Baby Powder Litigation: What are we TALCing about?


Recent multi-million dollar plaintiffs' verdicts against Johnson & Johnson in the State of Missouri have provided plaintiffs' attorneys across the nation with a blueprint for establishing a causal link between the development of ovarian cancer and the use of talcum powder by relying on inconclusive scientific studies at trial. The naturally occurring talc mineral is commonly associated with its use in baby powder and is also a common ingredient in many other hygiene and cosmetic products. These recent verdicts are alarming, not only because plaintiffs' attorneys were able to convince a jury of the existence of a causal link without an established consensus within the scientific community, but also because it will expand litigation behind the initial target, Johnson & Johnson.

Studies suggesting a connection between the talc mineral and the development of cancer go as far back as the 1970s, when scientists in Wales discovered talc particles present in ovarian and cervical tumors extracted from women. The conclusions of these studies vary immensely. One recent study found that the use of talcum powder on the genital area promoted an increased risk in women for invasive epithelial ovarian cancer by 44 percent. Another study involving 20,000 women found that talcum powder use was associated with a 24 percent increased risk for ovarian cancer. And yet another study involving 61,576 women found no relationship between talcum powder use and cancer development.

Notwithstanding the inconclusive state of the scientific community, in a few recent cases Plaintiffs' attorneys succeeded in convincing juries that talcum powder more likely than not played a role in the development cancer in their clients. In fact, in Fox v. Johnson & Johnson (case no. 1422-CC09012-01) and in Ristesund et al. v. Johnson & Johnson (case no. 1422-CC09012-01) two juries in St. Louis, Missouri awarded Plaintiffs $72 million and $55 million, respectively against the conglomerate Johnson & Johnson for failing to warn about the potential danger of using its products containing talcum powder.

In both cases the pleadings cherry-picked the most favorable studies (those suggesting the strongest correlation of talcum powder use and cancer development.) Further, in both cases the plaintiffs alleged that Johnson & Johnson had prior knowledge of the possible link between talcum powder and cancer development, and that it failed to properly warn its consumers. Accordingly, plaintiffs argued that Johnson & Johnson should have used a reasonable alternative derived from organic cornstarch because such an alternative is not linked to cancer, at least not yet.

The fundamental issue with these studies is that they rely on the reporting of past behavior and experiences as a control factor. This is problematic because it is difficult for most people to recollect precise details over extended periods of time. Another issue involves an inherent bias of individuals diagnosed with cancer to justify the cause at all costs. The use of a product on or around the area of cancerous development (baby powder is commonly used on the genital areas) is a simple and often satisfying target. Undoubtedly these issues make it challenging, and perhaps impossible to build a consensus in the scientific community that talc is more likely than not a carcinogen.

Regardless of the shaky scientific foundation on which they rely, thanks to these mega-verdict victories it is likely that talc-related cases will begin to crop up in greater numbers across the nation.

Currently, there are approximately 1,200 talc related cases pending in Missouri and New Jersey. Further, two cases were recently filed in Santa Clarita County. Cerna v. Johnson, et al. (Calif. Super Ct., Los Angeles Cty., BC20355) was filed on May 12, 2016, and Trent v. Johnson & Johnson, et al. (Calif. Super Ct. Los Angeles Cty., BC615443) was filed on May 18, 2016. Both cases were filed by the same firm and mimicked the formula of the St. Louis cases in hopes of replicating the same success outside of Missouri. In both cases, the plaintiffs allege they developed ovarian cancer as a result of applying talc-based products to their genital areas.

Further, several plaintiffs with talc-based exposure claims currently pending in California state court are seeking a coordinated docket in order to ensure consistent rulings for future talcum-based exposure cases. Accordingly, while these cases are still in early stages, the outcome could have profound results on the landscape of talc-based product litigation in California.

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