Across the country, thousands of individual women are actively pursuing litigation and seeking damages with varied claims that their reproductive cancers are the result of years of talcum powder use.
In just the past four years, Johnson & Johnson, renowned for its Baby Powder, has been hit with more than $700 million in jury awards regarding this issue. At present, some 4,800 women have filed suits against the company, which has lost six of the seven cases decided so far in courts spanning from the east to the west coast.
With the most recent – and most shocking – jury award to date in this controversy, Johnson & Johnson was ordered to pay $417 million to a California woman named Eva Echeverria, because they failed to warn about the potential risks of using their products containing talcum powder. At 63 years old, Echeverria is terminally ill with ovarian cancer and in critical condition at the time of her trial, was too ill to testify.
L.A. Verdict Grabs Headlines, Broad Consumer Interest
After only two days of deliberating the talcum powder cancer lawsuit, a Los Angeles Superior Court jury came out in favor of Echeverria, and found Johnson & Johnson had failed to adequately warn consumers about an increased risk of ovarian cancer.
In the contentious trial that lasted four weeks, Echeverria argued that she developed ovarian cancer in 2007 after using the company’s products, according to their instructions, since she was 11 years old. Throughout her life, she used both the Baby Powder and Shower to Shower product lines from the company.
She was the first California plaintiff to have her talc powder suit go forward to trial despite many hundreds of others looking to consolidate claims in the state’s courts. Echeverria originally filed suit in 2016 with six other women.
The company is appealing the generous, but not surprising, verdict for a California jury, known for returning extraordinary punitive damage awards.
How a Natural Substance Became Icon of Product Safety
Johnson & Johnson’s Baby Powder was first marketed and sold to the public in 1894.
Baby Powder. The mere thought of it conjures a soft, pleasant-smelling and natural product with a multitude of beneficial uses. What could be considered safer than a product marketed for use on babies? It’s in the name — baby powder – and inherently carries the notion that it is gentle – and safe—enough for use on skin, so much so, that it is appropriate for an infant.
Talc is the primary component of soapstone, and is also called steatite. Chemically, it is known as hydrated magnesium silicate. Today’s talc is mined around the world, and produced in industrial labs for use across industries and product lines, from cosmetics such as eye shadow and compact powder to use as a softening or anti-caking agent.
And indeed, more than a century ago, midwives, nurses and new mothers understood well the properties of a powder made from natural minerals to soothe the skin, reduce friction, dry up diaper rashes and help generally calm skin irritations of all kinds.
As history would have it, Johnson & Johnson discovered its talcum-containing product gold mine slightly by chance. The company actually made medical plaster at the time that was used to stabilize broken bones, just as it is today. But when complaints from patients and physicians came in stating some of the plasters irritated the skin, a now-famous company representative began sending Italian talc with orders of the plasters to reduce the irritation, and a mass-market product was born.
A Name You Can Trust
Ranked prominently among the Fortune 500, Johnson & Johnson is headquartered in New Brunswick, New Jersey, and since its founding in the late 1800s, has become a trusted household name for American consumers. With divisions in medical equipment and supplies, consumer products and many others, the multinational company boasted profits of $16.5 Billion for fiscal year 2016.
But public opinion may be swaying, with all eyes on how the company is choosing to litigate the increasing claims against not only its products, but it business practices with regard labeling those that may in fact be backed up by science to have the potential to cause harm. In case after case of a Johnson & Johnson baby powder lawsuit, the courts and the public are paying attention, and the company finds itself defending its good name.
Assessing the Risks, Weighing the Evidence
Experts on behalf of the L.A. plaintiff theorized the impact of talc producing chronic inflammation that in turn may cause ovarian cancer, and in Echeverria’s case, did.
Those testifying on behalf of Johnson & Johnson, however, said that more expansive epidemiological studies show genital talc use has a risk ratio of 1.3 for ovarian cancer, meaning women who talc-dust got ovarian cancer at a rate of 1.3 times those who did not use powder in that manner.
During the much-watched trial, the attorney for the cancer sufferer, stated it was clear when looking at the evidence that the company’s internal business practice was to be questioned. He asked the jury to evaluate the credibility and bias of the company’s medical and scientific expert witnesses, terming them “night and day” when compared to Echeverria’s expert witnesses.
