facebook linkedin twitter

Johnson & Johnson Asks High Court to Void $2B Talc Verdict

June 1, 2021by Mark Sherman, Associated Press
A bottle of Johnson's baby powder is displayed. (AP Photo/Jeff Chiu, File)

WASHINGTON (AP) — Johnson & Johnson is asking for Supreme Court review of a $2 billion verdict in favor of women who claim they developed ovarian cancer from using the company’s talc products.

The case features an array of high-profile attorneys, some in unusual alliances, including former independent counsel Kenneth Starr, who is representing the women who sued Johnson & Johnson. The nation’s largest business groups are backing the company, and a justice’s father also makes an appearance because of his long association with the trade group for cosmetics and personal care products.

The court could say as soon as Tuesday whether it will get involved.

At the root, Johnson & Johnson argues that the company didn’t get a fair shake in a trial in state court in Missouri that resulted in an initial $4.7 billion verdict in favor of 22 women who used talc products and developed ovarian cancer.

A state appeals court cut more than half the money out of the verdict and eliminated two of the plaintiffs but otherwise upheld the outcome in a trial in which lawyers for both sides presented dueling expert testimony about whether the company’s talc products contain asbestos and asbestos-laced talc can cause ovarian cancer.

The jury found for the women on both points, after which Judge Rex M. Burlison wrote that evidence at the trial showed “particularly reprehensible conduct on the part of Defendants.”

The evidence, Burlison wrote, included that the company knew there was asbestos in products aimed at mothers and babies, knew of the potential harm and “misrepresented the safety of these products for decades.”

Nine of the women have died from ovarian cancer, lawyers for the plaintiffs said

Johnson & Johnson denies that its talc products cause cancer and it called the verdict in the Missouri trial “at odds with decades of independent scientific evaluations confirming Johnson’s Baby Powder is safe, is not contaminated by asbestos and does not cause cancer.” The company also is the maker of one of three COVID-19 vaccines approved for use in the United States.

Health concerns about talcum powders have prompted thousands of U.S. lawsuits by women who claim asbestos in the powder caused their cancer. Talc is a mineral similar in structure to asbestos, which is known to cause cancer, and they are sometimes obtained from the same mines. The cosmetics industry in 1976 agreed to make sure its talc products do not contain detectable amounts of asbestos.

Last year, a U.S. government-led analysis of 250,000 women found no strong evidence linking baby powder with ovarian cancer in the largest analysis to look at the question, though the study’s lead author called the results “very ambiguous.”

The findings were called “overall reassuring” in an editorial published with the study in January 2020 in the Journal of the American Medical Association. The study wasn’t definitive but more conclusive research probably isn’t feasible because a dwindling number of women use powder for personal hygiene, the editorial said.

A few months later, the company announced it would stop selling its iconic talc-based Johnson’s Baby Powder in the U.S. and Canada, citing declining demand driven by what it called misinformation about health concerns.

The disputed link between cancer and talc is not really a part of the high court case. Instead, the company said it should have not been forced to defend itself in one trial against claims by women from 12 states, differing backgrounds and with varying histories of using Johnson & Johnson products containing talc.

The $1.6 billion in punitive damages is out of line and should be reduced, the company also argued in a brief that was written by Neal Katyal, a Washington lawyer who aligns with progressive causes and also represents corporate clients. Katyal, who was the acting top Supreme Court lawyer for a time in the Obama administration, declined an on-the-record interview.

The U.S. Chamber of Commerce and trade associations for manufacturers, insurers and the pharmaceutical industry are among the business organizations backing Johnson & Johnson’s appeal.

Tiger Joyce, president of the American Tort Reform Association, pointed to how long it took the trial judge to read the jury its instructions as an indication of how unfair the trial was to Johnson & Johnson. 

“When a defendant is facing a case where it takes over five hours for the judge to read the jury instructions to the jury, you just have to ask yourself what are we doing here,” said Joyce, whose group generally backs limits on liability lawsuits. 

