Johnson & Johnson has been clobbered with numerous lawsuits alleging the company’s products contain asbestos leading to cancer. Consumers claim they have developed devastating diseases such as mesothelioma from the use of Johnson & Johnson’s baby powder and other talc-based products. Mesothelioma rare and terminal. Mesothelioma is caused by the exposure to the known carcinogen asbestos. The naturally occurring mineral enters the body by inhalation or ingestion and can produce irreversible consequences.
Johnson & Johnson is one of the most renowned and admired brands in the United States. However, Johnson & Johnson has remained in the center of controversy over the past several years, putting their reputation at risk for their asbestos-containing talcum powder. The company is no stranger to litigation. The company has been bombarded with high payouts involving a chaotic array of products, from talcum powder to an anti-psychotic drug, Tylenol tampering, and a patented opium poppy.
Johnson & Johnson has been accused of suppressing information for decades. They have been hammered with lawsuits, explicitly claiming that Johnson & Johnson had knowledge of their talcum powder containing asbestos yet failed to warn consumers of the potential risk. Despite the numerous lawsuits and settlements, Johnson & Johnson maintains their overall position that their talc is safe and free of asbestos.
This decade long issue has led to thousands of lawsuits across the country. According to a source, “[a]bout 16,800 plaintiffs have filed lawsuits against J&J in U.S. state and federal courts alleging the company’s talcum powders caused ovarian cancer or mesothelioma, and J&J failed to warn consumers of this risk properly.” Most of the lawsuits involve women claiming the talc-based products gave them ovarian cancer, but a number of claims also blame Johnson & Johnson for their development of mesothelioma.
According to Bloomberg Intelligence, “[t]he talc litigation may eventually cost the company as much as $10 billion. Though baby powder accounts for only a small fraction of J&J’s annual revenue, it’s been a core brand for the company for more than a century.”
Johnson & Johnson’s Company History
Johnson & Johnson is one of the largest pharmaceutical firms on the planet. The company is engaged in more than just baby powder and baby oil. They produce a wide range of healthcare products from their infamous “no more tears” baby shampoo, band-aids, surgical suits, anti-tumor, and autoimmune disease drugs.
It was founded over 135 years ago in 1886. Three brothers, Edward Mead Johnson, James Wood Johnson, and Robert Wood Johnson formed the company in New Brunswick, New Jersey. The brothers initially created the business to develop ready-to-use surgical dressings. It was inspired after hearing a speech delivered by Joseph Lister in 1885. Lister was a well-known antiseptic advocate. The brothers worked to improve overall sanitation practices.
In 1888, Johnson & Johnson pioneered the very first commercial first aid kits designed for railroad laborers. It later became the standard practice for treating injuries. It was not until 1894, when the company’s “heritage baby” business originated. They first launched a maternity kit. The idea behind the maternity kit was to increase the safety during childbirth for both the mother and baby. The company also released its baby powder still in distribution today. Johnson & Johnson’s first president, Robert Wood Johnson, featured his granddaughter Mary Lea, as the first baby to be placed on the company’s baby powder label.
Johnson & Johnson made their first leap in women’s health when it manufactured and distributed sanitary protection products in 1896. According to a source, Johnson & Johnson is also credited for, “… the first mass-produced dental floss, and some of the first oil, powder and shampoo for babies and infants. It created antiseptic, inexpensive surgical sutures and sterilized plaster for closing post-treatment wounds. In 1931, Johnson & Johnson began to market Ortho-Gynol, America’s first prescription contraceptive.”
The Johnson & Johnson, as it is known today, arguably started in 1959 when the company purchased two large pharmaceutical research companies: Cilag Chemie AG and McNeil Laboratories. The company later bought Belgium’s Janssen Pharmaceutica N.V. creating the company’s research division, which is a vital part of Johnson & Johnson’s core structure to date. Dr. Paul Janssen, the company’s founder, was known as one of the most groundbreaking and “prolific pharmaceutical researchers of the 20th century.” Janssen remains one of the world’s leading research-based pharma companies. It markets a wide variety of prescription medicines ranging in areas from mental health, neurology, gastroenterology, and HIV/AIDS.
Johnson & Johnson acquired Pfizer in 2005 for $16.6 billion in cash. In 2012, Alex Gorsky was named the Chief Executive Officer (CEO) of Johnson & Johnson. To date, Johnson & Johnson is composed of 250 subsidiary companies and operates in over 57 countries. Johnson & Johnson’s products are distributed and sold in more than 175 countries around the world.
Johnson & Johnson is No Stranger to Litigation
Aside from the overwhelming amount of talcum powder litigation, Johnson & Johnson has been hit with serious lawsuits in relation to its other products.
One of its most significant lawsuits involved Tylenol in 1982, after seven people died of cyanide poisoning. According to a source, “[t]he handling of Tylenol crisis in 1982 where seven people died in the Chicago area after taking cyanide-laced capsules of Extra-Strength Tylenol, is considered one of the best crisis management case studies. What set apart J&J’s handling of the crisis was that it placed consumers first by recalling 31 million bottles of Tylenol capsules from store shelves and offering replacement product in the safer tablet form free of charge.”
In 2003, Johnson & Johnson was in the middle of a series of litigations involving patents related to medical devices and heart stents. Each party accused one another of infringement upon their patents. The ordeal was eventually settled in 2009 after Boston Scientific decided to pay $716 million and an additional $1.73 billion to Johnson & Johnson.
