Johnson’s Baby Powder label cautions consumers against inhalation and notes that the powder is for external use only. However, it does not contain a notice about studies dating back to 1971 that indicate a link between talc-based products and ovarian cancer.
Lawsuits against Johnson & Johnson claim the company knew talc posed a cancer risk but continued to sell products without a warning.
Attorneys for plaintiffs have argued in court filings that Johnson & Johnson has been aware that its talcum-powder products pose a serious health risk, but that the company decided not to disclose the information to consumers to protect sales of popular products.
They claim internal company documents show Johnson & Johnson specifically marketed the allegedly unsafe products to African-American and Hispanic women even though the company was presented with evidence showing talc is dangerous. Plaintiffs assert Johnson & Johnson should have put a warning about the association of talc and ovarian cancer on Johnson’s Baby Powder and Shower to Shower body powder, both of which women use to control odor and moisture in their vaginal areas.
Johnson & Johnson, which claims about 19 percent of the roughly $18.8 billion baby powder market in the U.S., has argued in court that the studies are inconclusive and that the science on which the plaintiffs’ arguments are based is flawed and outdated. The company has said its talc-based products are no more unsafe than alcohol or red meat (neither carries a cancer warning label).
Talc is a naturally occurring mineral and in its purest form can contain asbestos. The International Agency for Research on Cancer (IARC), which is part of the World Health Organization (WHO), classifies talc that contains asbestos as “carcinogenic to humans.” The U.S. Food and Drug Administration (FDA) says it’s unacceptable for cosmetic talc to contain asbestos. Talc without asbestos is classified as “possibly carcinogenic to humans.” Federal laws in place since 1973 require talc products sold in the U.S. be asbestos-free.
To date, Johnson & Johnson has lost jury verdicts totaling more than $717 million.
First Asbestos-Free Talcum Powder Trial
In 2013, Deane Berg became the first in the U.S. to file a lawsuit claiming that asbestos-free talcum powder can cause ovarian cancer. Doctors diagnosed Berg with stage 3 ovarian cancer in 2006 after a pelvic exam showed clotting blood in her ovaries. Berg was 49.
Three doctors examined cancerous tissues removed from Berg’s body and found talc particles embedded in them. They concluded talcum powder was the cause of Berg’s cancer.
Berg’s lawsuit alleged that Johnson & Johnson was negligent not to warn consumers that talc — a key ingredient in Johnson’s Baby Powder and in Shower to Shower — could cause ovarian cancer. She claimed she dusted her genital area with baby powder as a daily routine from the age of 18.
One of the doctors who examined Berg’s cancerous tissues, Daniel Cramer of Harvard University, has studied the issue of talcum powder and ovarian cancer for three decades. In court testimony, Cramer stated talcum powder was likely a contributing factor in 10,000 cases of ovarian cancer annually.
In October 2013, a federal jury in Sioux Falls, South Dakota found that Johnson & Johnson’s body powder products were a factor in Berg’s condition.
However, the court ruled that Johnson & Johnson was not part of a conspiracy and was not liable. The jury did not award Berg any damages.
U.S. District Judge Karen Schreier supported the jury’s findings. Berg told the New York Post in 2016 that she had turned down a $1.3 million settlement with Johnson & Johnson because she didn’t want to sign a confidentiality clause.
Status of Talcum Powder Lawsuits
Two class-action lawsuits as well as hundreds of individual lawsuits filed in state and federal courts followed the 2013 verdict. Juries decided against Johnson & Johnson in four of five cases that went to trial in St. Louis, Missouri. A sixth trial involving three plaintiffs began in June 2017; the judge in that case declared a mistrial.
About 1,000 similar cases are pending in Missouri, with another 527 in New Jersey state and federal court, and one scheduled for trial in Washington D.C. Superior Court. In addition, lawsuits filed by 300 plaintiffs have been consolidated in Los Angeles Superior Court in California. A bellwether trial in Los Angeles ended in August 2017 with a $417 million verdict against J&J.
Missouri: America’s Hub for Talc Trials
Missouri has become the U.S. focal point for talcum powder trials, with more talc cases centralized in St. Louis than in any other city nationwide. This is partly because Missouri law has historically allowed people to file lawsuits like these without residing in the state. Missouri jurors thus far have upheld ovarian cancer claims four times. Johnson & Johnson said it would appeal the verdicts against the company.
However, a June 2017 Supreme Court ruling could change how talcum powder cases brought by out-of-state residents proceed in Missouri. Justices ruled that hundreds of out-of-state residents who claim the blood thinner Plavix caused adverse reactions can’t sue the pharmaceutical company Bristol-Myers Squibb Co. in California state court. The decision followed a similar one in May regarding out-of-state injury claims against BNSF Railway Co.
“Both were seen as wins for companies opposed to ‘venue shopping,’ in which those filing suit seek out favorable state courts,” according to an Associated Press report.
Judge Declares Mistrial
Following the High Court’s ruling, a St. Louis circuit judge declared a mistrial in the first multi-plaintiff trial in Missouri over the risks from Johnson & Johnson’s talcum powder products.
In May 2017, Circuit Judge Rex M. Burlison had issued an order granting a plaintiff’s motion to consolidate three cases for trial in St. Louis. All three cases were brought by the families of three women who died of ovarian cancer after using Johnson & Johnson powders on their genitals for decades.
The trial was the first talcum powder trial to include claims from a Missouri resident. The other two deceased women in the trial lived in Virginia and Texas. The three plaintiffs were Michael Blaes, Savanna Crews and Darlene Evans.
Retrials Possible in St. Louis
Legal experts speculate that the mistrial may not be the only aftermath of the Supreme Court ruling.