He pointed to a 1964 internal Johnson & Johnson document that said cornstarch, as opposed to talc, could be absorbed safely in a woman’s vagina as well as an article published in 1996 that reported on condom companies stopping the use of talc in their products as a result of growing health concerns. He finally offered a 1997 letter from an industry lobbyist who at the time, warned that company-sponsored studies were showing a link between genital talc use and ovarian cancer.
Lawyers for the company countered by referencing a USDA study that had not found that talc products were carcinogenic. And another out of Harvard which examined 121,000 women, 78,630 of whom had used the company’s talc over a long period of time. It found that 307 of those women were diagnosed with ovarian cancer and used that data to conclude there was no link between the talc and cancer.
But attorneys for Echeverria cited a study from all the way back in 1982 showing 92 percent of women who used a talc-based powder as a moisture-absorbing and freshening agent in their underwear were in fact shown to have an increased risk of ovarian cancer. Indeed, her legal team called a diverse set of medical experts to the stand, including a toxicologist, a renowned Harvard pathologist as well as her own oncologist, Dr. Annie Yessaian a licensed, practicing obstetrician-gynecologist in Los Angeles.
Together, they helped solidify her argument that her daily use of Johnson & Johnson’s Baby Powder caused talc particles to travel up her reproductive tract and to her ovaries, inciting the chronic, or continuous, inflammation which creates a rich environment for cells to become cancerous.
Despite attempts to exclude portions of her testimony, Dr. Yessaian said she believed it was “more probable than not” that talc had caused her patient, Echeverria’s cancer. Los Angeles Superior Court Judge Maren E. Nelson ruled to allow the oncologist’s opinion, however, citing the overall methodology Yessaian used to rule out the possible causes of Echeverria’s cancer and point to talc as the culprit was clearly accepted as legitimate under the law.
The (Other) Problem with Talc
It is important to note that The American Cancer Society was prominent in having asbestos, a well-known carcinogen, (a substance that causes cancer or helps cancer grow) inherent in natural talc, removed from consumer products containing it in the 1970s.
Several of those cases arose from suspected links between incidences of cancer and talc-dusted condoms and diaphragms.
The organization weighs in on the baby powder lawsuit issue on its website, adding a note of advice:
“It is not clear if consumer products containing talcum powder increase cancer risk. Studies of personal use of talcum powder have had mixed results, although there is some suggestion of a possible increase in ovarian cancer risk. Until more information is available, people concerned about using talcum powder may want to avoid or limit their use of consumer products that contain it.”
Additionally, the organization states that any concrete link between talc powder and ovarian cancer would be dependent, conclusively, on whether women who apply talcum powder regularly in the genital area have an increased risk of ovarian cancer.
Attention from the medical community about talc linked to ovarian cancer was first focused in Britain in 1971, when a group of researchers there discovered talc particles embedded in the ovarian tumors of cancer patients. Since that seminal research, an almost equal number of studies have been conducted alleging to find and not to find a direct link between the substance and cancer-causing inflammation over time in patients.
In its summary report on the issue, the National Institutes of Health’s Library of Medicine journal posits that strictly on the issue of ovarian cancer and talc use, many questions remain unanswered. Can powder applied to skin surfaces of the external genitalia actually enter the adult female reproductive tract, it asks. The article goes on to suggest that such evidence would mean talc particles could “migrate upward against both gravity and the downward flow of vaginal mucous and menstrual fluids.”
But the official journal entry from the NIH concluded that further investigation into talc and other reproductive tract cancers is needed. It even opened the door for studies into more cancers beyond ovarian, such as talcum powder fallopian tube cancer and others, to be instigated
“Genital exposure to talc dust was first hypothesized as not only a possible risk factor for ovarian tumors but also cervical and endometrial cancer. It might be expected that the cervix is at greater risk than the ovaries due to the buildup of talc particles on the uterine cervix, which serves as a barrier to uterine contamination. This association has not been studied, but such data would be informative.”
Supporting other findings, an analysis in 2003 combined data from 16 studies, which found a whopping 30 percent increase in ovarian cancer among talc users specifically. The studies tended to show that only certain types of ovarian cancer are increased, but considering the lifetime risk for an average woman to develop ovarian cancer is less than two percent, a 30 percent increase of this figure is not a marginal finding.
