were overturned on appeal on jurisdictional grounds, which the company is hoping to repeat in the Ingham case. A $417 million jury verdict in Los Angeles this past year was also reversed by the trial judge, who found that the evidence did not support the verdict. Similarly, two New Jersey lawsuits were dismissed after the plaintiffs’ experts could not establish a causal connection between the products and ovarian cancer.
On a related note, the company has also faced numerous lawsuits filed by plaintiffs alleging their products cause mesothelioma, a cancer that affects the lining of internal organs and which is also caused by asbestos. This past year, a New Jersey jury awarded $117 million in damages to a man who developed mesothelioma after using Johnson & Johnson’s Baby Powder products for years. The company has won three mesothelioma cases, with four others being declared mistrials.
As the litigation mounts, one constant remains – Johnson & Johnson continues to maintain that its products are safe and that its talc has been tested by scientists for decades. However, as the first of its kind to go to trial, the Ingham verdict has further established that the link between Johnson & Johnson talc products and ovarian cancer is an issue that will undoubtedly be further explored as more and more litigation unfolds.
