A jury recently handed down a decision that surprised many and has brought attention to the claimed dangers of a common ingredient: the talc used in baby powder and many other products. In the first of what could be many similar decisions, the jury found that the actions of pharmaceutical and consumer goods giant Johnson & Johnson (J&J) resulted in the ovarian cancer of Jaqueline Fox. Fox died in October, but her family has the satisfaction of knowing that those who caused her early death have been held accountable.
Most people don’t give a second thought to talc, the soft mineral that makes up the bulk of every shaker of baby powder. Cosmetics such as baby and bath powders are familiar uses, but talc is used in the manufacture of many products, including plastics, paints, and ceramics, which all account for more consumption than cosmetics. Even the paper industry, which uses talc to make paper smoother, whiter, and hold ink better, uses double the amount put into cosmetics.
The US Food and Drug Administration (FDA) has issued no explicit warnings for talc, but notes that it is chemically related to asbestos, a known human carcinogen. The two can be found (and mined) together and because of this care must be taken when mining and purifying talc. The FDA points out that a potential link between talc and ovarian cancer has been suggested since the 1960s, but these studies have not been conclusive.
More than 1,200 women have reportedly sued Johnson & Johnson for not publishing warnings about talc on their products. In June of 2014, many of these cases were consolidated in St. Louis. Around 1,000 are now on record there, with another 200 in New Jersey state court (where J&J is headquartered). Fox’s was the first to be heard.
According to the plaintiffs’ lawyers, a critical factor in the decision was information contained in internal J&J documentation. Memos and other corporate documents convinced some members of the jury that J&J had been aware of the risk for more than three decades. Instead of taking steps to make the product safer, or even include a warning label, they “tried to cover up” the danger and “actively undertook to hide the truth” from regulators and the public. They focused on the long-term preparation for a lawsuit instead of addressing the problem.
As it has throughout the case, J&J denies these claims and stands by the safety of talc. They expressed sympathy with Fox’s family and emphasized their focus on consumer safety, but made no other comment immediately after the verdict.
Marvin Salter, Fox’s son, was stunned by the amount of the jury award, which includes $10 million in actual damages and $62 million in punitive damages (about half of which is intended for the Missouri Crime Victim Compensation Fund). He pointed out that this case was not about the money: his mother’s fight was to force J&J and other manufacturers of talc products to warn consumers of the risks. She used these products daily for most of her life, but had no idea there was any danger until she was diagnosed with stage 3 ovarian cancer. Testimony in the trial showed that talc had accumulated in and inflamed her ovaries, which eventually led to the cancer. Attorneys at trial were able to show that around 10% of the 14,000-15,000 ovarian cancer deaths in the US each year are linked to talc.
In justifying its decision, the jury found J&J guilty of product liability, failure to warn, negligence, and conspiracy. Although the size of the award might ultimately be reduced on appeal, this kind of result is exactly why product liability law and punitive damages exist. When an individual or a company knowingly markets a dangerous product, it’s not enough to make them pay damages to injured consumers. Too many companies simply factor this into their operating expenses as a ‘cost of doing business.’ Large awards hold companies accountable, making it too expensive for them to operate in unsafe ways. As one plaintiffs’ attorney noted, this also sends a message to others who might try a similar approach: if you are negligent today, you will pay in the end.
Craig Swapp & Associates has experience with product liability law. If you or a family member has been harmed by a defective product and you believe that negligence is involved, give us a call at 800-404-9000 for a free consultation to discuss your case. You can also leave a message for us online, or have someone answer your questions 24×7 by using the LiveChat option available from any page on our website.