The Lawsuits That Paved the Way for L.A.
The headline-grabbing California verdict this summer was predicated by a number of similar plaintiff actions in other states and throughout the course of the past 10 years across the U.S.
In May of this year, a jury in St. Louis, Missouri agreed to award $110 million to Lois Slemp, who at age 62 was battling both ovarian and liver cancer, and was too ill to attend her own trial. She claimed her 40-plus years of using baby powder contributed directly to her cancers, and pointed to lab results showing asbestos particles found inside her body. She was diagnosed with ovarian cancer in 2012, which subsequently spread to her liver.
Slemp’s case was the fifth talcum powder-related lawsuit brought in the same district of St. Louis, and three out of the five returned verdicts totaling $197 million. All currently under appeal by the manufacturers, those cases saw awards of $72 million, $70.1 and $55 million, respectively.
Other cases looked at the cause and effect of talcum powder and fallopian tube cancer among other links with disease and involving the use of a range of products and the development of cancer cells.
Jurors contended in the case of Jacqueline Fox that for decades, Johnson & Johnson had been negligent in not warning consumers about the dangers of products containing the mineral. Fox said she used the company’s baby powder and its Shower to Shower powder for 50 years.
Not every case won a favorable judgement, however. A Tennessee woman’s claims that both her uterine and ovarian cancers could be blamed on talcum powder were rejected by a former St. Louis jury a year prior. Two such cases in New Jersey, where the company is headquartered, were dismissed by a judge who said the plaintiff arguments did not contain ‘reliable evidence’ that could substantially link talc to ovarian cancer.
And in a New Jersey trial, the court there dismissed two lawsuits likewise alleging an existing talc-cancer link before they ever got to trial. It did so on the grounds that the plaintiffs’ medical experts could not offer testimony weighted with hard scientific proof that a direct link between the mineral in talcum powder and ovarian cancer exists.
The First Talc Trial: A Missed Opportunity for Warning Labels?
Could the makers of commercial baby powder products have mitigated their significant legal costs and downturn in public opinion if the company had acquiesced to a warning label on its products from an initial suit brought against it years before?
Could this recent wave of legal battles for Johnson & Johnson have been settled in 2013 when the first case was brought in connection with putting labels on products, thereby limiting the company’s liability?
Interestingly, a woman named Diane Berg, diagnosed with ovarian cancer in 2006, filed suit in South Dakota’s Federal District Court in 2013. Although she was offered a pre-trial $1.3 million settlement, she turned it down, wanting instead to push ahead with a trial to force the company to put warning labels on its talc-based products marketed to women like her. Berg claimed she used Johnson & Johnson powder for 40 years.
Cosmetic products containing talc are banned in the EU, and in Canada are restricted for use in baby products “based on data indicating potential hazards to infants and children.”
In the U.S., the Centers for Disease Control and Prevention does not list any physical or chemical dangers for talc but does note that inhalation should be avoided. And since the 1960s, the American Academy of Pediatrics has warned against using talc-containing baby powder because of risks for aspiration in young children.
Regardless of the regulations at home and abroad, a growing consensus is emerging to remove talc from products that will come into contact with the skin, and move toward another widely available substance.
Cornstarch is that substance. It is widely and increasingly being deemed a safe alternative to talc in a broad range of personal care products, from body and foot powders to makeup and other beauty products. More and more companies are offering this “natural” alternative in the items they bring to market for public use, including Johnson & Johnson.
Are You a Potential Victim of Talcum Powder and Ovarian Cancer?
If you live in Ohio, you can rely on the compassion and expertise of our attorneys at Slater & Zurz, LLP, with offices across the state to serve clients considering the possibility of moving forward with an ovarian cancer talcum powder lawsuit, as well as any other litigation arising from personal injury to you or a loved one. Call us today at 1-888-534-4850 for a telephone consultation or to set up a meeting to discuss your potential case.
We welcome you to visit our website, www.slaterzurz.com, where you will also find valuable information on a range of topical and important legal topics, in addition to our extraordinary team of attorneys who are experts in these types of talc ovarian cancer lawsuits. If you prefer, email us today at [email protected].
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