In 2008, more issues were reported. Consumers raised complaints that some of Johnson & Johnson’s products were not safe because they contained either bacteria or metal pieces in them. A couple of years later, the Food and Drug Administration initiated an investigation leading to a recall of roughly 300 million products related to quality control issues. The Food and Drug Administration concluded that Johnson & Johnson had severely violated manufacturing protocols, which resulted in the products becoming contaminated.
Mental health drug, Risperdal, was another well-known controversy in the United States after its introduction to the market in 1994. Juries across the nation found Johnson & Johnson liable for suppressing pertinent information about the serious and adverse effects of the antipsychotic drug. In 2012, Johnson & Johnson paid $181 million to 26 U.S. states to settle such claims. In 2019, a Philadelphia jury awarded $8 billion in punitive damages, where the complainant alleged that Johnson & Johnson failed to warn that the drug could cause him to grow breast.
Johnson & Johnson is still facing over 14,000 lawsuits relating to hip replacements. The lawsuits claim a flawed design caused its metal components to rub against each other and disintegrate metallic components into the patient’s body. Additionally, Johnson & Johnson’s blood-thinning medication, Pradaxa, has purportedly led to the death of over 500 patients, and over 3,781 serious injuries have been reported from the use of Pradaxa.
Johnson & Johnson’s most heated legal battles deal with its role in the United States opioids crisis, which has claimed over 400,000 American lives. According to a source, “Johnson & Johnson agreed to pay two Ohio counties a total of $20m to avoid the first in a series of federal trials testing whether opioid painkiller manufacturers, distributors and pharmacy chains are culpable for the worst drug crisis in US history.”
Bill Moran, a crisis management expert, told the Guardian in an October 2019 article that,
“Looking back to the 1980s, & Johnson set the standards for corporate responsibility with its swift handling of the crisis when cyanide-laced Tylenol (the company’s branded paracetamol) killed seven in a bottle-tampering spree, quickly withdrawing the product and redesigning the bottle amid a public awareness campaign …But now with so many legal judgments against them they’re facing an existential crisis.”
Talcum Powder – What Exactly is Talc?
Cosmetic talc is used in hundreds of beauty products. It has been an essential element of adult skincare rituals, baby care, and makeup routines across the globe. According to Johnson & Johnson, “[t]he most common cosmetic applications for talc are face, body and baby powders, but it’s also used as an ingredient in color cosmetics, soap, toothpaste, antiperspirant, chewing gum and drug tablets.”
Researchers and medical experts have spent decades studying cosmetic talc. Johnson & Johnson expresses that science has produced clinical research that not many other ingredients create the same safety profile as cosmetic talc, including its performance.
Talc is known as a “wonder mineral.” It is odorless, chemically inert, and exceedingly stable. Talc that is used in cosmetics is of high purity. Johnson and Johnson expressed on their website that it is, “… only mined from select deposits in certified locations before being milled into relatively large, non-respirable-sized particles.”
According to a source, talc is a vital ingredient in cosmetics, “…as it is soft to the touch and inert, talc has been valued for centuries as a body powder. Today it also plays an important role in many cosmetic products, providing the silkiness in blushes, powder compacts and eye shadows, the transparency of foundations and the sheen of beauty creams. In pharmaceuticals, talc is an ideal excipient, used as a glidant, lubricant and diluent. Soap manufacturers also use talc to enhance skin care performance.”
The United States produces a substantial amount of talc. In 2012 the United States produced half a million tons of the mineral valued at around $17 million. The United States markets for talc include:
- Ceramics (25 percent)
- Cosmetics (3 percent)
- Paper (22 percent)
- Paint (19 percent)
- Roofing (9 percent)
- Plastics (8 percent)
- Rubber (3 percent) and
- Other (11 percent)
Talc can be crushed into a white powder, hence talcum powder. Talcum powder can absorb oils, moisture, and odors. Ground talc is used as the powdery base in many beauty products. Talc is smooth and soft, so it can be applied to the skin without causing harsh skin abrasion.
Talc and asbestos are usually mined together because they are generally close together in metamorphic rocks. Studies began to surface in the 1960s and 1970s, raising health concerns about the use of cosmetics that could potentially contain asbestos. According to the Food and Drug Administration, “[t]here is the potential for contamination of talc with asbestos and therefore, it is important to select talc mining sites carefully and take steps to test the ore sufficiently.”
Asbestos Corporate Cover-ups
Asbestos is resourceful and heat resistant. Asbestos was heavily used across the country across several different industries. For a while, companies held that asbestos was harmless and referred to it and talc as “wonder minerals.” Corporate cover-ups of the dangers of asbestos and its propensity to causing cancer lasted throughout the 1970s. The asbestos industries not only suppressed research finding that asbestos caused serious health risks but also manipulated medical research covered the adverse findings.
Medical research on the potential effects of exposure to asbestos began in 1924. Scientists first connected asbestos to lung cancer in the 1930s. Corporations tended to favor their profits over the health and safety of their workers. According to a source, “[n]ineteenth century doctors did not recognize a connection between asbestos and lung disease, although circumstantial evidence had offered itself 2,000 years ago.”
Over the years, the court evidence has exposed several companies that aided to the corporate asbestos cover-up. Some corporations concealed or modified medical research that would have prompted stricter regulations on asbestos and promote safer work practices.
