(Bloomberg) -- Johnson & Johnson has defended lawsuits alleging its baby powder caused ovarian cancer in women in the past, but the stakes in a trial that began in St. Louis Wednesday are massively higher, as 22 women try to link their illnesses to exposure to asbestos in the company’s talc.
The case is part of a recent wave of trials over allegations the company sold talc in its iconic white Johnson’s Baby Powder bottles knowing it was tainted with asbestos and failed to warn consumers to protect the brand. The company steadfastly maintains there is no asbestos in its baby powder and the product is safe.
“The talc in Johnson’s Baby Powder does not contain asbestos or cause ovarian cancer and we will continue to defend the safety of our product,” Carol Goodrich, a J&J spokeswoman, said in an emailed statement.
While some St. Louis state court juries have found J&J’s talc products were a cause of ovarian cancer, they’ve never focused on the claim that the product was tainted with asbestos and that women unknowingly exposed themselves to that carcinogen by using it.
“Its a risky move for the plaintiffs’ lawyers because they are testing out a new theory and it may not fly,” said Jean Eggen, a Widener University law professor who teaches about mass-tort cases. “It will come down to a question of whether the jury believes the science is there to back up the theory.”
It’s a dicey situation for J&J as well, because lawyers for women targeting its talc products have persuaded other juries in the same court to award as much as $110 million to an individual. Awards of that magnitude to all 22 plaintiffs or their families would leave J&J on the hook for more than $2 billion. J&J also won a defense verdict in St. Louis and reversal of the first plaintiffs’ award.
Those decisions followed a New Jersey jury’s finding in April that J&J and a unit of talc supplier Imerys SA must pay $117 million to a banker who claimed his cancer was tied to baby powder use.
J&J still faces talc lawsuits by more than 9,000 plaintiffs, primarily focused on ovarian cancer, according to a May securities filing. That number has grown from 1,200 in 2016. An unknown number of consumers claim that J&J’s talc products caused mesothelioma.
Mark Lanier, the women’s lead lawyer, contends he’s uncovered stacks of new evidence showing J&J officials knew by the 1960s its baby powder was tainted with at least trace amounts of asbestos and hid the product’s cancer risks to protect its reputation.
Lanier, one of the preeminent U.S. plaintiffs’ lawyers, has coaxed billion-dollar verdicts out of other juries in past pharmaceutical mass-tort cases. He’s also hit J&J hard over its artificial hips. In the St. Louis case, a unit of talc supplier Imerys SA agreed to pay at least $5 million to settle the women’s two dozen claims against it prior to trial, according to two people familiar with the deal.
J&J’s lawyers counter the rising number of asbestos-linked talc claims against the company isn’t tied to new evidence, but to plaintiffs’ lawyers desperately scurrying to rescue cases after New Jersey and California judges rejected claims the company’s talc-based products caused cancer.
A California ruling in 2017 erased a $417 million jury verdict and a New Jersey decision in 2016 dismissed two cases headed for trial, said outside J&J lawyer John Beisner. Both rulings are on appeal. Those courts “flatly rejected plaintiffs’ theories that the talc in the challenged powder products causes ovarian cancer,’’ Beisner said in an interview.
As a result, Lanier and other plaintiffs’ lawyers “are trying to salvage their cases by shifting to argue that supposed asbestos contamination is the cause,” he said. “This new theory is completely speculative, and there is zero scientific literature tying the sort of asbestos exposure plaintiffs hypothesize to ovarian cancer.”
In opening statements, Lanier said the “big fight” in the case was whether there’s asbestos in J&J’s talc products and whether J&J knew it and hid it.
The women’s lawyer said multiple studies by universities, companies, agencies and even J&J itself found asbestos in talc, but that J&J had “manipulated the science in more ways than I can count” to obscure the facts. The company was compelled to protect its baby powder brand as its “sacred cow,” Lanier added.
Peter Bicks, J&J’s lawyer, countered Lanier couldn’t offer any evidence his clients’ illnesses were caused by baby powder or had cancers associated with asbestos exposure. He said 18 laboratories, universities and agencies, including the U.S. Food and Drug Administration, cleared J&J’s talc products of any asbestos contamination.
“To say that J&J rigged test results is false,” Bicks told jurors. “J&J always went above and beyond in testing for asbestos.”
Most of the women in St. Louis trial used baby powder, but others used Shower-to-Shower, another of J&J’s talc-based products. J&J sold the product to Valeant Pharmaceuticals International Inc. in 2012. Valeant now faces asbestos suits over the body powder.
The women, whose jobs range from school bus driver to executive director of a job-retraining program, come from states across the country, such as Pennsylvania, California, Arizona and New York. Six of the women have died, so their families are pressing wrongful-death claims against J&J.
When Krystal Kim, one of the women suing, learned testing by her lawyers of the Johnson’s Baby Powder she used showed it was laced with asbestos, she felt sick. “I was scared and mad at the same time,” said Kim, a 52-year-old former computer consultant now battling ovarian cancer. “It certainly wasn’t what I expected to have in my house or to be putting on my body every day.”
Kim traveled to St. Louis for the trial and she’s banking on jurors holding J&J accountable for her cancer after hearing Lanier’s evidence. “I’m hoping this jury says no more little girls should be harmed by this powder,” she said. “I’m hoping it stops here.”
The case is Ingham v. Johnson & Johnson, No. 1522-CC10417, Circuit Court, City of St. Louis, Missouri.
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