Johnson & Johnson Talc Litigation History
F or thousands of Americans suffering from ovarian cancer and mesothelioma, their last thought for many years as to the cause of their respective diseases would be the use of baby powder products. That is until approximately three years ago, when it was discovered that one of America’s most trusted consumer care companies knew for decades that its talcum powder products, including Shower to Shower and Baby Powder, could cause both ovarian cancer and mesothelioma. Since 2016, over 14,000 claims have been brought against Johnson & Johnson involving its brand of talcum-based products by individuals suffering from ovarian cancer and mesothelioma, which is a fatal form of cancer caused by exposure to asbestos.
BY SHARON J. ZINNS & ASHTYNE TRAYLOR
Exposure to Johnson’s talc-based products can cause both ovarian cancer and mesothelioma, but concern two separate avenues and ways of exposure. As such, the two types of cases are handled quite differently, with each type of litigation proceeding in a different manner.
The first talc trial involving ovarian cancer and its link to Johnson & Johnson’s talcum-based products involved Deane Berg, who was diagnosed with ovarian cancer in 2006. Berg used Johnson & Johnson’s talc-based products for over 30 years prior to her diagnosis. Berg v. Johnson & Johnson et al., Case Number 4:09-cv-04179, U.S. District Court, District of South Dakota, Southern Division, (2009, Dec. 4). Upon examination of her cancerous tissue, her doctors found talc present. They determined that the talc was in fact from the baby powder Berg regularly used.
During the 2013 trial, Berg’s attorneys presented Dr. Daniel Cramer, one of the medical doctors who studied Berg’s cancerous tissues and had studied the link between talc and cancer for 30 years. Dr Cramer, head of the Obstetrics and Gynecology Epidemiology Center at Brigham and Women’s Hospital in Boston, warned of the link between talc and ovarian cancer for decades. He testified that at the time, talc was likely causing as many as 2,200 cases of ovarian cancer annually.
During the trial, evidence was introduced that medical reports showed an increase in women’s risk of developing ovarian cancer when regularly using talcum powder in the genital area, typically to absorb moisture. The application would cause talc particles, which are ground to a fine powder for use in the final product, to travel through the vagina, uterus to the fallopian tubes and the ovaries. The talc particles can then become embedded in the ovarian tissue and trigger abnormal cell growth which results in ovarian cancer. Internal Johnson & Johnson company documents additionally showed that the company knew of the risk for decades yet failed to warn women using the products. The jury believed this evidence to be persuasive and found a link between Johnson’s talcum powder and ovarian cancer. However, Berg was not awarded damages.
Since Deane Berg’s trial and in response to the vast number of pending cases, a Multi-District Litigation has been set up to consolidate all ovarian cancer talc cases filed in Federal Court. At the time, over 11,000 cases have been consolidated into the multidistrict litigation.
The following year, a Los Angeles County Superior Court awarded a $417 million verdict to Eva Echeverria for her ovarian cancer talc case against the health care giant. The jury awarded $347 million of the total amount in punitive damages. Echeverria v. Johnson & Johnson, JCCP No. 4872, California Court of Appeal, Second Appellate District, Third Division (Los Angeles)
In 2018, a St. Louis jury awarded nearly $4.7 billion in total damages to 22 plaintiffs and their families based on their ovarian cancer. This was the first case in which plaintiffs claimed Johnson’s talcum powder contained asbestos and contributed to their ovarian cancer. Six of the named plaintiffs died from their ovarian cancer prior to the trial. Gail Ingham, et al. v. Johnson & Johnson, et al., Case Number 1522-CC10417, 22nd Judicial Circuit of Missouri (July 12, 2018).
Johnson & Johnson continues to appeal the verdicts and denies the connection between their products and ovarian cancer. “Ovarian cancer is a devastating diagnosis and we deeply sympathize with the women and families impacted by this disease,” Carol Goodrich, a spokeswoman for the company, stated. “We are preparing for additional trials in the U.S. and will continue to defend the safety of Johnson’s Baby Powder.” The company also refuses to place a warning label of any kind on its talcum-based products, citing the safety of its product.
In addition to ovarian cancer, Johnson’s talc-based products also cause mesothelioma, a deadly form of cancer which is exclusively caused by exposure to asbestos. Asbestos is a fibrous mineral that can naturally form inside talc. The talc used in Johnson’s baby powder products contained asbestos, which can be inhaled upon application. The asbestos can then travel to the lungs, lining of the abdomen and lining of the heart where it may attach itself and latch to the lining, embedding itself. Mesothelioma has a long latency, onset taking anywhere from 15 to 50 years after exposure to asbestos. Approximately 2,5000 people are diagnosed with the disease each year.
In 1999, Darlene Coker and her attorney, Herschel Hobson, first questioned whether her mesothelioma derived from her Johnson’s baby powder personal use and use on her infant children because of its ability to contaminate mined talc. Coker sued Johnson & Johnson, but unfortunately was forced to drop the suit due to her inability to secure adequate discovery to prove the connection. Plaintiffs now know this was part of an effort by Johnson & Johnson to cover up the asbestos in its products. See Darlene Coker, et al v. Bill Thames Pharmacy, Inc. et al., Case Number: D-157,746, District Court of Jefferson County, Texas 136th Judicial Circuit.