Asbestos litigation in the United States started in the late 1920s. In 1929, Johns Manville Corporation was sued by 11 employees for exposure to asbestos. The case was settled a few years later for $30,000.
The South Carolina Judge James Price wrote in his opinion of the case,
“The correspondence very arguably shows a pattern of denial and disease and attempts at suppression of information which is highly probative. [T]he correspondence reveals written evidence that Raybestos-Manhattan and Johns-Manville exercised an editorial prerogative over the publication of the first study of the asbestos industry which they sponsored in 1935. . . . [It] further reflects a conscious effort by the industry in the 1930s to downplay, or arguably suppress, the dissemination of information to employees and the public for the fear of promotion of lawsuits.”
Castleman, supra, at 465 (quoting Amended Order, Barnett v. Owens-Corning Fiberglas Corp, et. al, (Ct. Common Pleas Aug. 23, 1978)).
Madison – St. Clair Record reported that “[i]n 1964, doctors at Mt. Sinai School of Medicine in New York City published a study estimating that 21 million Americans had been exposed to asbestos at work from 1940 to 1980. The study predicted 8,000 to 10,000 deaths a year for the next 20 years.”
More lawsuits poured in against Johns Manville Corporation. For example, in 1982, five juries awarded over $3 million to the complainants. Overall, the company was hit with roughly 16,500 asbestos-related lawsuits. Shortly thereafter, the company filed for bankruptcy. Over the next two decades, 77 more corporations declared bankruptcy, which was attributed to asbestos litigation. According to a source, “…the number of defendants per case grew from 20 in the 1980s to 60 or 70 in the 1990s.”
Another experienced Judge, Robert Parker, who had an impressive amount of experience trying asbestos cases, provided a summary as to the knowledge widely accepted in the medical and scientific community. He stated:
1. There is no safe level of exposure.
2. There is a dose/response relationship that manifests itself in either the type disease that one may contract or the length of latency period between exposure and disease manifestation.
3. Asbestos is a competent producing cause of the diseases of mesothelioma, asbestosis, lung cancer, and pleural disease. Unanimity of opinion is not yet achieved regarding gastrointestinal tract cancers although the evidence has satisfied the Surgeon General.
4. Mesothelioma is an untreatable terminal cancer.
5. Asbestosis is a progressive untreatable disease of the lung.
Cimino v. Raymark Indus., 751 F.Supp. 649, 652 (E.D.Tex.1990).
The cover-ups continued to unravel as the number of litigants rose, forcing companies to produce documentation proving their knowledge of the issue. A report published by the Federal Judicial Conference Ad Hoc Committee on Asbestos Litigation summarized its history as:
“It is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected.”
Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation 2 (Federal Judicial Center 1991).
In 1966, a Bendix Corporation executive wrote in a confidential memorandum, “If you have enjoyed a good life while working with asbestos products, why not die from it.”
Metropolitan Life Insurance Company was also part of the asbestos cover-up. The company was not in the asbestos business, but evidence has shown they worked intently with companies to hide the adverse health effects of the carcinogen.
Investigation Reveals Johnson & Johnson Knew Its Baby Powder was Laced with Asbestos
Reuters News Service conducted an investigation of Johnson & Johnson, which exposed shocking evidence that Johnson & Johnson had decades of knowledge of its products containing asbestos. One of the earliest known mentions of contaminated Johnson & Johnson talc was in the late 1950s. A consulting lab issued a report which Reuters states, “[t]hey describe contaminants in talc from J&J’s Italian supplier as fibrous and ‘acicular,’ or needle-like, tremolite. That’s one of the six minerals that in their naturally occurring fibrous form are classified as asbestos.” The report found that less than one percent to roughly three percent of the Italian talc was contaminated.
Fast forward to the early 2000s, scientists at Johnson & Johnson produced reports that provided similar findings. According to the Reuters investigation, “[t]he reports identify contaminants in talc and finished powder products as asbestos or describe them in terms typically applied to asbestos, such as ‘fiberform’ and ‘rods.’”
More evidence of Johnson & Johnson’s previous knowledge of their asbestos tainted products dates back to 1976 when the Food and Drug Administration was evaluating limits on asbestos in cosmetics containing talc. Johnson & Johnson sent a letter to the Food and Drug Administration reassuring the agency’s regulator that asbestos was not “detected in any sample” of Johnson & Johnson’s talc manufactured and distributed between December 1972 and October 1973.
Moreover, Johnson & Johnson failed to mention that in at least three of the tests conducted by at least three different labs from 1972 to 1975, affirmatively found asbestos in its talc. One reported levels as “rather high.”
Johnson & Johnson has stated they have multiple labs perform routine testing. According to Reuter’s investigation, “…Another lab found asbestos in more than half of multiple samples of Baby Powder from past decades – in bottles from plaintiffs’ cupboards and acquired from eBay, and even a 1978 bottle held in J&J’s corporate museum. The concentrations were great enough that users ‘would have, more likely than not, been exposed,’ the plaintiffs’ lab report presented in several cases this year concluded.”
There are more discrepancies in Johnson & Johnson’s testing. The Environmental Protection Agency (EPA) does not distinguish between fibers and its comparable “cleavage fragments.” According to a source, the Occupational Safety and Health Administration (OSHA), “…dropped the non-fibrous forms of the minerals from its definition of asbestos in 1992, nonetheless recommends that fiber-shaped fragments indistinguishable from asbestos be counted in its exposure tests.”