“The decision means that non-Missouri plaintiffs are going to have a very hard time keeping their cases against Johnson & Johnson,” Fordham University law professor Howard Erichson told the Associated Press.
New York liability attorney Michael Duffy added that the Supreme Court ruling likely means retrials for the four St. Louis cases involving multimillion-dollar awards. The ruling “really puts a horrific burden on the plaintiff,” he said.
J&J Wants Reversals
Johnson & Johnson spokeswoman Carol Goodrich told the Associated Press in an email that the Supreme Court ruling “requires reversal of the talc cases that are currently under appeal in St. Louis.”
“In its decision, the U.S. Supreme Court’s ruling makes it clear that Johnson & Johnson was wrongfully forced to defend itself in multiple trials in Missouri, a state with no connection to the plaintiffs,” the company said in a statement.
An attorney for many of the plaintiffs in the Missouri talc cases argues that Johnson & Johnson uses a factory in Missouri to package and label talcum products, and therefore, the state is a proper venue.
“If we can establish specific jurisdiction, which we think we can, at that point we can hold the prior verdicts.”- attorney Jim Onder told the Associated Press
New Jersey State and Federal Talc Cases
Another 200 talcum powder cases are pending in New Jersey state court. In September 2016, a New Jersey judge threw out would have been the first two talc cases to go to trial in that state after concluding there wasn’t reliable evidence that talc leads to ovarian cancer.
About 327 cases are pending in New Jersey district court as part of a federal multidistrict litigation.
The judge rejected testimony from plaintiff’s witnesses Dr. Graham Colditz, a Washington University epidemiologist, and Cramer, who had testified during Berg’s trial and became the first scientist to suggest genital talcum powder use causes ovarian cancer. Both experts were allowed to testify at trial in the St. Louis cases.
Talcum powder cases have also been consolidated in New Jersey federal court. As of September 15, 2017, about 878 cases were pending under a multidistrict litigation in U.S. District Court District of New Jersey. Judge Freda L. Wolfson is overseeing the MDL, which is intended to centralize and streamline court proceedings for the complex litigation.
California Consolidated Talc Litigation
A Los Angeles jury in August 2017 awarded $417 million to an ovarian cancer patient in California’s first bellwether trial.
Eva Echeverria, 63, of Los Angeles claimed to have developed ovarian cancer after using talcum-powder products on her genitals for decades. Doctors diagnosed her with cancer in April 2007, and she underwent surgery and other treatments, according to her lawsuit against J&J. Her bellwether trial was the only state-court talc trial to take place outside of Missouri.
A bellwether trial is a test case in which attorneys on both sides can weigh the effectiveness of their arguments. More than 300 people have filed talcum powder lawsuits against Johnson & Johnson in California. The cases have been consolidated in Los Angeles Superior Court.
Echeverria’s lawsuit accuses Johnson & Johnson of knowing talc posed a serious health risk but continuing to sell it anyway. Johnson & Johnson maintains that the accusation is based on flawed science.
The lawsuit initially named Johnson & Johnson and its talc supplier, Imerys Talc America. However, the supplier exited the case after the judge agreed that the company could not be held liable “as a provider of raw material in bulk to a sophisticated buyer,” according to HarrisMartin Publishing.
California Talcum Powder Class Action
In April 2014, Stockton, California resident Mona Estrada filed a class-action claim against Johnson & Johnson and Johnson & Johnson Consumer Companies Inc. in the Eastern District of California. Her case was moved to New Jersey, where a judge dismissed it, saying Estrada didn’t suffer an “injury-in-fact” and didn’t have standing to file the lawsuit.
Estrada used Baby Powder from about 1950 to 2013 but does not have ovarian cancer.
According to her law firm, her claim was filed on behalf of her and other women. In her complaint, she cited a lengthy list of other studies that linked talc to ovarian cancer.
Estrada claimed “Johnson’s Baby Powder is not safe” and that studies document that women who used talc-based powders on their genital area have a 33-percent increased risk of developing ovarian cancer than women who did not use the products.
Allegations against Johnson & Johnson include:
- Violating consumers’ legal remedies
- Violating the Unfair Competition law and business and professions code
- Negligence
- Breach of implied warranty
She alleged J&J knew the risks of its powder products that have talc as an ingredient and yet took no action to warn consumers like her of the dangers of using them as an odor stopper or to help with sweat or moisture.
Illinois Talc Class Action
Illinois resident Barbara Mihalich filed a class-action claim against Johnson & Johnson and Johnson Consumer Companies.
Milalich’s lawsuit — filed in the Southern District of Illinois — claims that the defendants violated the Illinois Consumer Fraud and Deceptive Business Practice Act and profited unjustly from its talcum powder products.
Her claim said she brought the legal action for herself and on behalf of “other similarly situated Illinois consumers” that bought Baby Powder. Mihalich was not diagnosed with ovarian cancer and does not claim any physical harm from the powder products.
In October 2016, Mihalich’s case, along with those who had signed onto the class action, was transferred to New Jersey federal court under the MDL.
Author
Emily Miller
Emily Miller holds five Health Literacy certificates from the Centers for Disease Control and Prevention as well as a Bachelor of Science in Journalism from the University of Florida. She is a member of The Alliance of Professional Health Advocates and the American Association for the Advancement of Science. Emily was diagnosed with a chronic illness as a child and has firsthand experience with many of the topics she writes about as a member of the Drugwatch team. She is an award-winning journalist who has reported on health and legal news for reputable organizations, including the South Florida Sun Sentinel, San Antonio Express-News, UF Health News and Reporters Committee for Freedom of the Press. She draws on her background as both a patient and a journalist to help readers understand complex health and legal topics.