In December 2018, Reuters was able to secure such documents through current cancer cases against the company. Reuters examined countless internal Johnson & Johnson company records, memos and testing results from 1971 through the early 2000s, finding that the company’s talc and powders occasionally tested positive for small amounts of asbestos. The documents also reveal just how deep the company cover-up pervades, with company executives, talc providers, scientists, doctors and attorneys discussing the potential issue and how to prevent it from ever reaching the public. Reuters also reported the company’s success in influencing asbestos regulations and scientific research of talc safety.
Johnson & Johnson purchased talc from an Italian supplier from 1957 to 1958 which when tested, contained the fibrous tremolite, which is a naturally occurring form of asbestos. However, these results were not disclosed to the public.
In 1976, Johnson & Johnson told the U.S. Food and Drug Administration (FDA) that no asbestos was “detected in any sample of talc” produced between December 1972 and October 1973. However, it did not inform the agency that from 1972-1975, three different labs found asbestos in its talc. During this time, the FDA was considering the limits of asbestos in cosmetic talc products. Throughout the years, Johnson & Johnson has tested a small portion of its talc and provide limitations which allow trace contaminants to pass through undetected. At this time, the World Health Organization, among others, do not recognize any safe level of exposure to asbestos.
In response to the growing number of mesothelioma cases brought against the company and the investigation by Reuters, the United States Justice Department launched a criminal investigation in July 2019 to determine if Johnson & Johnson intentionally concealed the knowledge of asbestos fibers in its talcum-based products. This concealment involves the manipulation of Johnson & Johnson and their talc provider’s product research well into the 1970s.
For the last several decades, mesothelioma cases generally involved exposure of asbestos in workplaces such as mines, factories, insulation work, railroads, construction, shipyards, plumbing and automobile shops. However, a growing number of mesothelioma cases are stemming from exposure to asbestos-contaminated talc in Johnson Baby Powder and Shower to Shower products, as well as other cosmetic talc products from companies live Avon, Colgate, and Elizabeth Arden.
A landmark verdict came in April 2018, when Johnson & Johnson and its talc supplier, Imerys America, Inc., were ordered to pay $117 million to the family of Stephen Lanzo. The New Jersey state jury found that the company was reckless in selling its talcum powder products and knew it was contaminated with asbestos which led to Mr. Lanzo’s mesothelioma. This was the second mesothelioma case which went to trial against Johnson & Johnson and Imerys and the first to end in a plaintiff’s verdict. Lanzo et al. v. Cyprus Amax Minerals Co. et al., Case Number L-7385-16, in the Superior Court of the State of New Jersey, County of Middlesex (2018, April 11).
Mesothelioma cases against the two companies began to crop up at an increasing speed and, almost a year later, Johnson’s talc supplier, Imerys, filed for Chapter 11 bankruptcy. This led to Johnson & Johnson attempting to remove more than 2,4000 talc lawsuits from state court to a federal bankruptcy court in order to invoke any legal protection possible, short of filing for bankruptcy. Johnson & Johnson attempted to request the venue transfer citing a close financial relationship with debtor, Imerys. The request mirrored that of the MDL set up in New Jersey for ovarian cancer talc cases. Johnson aimed to set up a similar, but smaller concentration of state court cases in Delaware federal court. However, the company lost its motion to provisionally transfer all 2,400 cases in June, with the majority of state court cases having been remanded back to their respective courts.
Mesothelioma cases against Johnson & Johnson have continued to proceed to trial in spite of the company’s attempt to halt litigation. As recently as September 11, 2019, a New Jersey Superior Court jury awarded four sets of plaintiffs a total of $37.3 million based on Johnson’s baby powder containing asbestos and causing their mesothelioma. The jury unanimously found that the company exposed the plaintiffs to asbestos, knew about the dangers their products contained and failed to warn them.
Johnson & Johnson responded with its decision to seek an appeal. Barden, et al. v. Johnson & Johnson, Case Number: MID-L-1809-17, New Jersey Superior Court of Middlesex County (2019, September 11).
Johnson & Johnson continues to deny the presence of any contaminants in their talc. “We unequivocally believe that our talc, our baby powder, does not contain asbestos,” Gorsky told CNBC in an interview with Jim Cramer. “We always have empathy and sympathy for patients that have been diagnosed with cancer. Look, we’re in the business of trying to cure cancer,” he added. Plaintiffs in at least one mesothelioma case have won a motion to compel the deposition of Gorsky because of his statements that talc is safe. ●
ABOUT THE AUTHORS
Sharon Zinns is a Principal with Beasley Allen working out of the firm’s Atlanta office. She has dedicated her practice to helping clients affected by asbestos-related illnesses including mesothelioma, lung cancer, and asbestosis. Sharon is a graduate of the GTLA LEAD Program and currently serves as Chair of the Verdict Editorial Board and a member of the Executive Committee. She can be reached at email@example.com.
Ashtyne Traylor is a Staff Attorney with Beasley Allen’s Toxic Torts Section working from the firm’s Atlanta office. She is currently handling cases involving asbestos-related illnesses such as mesothelioma, lung cancer and asbestosis.