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Johnson & Johnson talcum powder verdicts rub justice the wrong way

There's no evidence talcum powder is a carcinogen, but the $4.69 billion payout from a specious lawsuit implies otherwise.

July 20, 2018

10:18 AM

20 July 2018

10:18 AM

Baby powder causes cancer!

That’s the sensational claim behind some megabucks lawsuits. And they’re paying off. Johnson & Johnson, for 130 years associated with gentleness and baby care, has just been slapped with a monster verdict for allegedly causing uterine cancer, the latest in a lengthening line of such awards. It’s now been ordered to pay $4.69 billion in damages to 22 women who claim the company’s talcum powder products caused ovarian cancer. That’s $550 million in compensatory damages and a much larger amount—$4.14 billion—in punitive damages.

Even for a company that size it’s not chump change.

And it’s all BS. Yes. Every. Single. Bit. Of. It.

This is the plaintiffs’ argument in all the cases: The women claim to have used J&J baby powder with talcum near their ovaries, and sometimes talcum contains trace amounts of asbestos. Asbestos is a known human carcinogen. Le voila!

Except: we don’t even know that the women used J&J baby powder ever, much less regularly. We’re just taking their word for it. They’re not asked to provide receipts. We don’t know that any of the powder used even had trace amounts of asbestos. J&J claims it’s never had any in its products. Asbestos clearly causes lung cancer. But the mechanism by which it does so simply doesn’t apply to other tissues. Lung tissue is uniquely delicate and can also trap foreign substances. Yet even with asbestos, it appears it requires substantial exposure to develop cancer, and the risk is greatly magnified by smoking. Almost all cases are in people who worked in clouds of it for years with no protection, such as shipyard workers and miners. The International Agency for Research on Cancer (IARC) says asbestos may be implicated in some other cancers, though we’ll get to that soon. But consider that even something as terribly deadly as plutonium in the lungs is harmless in your hands.

There are over 22,000 new ovarian cancer cases each year in the U.S; it’s the fifth-most common type among women. By chance alone, 1.8 million American women will develop ovarian cancer this year, regardless of talc exposure. And ovarian cancer rates are highest in women aged 55-64 years, the age range of virtually all plaintiffs. No outside agent is needed to explain their cancers.

The American Cancer Society (ACS) doesn’t list talc as either a known or probable human carcinogen. Nor does the National Toxicology Program of the U.S. Department of Health and Human Services. The Cancer Council of Western Australia goes so far as to call any link between talc and cancer, and specifically talc and ovarian cancer, “a myth.” The International Agency for Research on Cancer (IARC) does classify the perineal (genital) use of talc-based body powder as “possibly carcinogenic to humans” (as plaintiffs’ lawyers note in their complaints), but if you understand IARC’s methodology this means nothing more than, “Maybe it’s harmful and maybe it isn’t; we don’t have enough evidence.” That’s why IARC also says asbestos just might be implicated in cancers other than lung.

So what swayed the juries to blame J&J?

Sympathy is often a factor. J&J has lots of money, after all. Faced with a sympathetic plaintiff, juries tend to get a bit Marxist. (“From each according to his ability…”) Juries also fall prey to the oldest logical fallacy there is: post hoc, ergo propter hoc—“after this, therefore because of this.” The women said they used J&J talcum powder near their genitals for a long time, and they did later develop cancer. They also later had hair turn gray, but presumably nobody’s blaming J&J for that. Presumably.

Now add to that that the venue where the cases were filed—St. Louis, Missouri—is what’s called a “plaintiff’s paradise.”

In its latest report on “Judicial Hellholes,” the American Tort Reform Association ranked St. Louis third; in the previous report, it was first. In the earlier report it noted, “The ‘Show Me Your Lawsuits State’ has a reputation for a judicial nominating process hijacked by the plaintiffs’ bar, a state high court that issues outlier decisions and strikes down civil justice reforms, and a lax standard for admission of expert testimony that allows ‘junk science’ into courts.” It added, “The City of St. Louis is an area of particular concern.”

Since the original rulings against J&J, there’s been a dramatic shift in the wind, from the U.S. Supreme Court on down. In June 2017, by a powerful 8-1 majority, the high court ruled that a company (in that case Bristol-Myers Squibb) can’t be sued in a particular location simply because it happens to sell products there. The plaintiff must file suit where he or she lives, or where the company is located. Plaintiffs can’t go hunting for the jurisdiction where they think they’re most likely to win.

In none of the previous talcum powder rulings against J&J did any of the plaintiffs live in Missouri. and according to a J&J spokesman I talked to, only five of the 22 in the latest case do. Johnson & Johnson is based in New Jersey.

It’s far beyond theoretical that the Supreme Court case could affect this J&J case, in that it quickly affected a previous one Almost instantly, a St. Louis judge ordered a mistrial regarding an earlier J&J talcum powder case involving three non-Missouri plaintiffs, relying on that decision. And just this month, yet another such case was overturned on appeal citing, yes, the Bristol-Myers Squibb decision.

None of which means it’s the end of the road for these bogus cases against J&J. Several legal scholars told Reuters that even at the appellate and state supreme court level, Missouri is historically plaintiff-friendly. So it could all turn on finding the appellate court that will fairly apply the Bristol-Myers decision. That’s why plaintiffs’ lawyers continued with this latest case, and are continuing with others. In that case, J&J would have to apply directly to the Supreme Court, which would probably reject it saying they’ve already covered this ground in the Bristol-Myers case.

Nevertheless, clearly we’re going to see fewer such egregious decisions against corporations throughout the U.S. But, sadly, nevertheless, there are lots of women out there who used J&J talcum powder and are convinced they are ticking time bombs.


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