In October of 2019, the Food and Drug Administration (FDA) issued a press release announcing the presence of asbestos in a bottle of Johnson & Johnson’s baby powder product. The press release warning consumers stated, “[a] sample from this lot was found to contain chrysotile fibers, a type of asbestos. On October 18, 2019, Johnson & Johnson voluntarily recalled this product, and consumers who have this lot of baby powder should stop using it.”
Johnson & Johnson also provides an explanation of the investigative reports conducted by various agencies. Johnson & Johnson stated, “[i]n the 1970s and 1980s, we gathered samples every hour from our talc processing facilities so that we could test it for asbestos. Samples of ground talc ore were combined and tested at least every month. Samples of this talc that was ready to be packaged were combined and tested at least every other week. And as an additional audit, every quarter, those samples were also tested again.”
Asbestos and Baby Powder Controversy
There are mixed reviews on whether the usage of talc-based products can lead to cancer. Some epidemiological studies that depend on women’s memories to recollect their use of talc-based products have shown an uptick in the risk of developing cancer.
According to a source, “[t]he World Health Organization and other authorities recognize no safe level of exposure to asbestos. While most people exposed never develop cancer, for some, even small amounts of asbestos are enough to trigger the disease years later. Just how small hasn’t been established. Many plaintiffs allege that the amounts they inhaled when they dusted themselves with tainted talcum powder were enough.”
One study researched genital powder use and the potential risk of developing ovarian cancer. It pooled an analysis of 8,525 cases and was complete with 9,859 controls. The study expressed, “…whether risk increases with number of genital-powder applications and for all histologic types of ovarian cancer also remains uncertain. Therefore, we estimated the association between self-reported genital powder use and epithelial ovarian cancer risk in eight population-based case-control studies.” Overall, the study found that genital use of the powder is a “modifiable exposure” associated with only a small-to-moderate increased risk of ovarian cancer.
Conversely, other studies that track women’s health habits over time have not shown a causal connection.
The Sister Study, a six-year study performed from 2003 through 2009, enrolled 41,654 women in both the United States and Puerto Rico spanning in age from 35 to 74 years. All study participants had a full or half sisters who had been diagnosed with breast cancer. Additionally, the subjects were asked about their talc use over the past 12 months. Five thousand seven hundred and thirty-five women in the study used talc. The study showed no increase in the risk of ovarian cancer.
A 2014 paper published in the Journal of the National Cancer Institute (JNCI) supports Johnson & Johnson’s position that talc is safe. The study projected that there will be roughly 22,240 new cases of ovarian cancer in 2013 and that there will be an estimated 14,030 ovarian cancer deaths in the United States in 2013. According to a source, “[t]he proportion of U.S. women ever using talc powder on the perineum was estimated in 2001 to be approximately 40% ( 4 ), whereas 52% reported ever use of perineal powder in 1993–1998 within the Women’s Health Initiative (WHI).”
Another study spanned over 24 years and involved 78,630 participants and 31, 789 of the subjects used talc. The study analyzed several thousand powder users and also examined what the study referred to as “never users.” The researchers in this study claimed, “… never perineal powder use was not associated with ovarian cancer risk, nor was it associated with ovarian cancer when assessed by area of application, duration of use, or ovarian cancer subtype. While many case-control studies have shown an approximately 24–40% increase in risk of ovarian cancer, for powder users, we did not find evidence of this association in our large, prospective analysis.”
The paper conclusively found that the powder use did not appear to be associated with a risk of ovarian cancer, even for the powder users with long term perineal use.
Pediatricians have advised for decades against using baby powder to treat diaper rash. This advisement comes mostly because some medical professionals believe it increases the risk of inhalation leading to lung irritation.
However, the application of baby powder to sanitary napkins, underwear, or the genital areas of women has been a routine hygiene habit. According to a source, “A federal health survey found that more than half of American women have used baby powder in their genital area at one time.” The American Cancer Society has advised since the research is ongoing, individuals concerned about the use of talcum powder may consider limiting their use that may contain it. Another source states that “[t]he International Agency for Research on Cancer classifies the use of baby powder with talc on or near the genitals as ‘possibly carcinogenic to humans.’”
Another study was conducted on miners and millers that were exposed to talc on a daily basis. The study spanned over 40 years examined 2,149 participants. The study concluded that based upon their findings, there was no increased risk of developing mesothelioma.
Johnson & Johnson has stated that talc is actually used to reduce any accumulation of fluid in the lungs. The company refers to pleurodesis, a medical procedure that assists the lungs from sticking to the wall of the chest to keep lungs that are collapsed inflated. It is sometimes used to prevent any fluid acumination in the lungs. According to a source, “[i]n some cases, talc is injected directly into the lining of the lungs to prevent fluid accumulation. Large-scale reports of patients show that out of hundreds of patients who had this procedure done over dozens of years, there have been no cases of mesothelioma.”
There are also some influential studies suggesting the opposite, hence the weight of the controversy. A legendary study composed of 370 insulation workers who were union members in 1942 exemplifies the dismal effects of asbestos. According to a source, “…between 1963 and 1968, 113 of the workers died when 60 deaths would normally be expected. The deaths included 28 from lung cancer (2.5 would be normal) and 8 from gastrointestinal cancer (2 would be normal), plus 15 from asbestosis and 13 from mesothelioma (0 would be normal).”