Starr said in an interview with The Associated Press that none of Johnson & Johnson’s legal arguments is worth the court’s time. “As the jury found and as every judge to review this six-week trial record has concluded, Johnson & Johnson’s conduct over decades was reprehensible,” Starr said. 

In addition to Starr, other members of the women’s legal team are former Attorney General John Ashcroft and Washington lawyers David Frederick and Tom Goldstein, frequent advocates before the Supreme Court.

Justice Brett Kavanaugh worked for Starr when he investigated the affair between President Bill Clinton and Monica Lewinsky, which led to Clinton’s impeachment.

Another name that pops up in some documents in the case is E. Edward Kavanaugh, who was the longtime president of the Cosmetic, Toiletry and Fragrance Association and is the justice’s father.

Kavanaugh’s group fought efforts to list talc as a carcinogen or attach warning labels to talc products. Kavanaugh is retired and the group now is called the Personal Care Products Council.

Ethicists contacted by the AP said they haven’t seen anything that would warrant the justice having to step aside from the case. 

Already, one justice almost certainly won’t take part. Justice Samuel Alito reported last year that he owned $15,000 to $50,000 in Johnson & Johnson stock. Federal law prohibits judges from sitting on cases in which they have financial interest.

In The News

Health

Voting

Litigation

July 23, 2021
by Tom Ramstack
Opioid Maker and Distributors Settle State Lawsuits for $26 Billion

A coalition of state attorneys general reached a $26 billion settlement with opioid maker Johnson & Johnson and three of... Read More

A coalition of state attorneys general reached a $26 billion settlement with opioid maker Johnson & Johnson and three of its distributors this week. They blame the companies for a half-million deaths in the United States from overdoses and addictions to powerful painkillers. "Our country's opioid... Read More

July 16, 2021
by Tom Ramstack
Judge Refuses to Toss Lawsuits by Students Seeking Tuition Refunds

WASHINGTON -- In a ruling with implications for the upcoming fall semester, a federal judge in Washington, D.C. last week... Read More

WASHINGTON -- In a ruling with implications for the upcoming fall semester, a federal judge in Washington, D.C. last week refused to dismiss lawsuits by college students seeking tuition refunds. The students want at least part of their tuition and fees returned from the Spring 2020... Read More

July 16, 2021
by Tom Ramstack
Parent Sues D.C. Health Dept. Over Law on Child Vaccinations

WASHINGTON -- The father of a 16-year-old girl is suing the District of Columbia Department of Health over its new... Read More

WASHINGTON -- The father of a 16-year-old girl is suing the District of Columbia Department of Health over its new law that allows children as young as 11 years old to get vaccinated without parental consent. The lawsuit in U.S. District Court says the law is... Read More

July 14, 2021
by Dan McCue
ACLU Sues to Block Texas Abortion Ban

The American Civil Liberties Union on Monday sued the state of Texas to block “radical” new abortion restrictions currently set... Read More

The American Civil Liberties Union on Monday sued the state of Texas to block “radical” new abortion restrictions currently set to take effect on Sept. 1. The ACLU filed the lawsuit on behalf of Texas abortion providers -- led by Whole Woman’s Health -- doctors, health... Read More

Attorneys General Sue Google For Anticompetitive Practices

Attorneys general from 36 states and Washington, D.C., hit Google LLC with yet another antitrust lawsuit Wednesday, accusing the company... Read More

Attorneys general from 36 states and Washington, D.C., hit Google LLC with yet another antitrust lawsuit Wednesday, accusing the company of unfair business tactics to monopolize sales of apps used on Android phones.  The lawsuit says Google bought off competitors and requires restrictive contracts that leave... Read More

July 8, 2021
by Tom Ramstack
Attorneys for Britney Spears Resign From Conservatorship Case

The court-appointed attorneys representing Britney Spears in her conservatorship case resigned Tuesday after the pop icon asked a judge for... Read More

The court-appointed attorneys representing Britney Spears in her conservatorship case resigned Tuesday after the pop icon asked a judge for permission to hire her own counsel. The high-profile case is testing whether California's conservatorship laws protect the wealthy celebrities they are supposed to protect or the... Read More

News From The Well
scroll top