Ten years into the nationwide litigation over talcum powder, Johnson & Johnson is bleeding billions of dollars in settlements, legal fees, jury verdicts, and stock valuation. The company faces 15,299 cases nationwide in federal court, but all of the action so far has been in state courts.
The U.S. Justice Department started a criminal investigation in July 2019 into whether Johnson & Johnson lied to the public about the possible cancer risks of its talcum powder. A grand jury in Washington, DC, is examining documents related to what company officials knew about any carcinogens in their products.
The FDA announced on October 18, 2019, that over 33,000 bottles of Johnson’s Baby Powder were voluntarily recalled after testing positive for asbestos. Johnson & Johnson voluntarily recalled one lot of baby powder, after a sample tested positive for asbestos.
Johnson & Johnson has known about cancer-causing asbestos in its talc products since 1957. But in a deny-and-attack litigation strategy, the company has lied about it to consumers and the government, has faked research, has covered up its own findings about asbestos in talc, has bullied independent researchers and has stonewalled litigants.
Juries in state courts, where all the trials took place, have held J&J liable for failing to warn consumers that its baby powder causes fatal ovarian cancer and mesothelioma.
Through it all, J&J implausibly contends that its baby powder and talcum powder is “safe” – a claim that has been proven wrong. Meanwhile, scientists urge consumers not to use baby powder because of the cancer risk.
Plaintiff strategies
Attorney Mark Lanier of Houston, who won a $4.7 billion talc verdict against Johnson & Johnson this summer, told CNBC in December that the recent $50 billion plunge in shares of J&J plays into his hands in seeking a settlement with the company.
“This litigation, these problems can be resolved [for] much, much less than” than the $50 billion loss in J&J’s stock market value, Lanier said. “It serves my purposes as a litigator to say, ‘Yes, get their attention; keep driving the stock down.’”
Lanier represented 22 women with ovarian cancer who proved that J&J’s talc-based products, including its baby powder, contain asbestos and caused them to develop ovarian cancer. In August 2019, a Missouri judge affirmed the nearly $4.7 billion jury award.
“If the company continues to handle [the litigation] wrongly, then I think the company is going to continue to have problems that cost it two, three, four, five times what it should,” Lanier said. “Every case ultimately settles. Every case finds resolution. At some point, it’s a business decision for the litigants as well as for the company. And smart minds can prevail on that.”
The key turning point in the litigation came in 2018 when J&J finally complied with discovery requests, which disclosed damning revelations that its own tests have found asbestos in its talc for 60 years and that the company lied to the FDA about it.
Since then plaintiff lawyers have introduced the internal documents into evidence with devastating results at trial. Most of the standing verdicts have involved plaintiffs with mesothelioma.
$4.7 billion awarded in December 2018 to 22 women with ovarian cancer. A Missouri state jury made the award after it heard that Johnson & Johnson has known for decades about the risk of asbestos contamination in its talc.$325 million awarded in May 2019 in New York to Donna Olson, whose mesothelioma was caused asbestos-laced Johnson & Johnson baby powder. The company’s damning internal documents were used as evidence.$117 million awarded by a New Jersey jury in April 2018 to Steven Alonzo, who has mesothelioma.$40.3 million awarded by a California jury in October 2019 to Nancy and Phil Cabibi because the company’s baby powder was tainted with asbestos. In 2017, Nancy was diagnosed with mesothelioma.$37.3 million awarded by a New Jersey jury in September 2019 to four plaintiffs claiming they developed mesothelioma from inhaling asbestos allegedly present in Johnson & Johnson’s cosmetic talc products. The judge actually struck the closing argument by defense lawyer Diane Sullivan for accusing the plaintiffs’ attorneys of creating evidence and being sinister.$29.4 million awarded by a California jury in a March 2019 trial involving a Teresa Leavitt, who proved that her mesothelioma is tied to her regular use of Johnson & Johnson’s talcum powder.$25.75 million awarded by a California jury in May 2018 to Joanne and Gary Anderson. She was diagnosed with mesothelioma and proved that Johnson & Johnson was negligent and did not warn consumers about possible health risks from its Baby Powder. • Several additional verdicts are in the $25 to $20 million range. Linda O’Hagan was diagnosed with mesothelioma after using asbestos-laced baby powder and she filed suit in Oakland, CA.