A 1976 case study tested 20 commercial consumer products body powders, baby powders, facial talcum products, and one pharmaceutical talc. Ten out of the 20 products tested detected measurable amounts of tremolite and anthophyllite asbestos fibers. The analyses demonstrated that the manufactured goods tested were hardly the pure mineral talc, but instead were composed of a variety of various minerals.
The study in 1976 concluded that “[p]ossible adverse health effects from intermittent use of these products, especially those that contain asbestiform and fragmented anthophyllite and tremolite, chrysotile, quartz, and trace metals, are presently unknown and warrant evaluation.”
A recent study seems to provide some of the most substantial proof that asbestos laced talcum powder may cause malignant mesothelioma. The case study was published in January of 2020 in the Journal of Occupational and Environmental Medicine.
The study evaluated 33 cases of malignant mesothelioma. All case subjects had no other known exposure to asbestos other than to talc-based cosmetic products. The type of asbestos found in the talcum powder was also found in all six cases studied. The researchers concluded, “[e]xposure to asbestos-contaminated talcum powders can cause mesothelioma. Clinicians should elicit a history of talcum powder usage in all patients presenting with mesothelioma.”
Johnson & Johnson Firmly Denies the Link Between Talcum Powder and Cancer
Johnson & Johnson has consistently held that its talc-based products cause cancer. However, documents released in 2017 unveiled that Johnson & Johnson’s executives were aware of the asbestos contamination and liabilities. The documents indicate the company had knowledge of the asbestos liabilities as early as the 1970s. Johnson & Johnson has represented that only 5% of talc is used for cosmetic purposes. The rest of the company states is used in industrial materials.
Johnson & Johnson always defend their commitment to safety by stating, “Governmental and academic reports on the mines where we have sourced our talc for Johnson’s Baby Powder in the United States and Canada confirm that these talc ores used in our product did not contain asbestos.”
Johnson & Johnson defended their need to stifle certain concerns over asbestos contamination at Talc mines in Italy and Vermont. The company considered corn starch as an alternative ingredient instead of talc to avoid liability. However, despite apparent knowledge, the company never made the switch, nor did they stop manufacturing and selling the baby powder.
According to Johnson & Johnson, “[p]laintiff trial lawyers claim that there was a conspiracy inside Johnson & Johnson to intentionally sell products that we knew contained asbestos. This claim is false. In fact, in order for this accusation to be true, dozens of federal and state government agencies, independent laboratories, scientists, and major universities that tested our products would have also had to have conspired together over the course of 50 years to withhold this information.”
The issue surrounding the litigation is determining if Johnson & Johnson had actual, reasonable knowledge. They maintain its products are safe. However, plaintiffs’ attorneys across the nation have refined their arguments responding in a more favorable light, which has convinced many juries. According to a source, the plaintiffs’ attorneys now spun their argument as, “…the culprit wasn’t necessarily talc itself, but also asbestos in the talc. That assertion, backed by decades of solid science showing that asbestos causes mesothelioma and is associated with ovarian and other cancers, has had mixed success in court.”
After numerous lawsuits and claims of the company’s products being hazardous, Johnson & Johnson has not backed down or conceded to such notions. The company publicly defends itself by stating the tests performed over the years has proven its products are safe and that the testing is performed by leading independent labs across the country. Recent litigation has forced the company to provide legitimate documentation proving their talc and products are free of asbestos.
According to Reuters, Johnson & Johnson has “…blamed its losses on juror confusion, ‘junk’ science, unfair court rules and overzealous lawyers looking for a fresh pool of asbestos plaintiffs.” Johnson & Johnson’s vice president of global media relations, Ernie Knewitz, told Reuters,
“Plaintiffs’ attorneys out for personal financial gain are distorting historical documents and intentionally creating confusion in the courtroom and in the media.” He added, “…this is all a calculated attempt to distract from the fact that thousands of independent tests prove our talc does not contain asbestos or cause cancer. Any suggestion that Johnson & Johnson knew or hid information about the safety of talc is false.”
Several studies have been conducted that support Johnson & Johnson’s position that science fails to provide any evidence that the use of their talc-based products leads to cancer. Johnson & Johnson issued a statement on January 7, 2020, stating, “Another study has found there is no statistically significant association between use of talc for feminine hygiene and ovarian cancer. This study drew from data already gathered on tens of thousands of women followed over many years and reaches a conclusion that is consistent with the more than 40 years of independent research and clinical evidence that supports the safety of talc.”
Johnson & Johnson is referring to a study conducted by the Journal of the National Cancer Institute (JNCI). The study sought to analyze the relationship between the use of talcum powder as it correlated to ovarian cancer. The study concluded that the “… results provide little support for any substantial association between perineal talc use and ovarian cancer risk overall; however, perineal talc use may modestly increase the risk of invasive serous ovarian cancer.”
On December 2, 2019, Johnson & Johnson sent a letter to the Subcommittee on Economic and Consumer Policy of the Committee on Oversight and reform. The letter was in response to the Subcommittee’s invitation for Johnson & Johnson’s Chief Executive Officer (CEO), Alex Gorsky, to testify at a hearing of the Subcommittee on December 10, 2019. The hearing was to address the methods used to detect asbestos in talc. Johnson & Johnson contends they have rigorously maintained their testing practices to confirm the safety of its cosmetic talc.
