J&J TALCUM POWDER CAUSES MESOTHELIOMA – WHO KNEW AND WHEN?
By Mark A. York (April 12, 2018)
(MASS TORT NEXUS MEDIA) In a very loud and direct voice, Johnson & Johnson and their talc supplier, Imerys SA suffered an additional $80 million in punitive damages award on top of the initial $37 million jury verdict awarded last week. This brings the total trial verdict to $117 million they must pay to a retired New Jersey husband and wife, after a trial found that plaintiff Stephen Lanzo’s decades long use of J&J talcum powder products caused him to be afflicted with mesothelioma. A fatal form of cancer not often affiliated with use of talcum powder products.
The Middlesex County, New Jersey, jury ordered the companies to pay $80 million in punitive damages Wednesday, after post-trial arguments on punitive damages. Last week, the jury awarded the Mr. Lanzo $30 million in compensatory damages and his wife $7 million in damages.
Lanzo claims his use of Johnson & Johnson name brand products like Shower to Shower and Baby Powder for more than 30 years, and that inhaling the powder caused his mesothelioma, an aggressive and deadly cancer that impacts the lining of the lungs. The $80 million in punitive damages in J&J’s home state of New Jersey, where traditionally they have avoided adverse trial verdicts, and enjoyed a “home team” sense of security, may now send a message J&J’s withholding of scientific data and information that shows their consumer product have dangers and the company has been aware for decades has come full circle.
Deposits of talc, one of Earth’s softest minerals are often located near deposits of the minerals that constitute asbestos, and studies have shown the risk of cross-contamination during mining. Johnson & Johnson said its talc products do not contain asbestos, which, it noted, has been a legal requirement since the 1970s.
SCIENCE SAYS TALC IS DANGEROUS
The debate over talc began decades ago. In the early 1970s, scientists discovered talc particles in ovarian tumors. In 1982, Harvard researcher Daniel Cramer reported a link between talcum powder and ovarian cancer. His study was followed by several more finding an increased risk of ovarian cancer among regular users of talcum powder. Cramer, who at one point advised J&J to put a warning on its products, has become a frequent expert witness for women suing the company. J&J ignored and suppressed Mr. Cramer’s attempts to show them the study data then publicly declared this research as flawed, which J&J still continues to this day.
As other talcum powder meso cancer cases are pending in courts across the country, with one set to go to trial in May in South Carolina, J&J and its affilaites may have to gear up to defend a flood of additional new cases if the talc-meso linked plaintiff verdicts continue, jury in California found in favor of Johnson & Johnson in an asbestos-related case in November 2017.
Lanzo’s case was the first to go to trial in New Jersey, where of Johnson & Johnson is headquartered, with the trial taking place in a state court versus a more traditional federal venue, where J&J are more accustomed to defending their consumer, pharmaceutical and medical device product line. If all pending litigation against J&J and its affiliated divisions for their products are totaled, you will find that the number of lawsuits being defended by J&J easily surpasses 100 thousand individual lawsuits filed in federal and state courts across the country.
Johnson & Johnson and other talcum powder companies face thousands of talcum powder cancer lawsuits elsewhere that draw a connection between genital talc use and ovarian cancer, where there are been massive verdicts as high as $400 million last year in California and in a St Louis courtroom where talcum powder ovarian cancer verdicts have totaled over $300 million in the last three years.
Johnson & Johnson is facing hundreds of additional lawsuits in a federal multi-district litigation also in New Jersey, see Johnson & Johnson Talcum Powder MDL 2738 (USDC New Jersey), this litigation is related primarily to the ovarian cancer claims brought by women across the country, who claim that J&J talcum powder products cause ovarian cancer, which combined with the emerging talc mesothelioma lawsuits, would open an entire new area of mass tort litigation for J&J and its affiliates to defend.
The Lanzos’ lawyers accused the company of holding back information from its customers about the health risks of asbestos in its talc products since the 1960s. This has bene a key plaintiff legal strategy in most every case against J&J, as they have been found to have made concerted and boardroom facilitated efforts to suppress and change public opinion about their product dangers.