Johnson & Johnson finally began settling cases in 2019, but most are hidden because the company forces plaintiffs to sign a confidentiality agreement. One settlement that went public was for $2 million on January 6, 2020.
Lawyers who won the plaintiff verdicts include Mark Lanier, Eric Holland, Christopher Placitella, Tim Meadows, Joseph Satterley, Jerome Block, David Greenstone, Mark Robinson, and Michael Miller – plus an army of others.
Defense successes
Defense attorneys are led by Peter Bicks of Orrick, Herrington & Sutcliffe and include Allison Brown of Skadden, Morton Dubin of Orrick, and Diane Sullivan of Weil, Gotshal & Manges.
Johnson & Johnson has found courts to overturn large plaintiff verdicts, but they are based on a jurisdictional issue – and not on the merits of the case. Most of the reversed cases are in Missouri, where an appeals court ruled that 1,000 out-of-state plaintiffs could not bring suit in the state.
The company has successfully used the June 19, 2017, US Supreme Court ruling in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773. The Court held that California courts lacked personal jurisdiction over the defendant on claims brought by plaintiffs who are not California residents and did not suffer their alleged injury in California.
This led to several reversals of ovarian cancer verdicts:
A trial judge in California overturned a $417 million talc cancer verdict in October 20, 2017. Relying on the Bristol-Myers Squibb case, the judge reversed the 2016 award to Eva Echeverria, who developed ovarian cancer.A Missouri appeals court threw out a $110 million verdict in October 2019, awarded to Lois Slemp, who got cancer from the company’s baby powder. The court said she should not have been allowed to bring her ovarian-cancer lawsuit to trial in St. Louis because she is a resident of Virginia.A $72 million verdict in 2016 in favor of the family of a woman whose death from ovarian cancer was reversed by the Missouri Court of Appeals, Eastern District in October 2017. The court said the case over Alabama resident Jacqueline Fox’s death from ovarian cancer should not have been tried in St. Louis.Plaintiffs have also suffered dismissals, hung juries and mistrials in mesothelioma and ovarian cancer cases.
Andreas Saldivar has been a leading defense expert for Johnson & Johnson, testifying up to 30 trials. The company was shocked when his lab found asbestos in Johnson’s Baby Powder in September 2019. This prompted the humiliating recall of over 33,000 bottles of Johnson’s Baby Powder in October 2019.
The lab, AMA Analytical Services, Inc. was working under a contract with the FDA, which stood by the finding. When plaintiff lawyer Nate Finch asked an Indianapolis judge to let him tell the jury about it, J&J quickly settled the case with a confidentiality agreement.
Meanwhile, when plaintiff experts testify, they lead to spectacular verdicts like the $4.7 billion award in December 2018 in Missouri state court.
They include Dr. William Longo of Suwanee, GA, who has testified for talc plaintiffs for 30 years. He is a material scientist/electron microscopist who specializes in the analysis of asbestos-containing materials. In 1983, he founded Micro Analytical Laboratories.
Other experts include James R. Millette Ph.D. of Cincinnati, an engineer who is a Fellow of ASTM-International and serves as Vice-Chair for Air Quality. He is also a Fellow of the American Academy of Forensic Scientists.
Another witness is Dr. David Egilman, who served as the editor of a journal that published his 2014 article that lawyers frequently cite as the foundation for opinions talc contains asbestos. Egilman, a clinical professor of family medicine at Brown University, said he was first retained in a talc case two years ago and has billed $1 million in the litigation since.
The litigation will continue for years to come because talc and asbestos are found together in talc mines. The elemental structure of talc and chrysotile asbestos are nearly identical. Both Talc and Chrysotile Asbestos are formed from the same four basic elements: magnesium, silicon, hydrogen, and oxygen.
“It is unlikely that any naturally occurring talc deposit would not also contain some asbestos. Combine the foregoing with the fact that there is no practicable and economical means by which to separate asbestos from talc, it is reasonable to conclude that, it is more likely than not, that all talc contains asbestos,” writes John Ray, who has been a leading consultant to the Mass Tort industry for more than a decade.