Johnson & Johnson’s letter to the Subcommittee expressed,
“Several different analytical methods exist to identify and characterize minerals such as asbestos. In 1976, the cosmetics industry established a testing standard to ensure the safety of cosmetic talc, called the CTFA J4-1 specification. The J4-1 standard requires the use of x-ray diffraction (“XRD”), and, where necessary for additional screening, polarized light microscopy (“PLM”). Johnson & Johnson has required the use of XRD and PLM, where necessary, for decades, and indeed, currently uses both methods in accordance with the United States Pharmacopeia recommendations for ensuring that pharmaceutical-grade talc does not contain asbestos.”
Johnson & Johnson verifies that the cosmetic talc in its baby powder is tested multiple times. Additionally, the company states that testing is also performed where the talc is mined as soon as the ore is extracted and after it is milled. Johnson & Johnson argued that Johnson & Johnson’s CEO was not an appropriate witness for the upcoming hearing because he does not have the requisite background on the matter.
Despite Johnson & Johnson’s concerns expressed in the December 2, 2020 letter, the Subcommittee proceeded to summon three paid experts who have testified against the company throughout its ongoing litigation. Two of the three experts have received millions of dollars. In response to the Subcommittee’s decision, Johnson & Johnson stated, “…both Drs. Longo and Moline changed their opinions as it relates to talc after being paid to testify against Johnson & Johnson. When he was involved in prior litigation against other companies, Dr. Longo said cosmetic talc does not contain asbestos. Previously, Dr. Moline said that talc from the deposits used by Johnson & Johnson does not contain asbestos.”
As it relates to multi-district litigation (MDL), Johnson & Johnson has filed motions asking the judge in talcum powder cases to exclude a number of the plaintiff expert witnesses. Johnson & Johnson contends that the expert witnesses’ testimony on the issue of whether talc causes mesothelioma is unreliable.
The Daubert Standard and the Federal Rules of Evidence
The Daubert standard is intertwined with the Federal Rules of Evidence that allows a federal judge to evaluate the credibility of a party’s expert witness whose statements would be presented at a jury trial. The United States Supreme Court mandates the trial court to act as essential “gatekeepers” of science so that inaccurate and unreliable testimony is not presented to the jurors.
Expert witnesses are critical in mesothelioma litigation. They are usually required in every case. The plaintiff would need to provide an expert pointing to the use of Johnson & Johnson’s talcum powder and the development of mesothelioma. Conversely, the defendant would need to present expert testimony to rebut the contention that the consumer’s use of its products does not lead to a cancer diagnosis.
Under the Daubert standard, and expert must be qualified. The expert’s testimony needs to be both relevant and reliable. All experts are required to meet this standard to qualify. This extends to every expert, not just doctors or scientists.
Experts must be qualified to the extent that what they are testifying to is based on their education, experience, knowledge, training, and skill. The courts measure an expert’s reliability using five essential factors:
- Can the expert’s method or theory be tested, or has it been tested by other scientists?
- Has the expert’s method or theory been up for “peer review” by other experts in the relevant field of study?
- Is there a possibility that the method or theory could produce a high rate of error or false results?
- Are there principals to control how a method works to confirm consistency?
- Whether the method or theory has been generally accepted within the scientific community or is it what is known as a “fringe opinion.”
The expert testimony must be relevant to the arguments presented in the case. The point of an expert is to break down a difficult concept to help the jury form an understanding of the evidence. This helps the jury come to an ultimate, hopefully, informed decision.
Lastly, the courts take into account whether the expert’s method or theory entails speculation and the length of time the expert has held their opinion. Finally, the courts consider whether the expert considered any other alternative explanation before coming to their conclusion, thus forming their expert opinion.
Professor at Rutgers Law School, Steve Gold, specializes in toxic and hazardous substances. Mr. Gold told TIME that “[i]t’s very, very hard, in general, to prove exactly what caused your specific case of disease …If a credible physician and researcher is willing to testify and has published that these individual cancers appear to be caused by asbestos exposure from talcum powder, that’s evidence that is usually not available to plaintiffs. That’s very powerful.”
The U.S. Justice Department’s Criminal Investigation of Johnson & Johnson
The U.S. Justice Department initiated a criminal investigation in July of 2019 to determine whether Johnson & Johnson intentionally misled the public about the presence of asbestos fibers in the company’s talcum powder.
The Justice Department’s criminal probe coincides with the governing investigation and the thousands of civil claims filed by cancer patients across the nation, blaming Johnson & Johnson for their illness. A grand jury in Washington has been charged with reviewing documents related to what Johnson & Johnson executives knew about the presence of any asbestos in their products.
Johnson & Johnson responded to the existing Department of Justice inquiry by stating, “Johnson’s Baby Powder does not contain asbestos or cause cancer, as supported by decades of independent clinical evidence. The implication that there has been a new development in this matter is flatly wrong.”
Henry Klingeman, a former federal prosecutor in New Jersey, stated, “[s]ince J&J is a public company, they are probably looking at whether their statements amounted to fraudulent statements to consumers and regulators. I’d also think they’d be looking at whether they violated securities-fraud laws.”
The Justice Department’s investigation could take years to resolve. This could lead to delays for consumer’s pending civil claims.Mr. Klingeman told Bloomberg, “[t]his will make it more difficult for Johnson & Johnson to settle the civil cases as long as there is a continuing criminal investigation, which may require employees to testify before a federal grand jury. Civil plaintiffs may not want to settle until they know better whether criminal charges will be filed, which they can use to aid their cases.”