Efforts to conceal this fact included J&J’s paying respected medical, science and other respected researchers to write and publish article and research papers mitigation the adverse findings posted in independent journals alleging that asbestos was found in talc products. Trial testimony also showed that J&J had made multiple and unsuccessful attempts to remove asbestos from their talc products, dating back to the 1970’s, yet at trial they claimed there was no asbestos risk in their talcum powder products. With one defining trial comment being “Why do you try so hard to get it out, it’s because it is there,” which would seem to define plaintiff claims that J&J was aware of the risks long ago.
Johnson & Johnson argued that it did extensive testing to make sure its products were not contaminated. The science J&J relies on has been the subject of research since at least 1975 and many times the findings were found to be adverse to the consumer product giants sales and marketing agenda, and were often discredited by an organized corporate strategy.
“Johnson’s Baby Powder has been used for more than 120 years and it does not contain asbestos or cause mesothelioma,” the company offered. “After suffering multiple losses through court rulings and at trial, plaintiff’s attorneys have shifted their strategy and are now alleging that talcum powder is contaminated with asbestos, despite multiple independent, non-litigation-driven scientific evaluations which have found that our baby powder does not contain asbestos.
“Throughout this trial, we were prevented from presenting evidence we believe would have been important to the jury in their deliberations, which forced us to file multiple mistrial motions. We will continue to defend the safety of Johnson’s Baby Powder and immediately begin our appeal, and we believe that once the full evidence is reviewed, this decision will be reversed.”
The Lanzo trial started on January 29, 2018 and was closely watched as the first “talc” lawsuit to go to trial in Johnson & Johnson’s home state over allegations that talcum-based hygiene products like Baby Powder and Shower to Shower contained asbestos and that J&J failed to warn of the risk as well as hid data that showed asbestos was in its products. The asbestos allegations are now an evolving legal fight for J&J, as most prior litigation over its Baby Powder and Shower to Shower products were over claims that the products have caused ovarian cancer in women. Those 5 cases case have been in the Missouri and California state courts over the last 2 years, with plaintiffs winning all but 1 of those trials, see J&J Talcum Powder Litigation, Missouri State Court, St Louis County Docket.
J&J DID WIN 1ST CALIFORNIA MESO TRIAL
Of note is the California court trial verdict of November 16th where J&J did win a victory in the first mesothelioma trial; where J&J and co-defendant Imerys Talc America successfully defended claims by plaintiff Tina Herford that J&J’s Baby Powder caused
Suppressing adverse research findings and manipulating science related to discoveries that Johnson & Johnson products pose significant health risks are cornerstones of most litigation against J&J and its various medical products divisions, often resulting in much higher verdicts based on the intentional failure to warn and failure to disclose the dangers to consumers. Often the trial data shows that J&J has been aware of many dangers as far back as the middle 1970’s, and yet they went to extraordinary lengths to suppress this information from being released to the marketplace and consumers.
J&J was defended by the Chicago firm of Kirkland & Ellis LLP a highly respected and very aggressive defense firm, who are rather new to the J&J world of medical device litigation and were unsuccessful. They argued that any link between talc products and mesothelioma is based on the tried and sometimes untrue defense of faulty testing methods, and plaintiff claims of limited and outdated studies, defense counsel even went so far as to state that Lanzo was exposed to asbestos in his childhood home and at school.
Defense claimed that J&J’s products never contained asbestos, and that they have performed careful testing to confirm that, which based on the jury verdict fell on deaf ears.
WHO’S LIABLE IF MESO-TALC LITIGATION EXPLODES
While the ovarian cancer cases have dominated the headlines, the cosmetic talc asbestos contamination cases may present the bigger risk to defendants and a much greater reward to plaintiff counsel. Thousands of companies used cosmetic talc in their products over the last hundred years. The entire population could claim exposure, especially to defendants that sold personal care products that could be ingested, inhaled or exposed via air-borne contact. The risk is that the cosmetic talc defendants become the defendant of last resort when a plaintiff has no other convincing credible sources of exposure to asbestos, especially when the original product source is now a bankrupt entity.
