A $117 million verdict against Johnson & Johnson (JNJ.N) and a supplier in favor of a man who said his asbestos-related cancer was caused by long-term use of J&J’s Baby Powder could open a new front for thousands of cases claiming the widely-used product caused cancer, legal experts and plaintiffs lawyers said.
Bottles of Johnson & Johnson baby powder line a drugstore shelf in New York October 15, 2015. (File photo: Reuters)
J&J has been battling some 6,000 cases claiming its baby powder and Shower to Shower products cause ovarian cancer. The $117 million verdict by a New Jersey jury last week, however, involved a different form of cancer that is clearly linked to asbestos.
Plaintiffs lawyers claim that internal J&J documents seen in that trial show that baby powder had been contaminated with asbestos. They now plan to use the documents in upcoming ovarian cancer trials to allege that the asbestos contamination also caused that form of cancer.
J&J and Imerys Talc America, a unit of Imerys SA (IMTP.PA), have vowed to appeal the New Jersey verdict and deny asbestos has ever been present in their products or that their talc can cause any form of cancer.
The case of Stephen Lanzo, a New Jersey resident who claimed he developed mesothelioma after using baby powder since his birth in 1972, was the first time a jury saw the internal J&J documents which plaintiffs claim show that J&J knew since the 1970s that the talc in its baby powder was contaminated by asbestos during the mining process.
J&J says the documents present no such evidence, but merely show the company’s caution.
Peter Bicks, a lawyer leading J&J’s talc asbestos defense, said that in the early 1970s, the company was looking at how it could potentially remove asbestos from talc if the two became intermingled in the mining process. He says no contamination was ever found, citing decades of testing by independent laboratories and scientists.
Bicks called the claims of a link between talc and asbestos “junk science.”
Mesothelioma, a rare and deadly form of cancer closely associated with exposure to asbestos, affects the delicate tissue that lines body cavities.
While the link between asbestos and mesothelioma is sufficiently established, scientists are divided on whether asbestos exposure can cause ovarian cancer. Some studies have shown an association between the two, while other studies have found no such link.
Elizabeth Burch, holder of the Charles H. Kirbo Chair of Law at the University of Georgia, said it remained an open question whether talc contained asbestos and that each case would turn on the facts.
But J&J, which had $76.5 billion in sales in 2017, gives the plaintiffs’ bar an enticing new target, said Nathan Schachtman, a lecturer at Columbia University who used to defend asbestos cases.
Some 3,000 people are diagnosed with mesothelioma each year, according to the American Cancer Society, a number that Howard Erichson, a law professor at Fordham University who specializes in mass tort litigation, called significant from a legal standpoint.
But the roughly 22,000 women who were diagnosed with ovarian cancer last year, according to the National Cancer Institute, provide lawyers with a potentially much larger pool of plaintiffs to tap.
“This is just the tip of the iceberg,” said Mark Lanier, one of the lawyers representing consumers, who said plaintiffs would file thousands of additional mesothelioma and ovarian cancer cases.
New Jersey-based J&J in a statement after the Lanzo verdict said plaintiffs’ attorneys had shifted their strategy to focus on asbestos after a series of losses at trial and in court rulings over previous allegations that the talc itself causes cancer.
Of the six ovarian cancer trials to date, juries found J&J liable five times, but a Missouri appellate court threw out the first verdict and a California judge tossed another. Appeals of the other cases are pending.
J&J in November also won the first trial over allegations that its talc contained asbestos and caused a woman’s mesothelioma. Plaintiffs lawyers say the jury in that case did not see the documents presented during the Lanzo trial.
But Erichson said the widespread use of J&J’s consumer products generally make the company an attractive litigation target.
“Baby powder is as ubiquitous a product you can think of and there are lots of people who can testify they’ve been exposed to it,” he said.