Johnson & Johnson investors have also questioned the company of defrauding them and have claimed in lawsuits that Johnson & Johnson did not disclose the company’s talcum powder was contaminated with asbestos. Investors additionally accuse Johnson & Johnson of artificially inflating its shares.
Washington Senator Patty Murray was prompted to send a letter to Johnson & Johnson’s Chief Executive Officer (CEO), Alex Gorsky, requesting all documentation related past testing for asbestos in Johnson & Johnson’s talc-based products.
Johnson & Johnson’s Leading Talcum Supplier Files for Chapter 11 Bankruptcy
In February of 2019, Johnson & Johnson’s leading talc supplier, Imerys Talc America, filed Chapter 22 bankruptcy protection. The bankruptcy emerged as the multibillion-dollar talcum powder lawsuits began to surface, claiming talc caused cancers like mesothelioma and ovarian cancer.
In 2012, Johnson & Johnson sold its rights to its Shower-to-Shower talc powder product to Valeant Pharmaceuticals International Inc. The company changed its name to Bausch Health Cos last year, has an indemnity agreement with J&J covering asbestos suits tied to the powder.
St. Louis Jury Returns a $4.6 Billion Talc Cancer Verdict
Twenty-two plaintiffs made claims against Johnson & Johnson, alleging their use of the company’s products caused them to develop ovarian cancer. The verdict sent a strong message across the nation as talcum powder litigation continues to run full steam ahead. Here is a breakdown of the damages award:
- $550 million in actual damages – $25 million to each family who was part of the suit, including relatives who passed and other parties with a spouse who claimed adverse health effects).
- $4.14 billion in punitive damages – $3.15 billion in punitive damages against Johnson & Johnson and $990,000 against Johnson & Johnson Consumer Inc. (JJCI).
One juror revealed that they were trying to come to an award that Johnson & Johnson “would feel.” The juror explained that they did not randomly arrive at the $4.14 billion in punitive damages by chance, but they multiplied the $70 million that Johnson & Johnson had earned selling the baby powder in the previous year by the 43 years since Johnson & Johnson claimed its baby powder did not contain asbestos.
Cecilia Martinez, one of the plaintiffs from Dallas, expressed that she hopes Johnson & Johnson will operate with honesty and integrity when no one is watching. Other plaintiffs expressed that after the verdict, they felt that “justice has been served.”
The St. Louis Post-Dispatch reported that Mark Lanier, the lead plaintiffs’ counsel released a statement expressing that Johnson & Johnson “should pull talc from the market before causing further anguish, harm, and death from a terrible disease. J&J sells the same powders in a marvelously safe corn starch variety. If J&J insists on continuing to sell talc, they should mark it with a serious warning.” Patrick Bick, Johnson & Johnson’s lawyer, condemned the plaintiffs’ case and claimed they paid experts as “science for hire.” He further defended Johnson & Johnson by saying the company has exceeded industry standards for years in testing its talc-based products for asbestos.
Johnson & Johnson issued a strong press release on July 12, 2018, in response to the “disappointing verdict” and referred to it as “fundamentally unfair.” Johnson & Johnson’s first criticism was that the courts allowed plaintiffs to present 22 women, most of which did not appear to have any relationship to Missouri. Further, allowing claims all in a single case claiming they developed ovarian cancer.
Johnson & Johnson also disagreed with the award being the same amount to all plaintiffs. The company explained the award disregarded each plaintiff’s individual facts and any potential differences in applicable law. Johnson & Johnson further expressed that the evidence presented was full of prejudice for this type of matter. Johnson & Johnson again contends that it is confident that their products do not cause cancer, and its products do not contain asbestos. Johnson & Johnson in the press release that “[e]very verdict against Johnson & Johnson in this court that has gone through the appeals process has been reversed and the multiple errors present in this trial were worse than those in the prior trials which have been reversed.”
Missouri Court of Appeals Throws out $72 Million Talcum Powder Verdict
On February 22, 2016, a jury awarded an Alabama woman $72 million after finding that Johnson & Johnson failed to warn users about the link between talcum powder and cancer. In 2017, Missouri’s court of appeals threw out the verdict. The company valiantly appealed that cases involving nonresident plaintiffs were without jurisdiction and anticipated a reversal.
Jacqueline Fox, a resident of Birmingham, Alabama, passed away at the age of 62 in 2015, nearly four months before the trial in St. Louis Circuit Court. Ms. Fox stated in her complaint that she used Johnson & Johnson’s products for over 25 years.
Ms. Fox was among 65 plaintiffs, where only two of them were actually residents of Missouri. In February of 2016, a jury awarded Ms. Fox $10 million in actual damages. The jury also awarded $62 million in punitive damages.
The court of appeals ruled 3-0 that Alabama’s lawsuit lacked jurisdiction in Missouri, pointing to a U.S. Supreme Court decision that imposed limits on where personal injury lawsuits can be filed. According to a source, “[t]he Bristol-Myers Squibb case said non-California residents could not file claims there against the New York-based maker of the blood thinner Plavix, ruling that establishing a lawsuit’s jurisdiction requires a stronger connection between the forum state and a plaintiff’s claims.”
This verdict was the nation’s first where a jury awarded damages surrounding claims that talc led to the development of cancer.