Science of Cosmetic Talc Claims: While it may be difficult to challenge long-established trigger approaches if a talc claim involves a claim of asbestos contamination, ovarian cancer talc claims may require a new look at trigger issues because the underlying science of how talc exposure may cause ovarian cancer is different from how asbestos inhalation damages the respiratory system. Having learned from previous trigger battles in asbestos, the insurers are likely to challenge the science that the first exposure to cosmetic talc causes injury that can be associated with the development of ovarian cancer and characterized as “bodily injury” as required in their policies. They may seek out scientific opinion that ovarian cancer caused by cosmetic talc is not progressive in nature, and thus not warranting the imposition of a continuous trigger. And, generally, the insurers will likely seek to limit the spread of potentially triggered policies to as few years as possible, and as close to the manifestation of the disease as possible.
DOES J&J TALCUM POWDER CAUSE CANCER?
Johnson & Johnson has been ordered to pay nearly $1 billion in total damages after just 5 trials, alleging its baby powder is causing ovarian cancer, all jury verdicts have been in state courts in Missouri and California, see J&J Talc Trials St. Louis Missouri.
Talc, a mineral composed of magnesium, silicon, oxygen and hydrogen, is used extensively in cosmetics and personal care products. Women sometimes use talcum powder on their genital areas, sanitary napkins or diaphragms to absorb moisture and odor – contrary to the guidance of most physicians. (Asbestos, linked to lung cancer, was once an impurity in talc, but it has been banned for several decades.) J&J is notorious for using any means possible to influence scientific data and opinion as well as manipulating research reports and public media commentary by industry experts. The recent California trial showed payments made to previously perceived impartial Science Council members, who were declaring publicly that J&J talcum powder does not pose a cancer risk, the Los Angeles jury did not agree with J&J and other pro-talc defense team members, as over $300 million of the total $417 million judgment was for punitive damages, usually awarded for intentional misconduct, see “New Evidence of Johnson & Johnson Bad Conduct Moved LA Jury to Award $417 Million Talc Verdict”.
His studies and the many others that have found a relationship used a case-control approach. A group of women diagnosed with ovarian cancer and a group without it were asked to recall their past diet and activities, and the results were then compared.
Critics say these kinds of studies have serious drawbacks, particularly “recall bias.” Women may forget what they did or, if diagnosed with cancer, might inadvertently overestimate their use of a suspect substance. People without a serious disease may be less motivated to remember details.
Three other studies – considered cohort studies – did not find any overall link. Unlike the case-control studies, these efforts began with a large group of women who did not have cancer and followed the progress of their health, with participants recording what they were doing in real time. The results of this approach, most scientists say, are stronger because they aren’t subject to the vagaries of memory.
One such study included more than 61,000 women followed for 12 years as part of the National Institutes of Health’s well-respected Women’s Health Initiative.
IS “MESOTHELIOMA TALC” THE NEW MASS TORT?
Two recent verdicts for asbestos contamination demonstrate the risk to cosmetic talc defendants. In October 2016, a Los Angeles County jury awarded $18M to Philip Depolian against Whittaker, Clark & Daniels finding it 30% responsible for his mesothelioma due to his alleged exposure to various cosmetic talc products used at his father’s barbershops that contained asbestos. The jury apportioned liability against various cosmetic talc defendants that had settled and several other cosmetic talc product defendants that sold products including Old Spice, Clubman, Kings Men and Mennen Shave Talc.
In 2015, another Los Angeles jury awarded Judith Winkel $13M against Colgate-Palmolive for mesothelioma allegedly caused by exposure to talc in its baby powder. The jury rejected Colgate and its experts’ claims that the cosmetic talc at issue was not contaminated by asbestos and that the talc in question were non-fibrous “cleavage fragments” unlikely to be inhaled or embedded in the lungs. Although details of the trial are not readily verified, at least one report indicated that evidence presented at trial showed that the talc contained 20% asbestos fibers.
These cases are particularly important because the defendants were held responsible for cosmetic talc containing asbestos and for having caused mesothelioma and not ovarian cancer as in the earlier J&J talc cases. Further, both juries found that the defendants acted with malice. However, the cases were confidentially settled before the respective punitive damage phases.
Will “Talc Mesothelioma” be the next mass tort against Johnson & Johnson and its affiliates? Mass Tort Nexus will continue to report on this as additional information becomes available.
The Stephen Lanzo case docket can be found under: Lanzo v. Cyprus Amex Minerals Co, et al., Docket No. L00738516 in Middlesex County Superior Court.