Johnson & Johnson’s baby powders, popular products made from the mineral talc, bear no warning about ovarian cancer. For hundreds of women, that’s a huge problem. Now battling advanced cases of cancer, more than 1,200 women and surviving family members have chosen to stand up, filing personal injury lawsuits against Johnson & Johnson.
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Patients accuse the company, whose generically-titled “Baby Powder” product currently controls 19% of the US market, of failing to warn them about the powder’s potential risks.
Medical researchers, on the other hand, have been sounding the alarm for over 40 years. In more than 20 studies, academics and practicing physicians have found evidence that talcum-based powders, marketed almost exclusively as feminine hygiene products, can increase a woman’s risk of developing ovarian cancer by anywhere from 30% to 300%. None of that information, survivors and loved ones claim, was publicized by Johnson & Johnson.
Public health watchdogs have attempted to pressure the company into strengthening its warnings before, but to little avail. After one study, published in a 1999 edition of the International Journal for Cancer, found that routine talc use could increase the risk for ovarian cancer by up to 60%, the Cancer Prevention Coalition asked the US Food & Drug Administration (FDA) to take immediate action. Citing a “lack of evidence,” the FDA declined. When pressed directly, Johnson & Johnson flat-out refused, according to FairWarning.org‘s Myron Levin.
Legal experts say Johnson & Johnson may be looking at a very different picture today. The company behind the popular feminine hygiene product has already been dealt two major legal blows. In one lawsuit, filed by physician’s assistant Deane Berg in 2013, a Sioux Falls jury, found the “family of companies” liable for failing to warn patients about the link between baby powder and ovarian cancer. In a strange twist, partially explained by South Dakota’s highly-conservative demographics, Berg was not awarded any damages in her case. But her lawsuit, and the jury’s finding of negligence against Johnson & Johnson, paved the way for hundreds of other women.
More heartening was the verdict reached by a St. Louis jury on Monday, February 22, 2016 in a lawsuit filed on behalf of Jackie Fox, who died at 62 in the fall of 2015. Fox was diagnosed with ovarian cancer in 2012, and she eventually came to blame the devastating condition on the 35 years she had used Johnson & Johnson’s Baby Powder and Shower to Shower talcum powders. Fox filed suit, claiming the company had never warned consumers about the risk. After her death, her son Marvin Salter became plaintiff in the case.
Three weeks of trial came to a close on the 22nd, with the jury finding Johnson & Johnson liable, not only for failure to warn, but also actively conspiring to hide the truth about its products. Fox’s estate was awarded $10 million in compensatory damages, and another $62 million in punitive damages, half of which attorneys say will go to help the Missouri Crime Victims’ Compensation Fund. The jury did not, however, find the lawsuit’s second defendant, the world’s largest talc manufacturer, Imerys Talc America, liable for contributing to Fox’s death.
On Monday, May 3, 2016, a second Missouri jury came to similar conclusions, awarding Gloria Ristesund, a long-time talcum powder user, $55 million in damages. Ristesund claims she used Johnson & Johnson’s popular baby powders as a feminine hygiene product for years, before being diagnosed with ovarian cancer and undergoing a hysterectomy, among other surgeries. This second straight court loss has led many legal observers to suggest that Johnson & Johnson may soon be motivated to offer the more than 1,000 other plaintiffs in pending talcum powder lawsuits settlements.
In an interview with the St. Louis Post-Dispatch, Jerome Kendrick, a juror in the Fox case, said that internal memos sent by a Johnson & Johnson consultant, presented at trial, were enough to turn his mind in favor of holding the company liable. The memos “pretty much sealed my opinion,” he told reporters. “They tried to cover up and influence the boards that regulate cosmetics. They could have at least put a warning on the box but they didn’t. They did nothing.” Out of three men on the jury, Kendrick was the only one to vote along with nine female jurors in favor of Fox and her family.
The memos in question, sent in March and September 1997, were written by Dr. Alfred Wehner, a toxicologist who consulted Johnson & Johnson on consumer products. In 1992, the Cosmetic, Toiletry and Fragrance Association (CTFA) had established the Talc Interested Party Task Force, an industry group dedicated to combating studies that had identified a link between talcum powder and ovarian cancer. Johnson & Johnson was one its most prominent members, and along with other manufacturers, the Task Force began marshaling experts to rebut the existing medical research.
Dr. Wehner was one of those experts, but one who, apparently, would not toe the party line. In a cautionary letter sent to Dr. John Hopkins, then-Director of Johnson & Johnson’s infant care division, Wehner critiqued the CFTA’s official position, calling the group’s conclusion that “the scientific evidence did not demonstrate any real association between talc use in consumer products and ovarian tumors” “technically and factually incorrect.” Wehner continued, admitting that “there are at least 9 epidemiological studies published in the professional literature describing a statistically significant (albeit weak) association between hygienic talc use and ovarian cancer. Any statement denying such an association can therefore be easily demolished by the opposition with resultant damage to CTFA’s credibility.”
Later that year, Wehner sent another memo, this time to Michael Chudkowski, who managed Johnson & Johnson’s Preclinical Toxicology department. Again, Wehner took issue with several official positions taken by the CTFA, most notably the group’s dismissal of studies finding that industrial exposures to talc were harmful, a dismissal the researcher characterized as “outright false.”
To most of the jury members in Fox’s case, Johnson & Johnson appeared, not only to have disregarded medical evidence, but to have carefully crafted a public attack on that evidence. In the company’s own Internal documents, representatives even refer to a group of doctors, who plaintiffs claim were hand-picked by Johnson & Johnson to influence public opinion on talc’s link to ovarian cancer, as “the club.”
How other juries will view the evidence leveled in the talcum powder case is anyone’s guess. But speaking to the Associated Press two days after the jury’s verdict in Missouri, Stanford law professor Nora Freeman Engstrom said the decision “doesn’t bode well” for Johnson & Johnson.
While several class actions have also been filed, and you may see this fact reported elsewhere with little qualification, it’s crucial to note that these class actions only seek to be reimbursed for the cost of Johnson & Johnson’s baby powder products.
The personal injury lawsuits, which are individual legal actions filed by current cancer patients, cancer survivors and on behalf of deceased loved ones demand far more than that, including compensation for past and future medical expenses, lost wages and pain and suffering.
While the lawsuits, most of which have been filed in state courts in Missouri and New Jersey, resemble each other closely, only around 100 have been consolidated. Some attorneys believe it’s only a matter of time before the other pending lawsuits are sent to a central court themselves.
When a large number of people file suit around the same issue, making similar allegations against one defendant, their lawsuits can be brought together in a single court. The claims will stay there, working through pre-trial proceedings like discovery, in which evidence is gathered, alongside one another. This mechanism is called “Multi-District Litigation,” when the lawsuits have been filed in federal court, and “Multi-County Litigation” for state courts. Consolidation is meant to make the legal process as efficient as possible. But none of the plaintiffs lose any of their rights. Their lawsuits remain separate. No one loses control of their case, but everyone can benefit from sharing resources and saving time.
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