Fifth Talcum Powder Trial Ends In $110M Verdict
June 12, 2017 | Pharmaceutical Litigation
In four of the five trials held so far, juries have linked talcum powder to ovarian cancer. The latest verdict — $110 million from a Missouri jury — included a staggering $95 million in punitive damages.
Jurors determined that Johnson & Johnson was 99 percent responsible for 62-year-old Lois Slemp’s injuries and that supplier Imerys Talc was 1 percent responsible. In a videotaped deposition, the Virginia resident told jurors that she used J&J talcum powder daily for forty years. Because her ovarian cancer had metastasized to her liver, Ms. Slemp was too ill to attend the trial. For most of the company’s history, J&J has positioned itself as the company that families could trust, and since the rising tide of talcum powder lawsuits threatens to shatter this image, the company is fighting them very aggressively. So, Ms. Slemp unintentionally delivered one of the most powerful lines in the trial when she said “I trusted Johnson & Johnson. Big mistake.”
Johnson & Johnson, which faces about 2,400 talcum powder lawsuits nationwide, vowed it will “will continue to defend the safety of Johnson’s Baby Powder” and that it would appeal the verdict.
Talcum Powder and Cancer
This latest verdict is far larger than the previous three, which indicates that victim/plaintiffs have fine-tuned their approach in these cases and that J&J, despite its bellicose language, is clearly on the defensive. Marie Napoli, a New York attorney who was not involved in this case, said that talcum powder liability cases are so successful because there is a clear story for the jury to follow, a vast amount of reliable scientific evidence, and a company that clearly tried to bury the truth.
Natural talc is one of the softest minerals known to mankind. This property, along with its capacity to absorb moisture and an aggressive marketing campaign, convinced a generation of women to use “a sprinkle a day” that “keeps odor away.” But talc may contain asbestos, which is one of the most dangerous minerals known to mankind, and has been conclusively linked with several forms of cancer, including mesothelioma. As a result, Marie Napoli pointed out, the prestigious International Agency for Research on Cancer classifies asbestos-containing talcum powder as “carcinogenic to humans.”
If one dusting of talcum powder contained one asbestos fiber, and that fiber sank into the skin before migrating through the vagina to the fallopian tubes, that woman is highly at risk for ovarian cancer.
Reliable scientific evidence is the next element in successful mass tort actions. Such evidence is essential if talcum powder lawsuits are to survive pretrial motions, even in a jurisdiction like New York where the rules about expert witnesses are a bit more relaxed than they are in some other places. Once the case goes to trial, according to Marie Napoli, the purpose of this evidence is not to convince jurors that talcum powder causes cancer, but rather to give them a place to “hang their hats.”
Well over a dozen studies, dating back to 1967, have linked talcum powder and ovarian cancer.
That point leads to the third pillar of a winning mass tort case: a misbehaving company. Throughout the 1970s and 1980s, as evidence of talcum powder’s dangers mounted, J&J persisted with the “sprinkle a day” campaign in a blatant attempt to increase sales even if the product was unsafe. These facts set the stage for punitive damages, which the jury can award if it finds that the tortfeasor (negligent actor) was either malicious or extremely reckless.
Marie Napoli said punitive damage awards are so large in talcum powder lawsuits because J&J is such a huge company that only a large amount conveys the message that such behavior will not be tolerated.
As mentioned earlier, J&J is ready to go the distance to defend its branding as a trustworthy company. Some common defenses in talcum powder lawsuits include:
- Use: Many talcum powders contain cornstarch instead of talc, so if the jury believes that the victim might have bough a brad other than Shower to Shower, the plaintiff’s case may be compromised.
- Cause: The talc-cancer link has not been established beyond any doubt. So, if the victim had some other risk factors, such as obesity, use of fertility drugs, or family history, the defendant will challenge the link in the talcum powder lawsuit.
If there is evidence that the victim used non-J&J talcum powder, the company may also argue that it was not responsible for the cancer.
With J&J on the defensive, the time is now to file your talcum powder lawsuit. For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC. After-hours appointments are available.
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