California Jury Cleared Johnson & Johnson of Liability in Mesothelioma Case
Carla Allen claimed that her use of Johnson and Johnson’s products, including its baby powder, led to her development of mesothelioma. She claims she was exposed to asbestos fibers in the talcum powder. The jury trial lasted nearly seven weeks.
Johnson & Johnson issued a press release in response to the defense verdict stating, “We are pleased that the jury found that Ms. Allen’s mesothelioma was not caused by the use of Johnson’s Baby Powder. While we deeply sympathize with anyone suffering from any form of cancer, the science and facts show that her disease was not caused by her use of our talcum based products.”
California Jury Awards $40.3 Million in 2019 Talcum Powder Cancer Case
In 2019, a California jury found in favor of plaintiff Nancy Cabibi. Ms. Cabibi claimed that her use of Johnson & Johnson’s baby powder caused her to develop malignant mesothelioma. Ms. Cabibi’s body tissue detected the presence of anthophyllite asbestos and tremolite asbestos. She claimed she used Johnson & Johnson’s baby powder and shower-to-shower products.
CBS Los Angeles reported that “Johnson & Johnson attorneys argued that Cabibi had actually been exposed to asbestos because she lived in an industrial area of Los Angeles, but her attorneys countered that she never worked or even entered any facilities where she would have been exposed.”
The trial lasted almost a month. The jury returned a verdict after six days of a verdict totaling $40.3 million. No punitive damages were awarded in this case. However, the jury awarded compensatory damages in $1.2 million in economic damages, $6.5 million in past noneconomic damages, 12.6 million in future economic damages, and $20 million was awarded to Ms. Cabibi’s husband, Phil Cabibi.
In accordance with the interpretation of California law, the $40.3 million verdict was later reduced to $17.5 million.
Jury Awards $9 Million Talcum Powder Verdict to Mesothelioma Patient
In February of 2020, a Florida jury awarded 82-year-old Blanc Mure-Cabrera a $9 million verdict against Johnson & Johnson. Ms. Mure-Cabrera alleged her use of Johnson & Johnson’s baby powder caused her to develop mesothelioma.
Ms. Mure-Cabrera’s attorneys convinced the jurors that the baby powder used by Ms. Mure-Cabrera was laced with asbestos. Therefore, it was the direct result of her devastating mesothelioma diagnosis. According to a source, “Plaintiffs’ lawyers claim internal J&J documents show executives knew since the late 1960s that talc mined in places such as Vermont and Italy contained trace amounts of asbestos but failed to alert consumers or regulators. Asbestos is often found in mined talc, but the company says it is removed when processed. The listed ingredients in J&J’s baby powder are talc and fragrance.”
Johnson & Johnson issued a press release on February 27, 2020, in response to the jury’s verdict stating, “Today’s verdict is at odds with the decades of evidence showing the Company acted responsibly and was guided by sound science, and we will move ahead with an appeal. Consumers can be assured that more than 40 years of independent scientific evaluations confirm that Johnson’s Baby Powder is safe, does not contain asbestos and does not cause cancer.”
Johnson & Johnson’s Hometown Trial Loss in New Brunswick, New Jersey
Earlier this year, Johnson & Johnson was hit with another expensive jury verdict in their hometown of New Brunswick, New Jersey. Johnson & Johnson was the company was ordered to pay $750 million in punitive damages to four plaintiffs. The punitive damages were later reduced to $185.5 million.
Johnson & Johnson issued a press release on February 6, 2020, in response to the jury’s punitive decision stating “[t]oday’s verdict is at odds with the decades of evidence showing the Company acted responsibly, was guided by sound science and used the most sophisticated testing available for its talc.”
Johnson & Johnson also expressed that they plan to move quickly on an appeal towards both phases of the trial to point out a large number of substantial legal errors that presented the jury with unrelated information, which prevented them from hearing “meaningful evidence.”
Lastly, Johnson & Johnson stated that “[p]rior to this verdict, juries in the last four talc trials found in favor of Johnson & Johnson, concluding our talc was not the cause of the plaintiffs’ disease. The trial track record underscores that, when allowed to hear the totality of the evidence, most jurors understand that science confirms Johnson’s Baby Powder is safe. To date, every single verdict against the Company that has been through the appeals process has been overturned.”
The Future of Johnson & Johnson Talcum Powder Litigation
Johnson & Johnson’s iconic baby powder accounts for only a small fraction of the company’s annual revenue. The company’s baby powder has been a fundamental part of the brand for over a century. However, questions and concerns about Johnson & Johnson’s product safety have led to more than 18,000 lawsuits claiming the company’s products were laced with asbestos, causing either their ovarian cancer or led to the development of mesothelioma.
Johnson & Johnson is battling lawsuits across the country, defending the safety of their baby powder. Bloomberg reports that Johnson & Johnson, “…J&J still faces almost 18,000 lawsuits over the 135-year-old baby powder. A majority of the cases allege women who used the product got ovarian cancer, while a smaller number claim links to mesothelioma.”
Johnson & Johnson’s reputation has steadily started to drop. According to one case study by the UK reputation intelligence company Alva, Johnson & Johnson has fallen in the rankings, from ninth place dropping to fifty-seventh place out of a total of fifty-eight of the top pharmaceutical companies since 2014.
Juries are starting to hold Johnson & Johnson accountable for mesothelioma caused by asbestos in their talc-based products. If you or someone you love has received a devasting diagnosis of mesothelioma, it is important to contact an experienced mesothelioma attorney as soon as possible.