Last week on Thursday, October 27, multinational conglomerate Johnson & Johnson lost its third consecutive trial with respect to its allegedly-carcinogenic talcum powder products. After three long hours of deliberations, a jury awarded the plaintiff the sizable sum of $70 million, the third such award granted to a plaintiff in these proceedings.
Specifics of the Trial
62-year-old California woman Deborah Giannecchini was heard in a St. Louis courtroom as she recounted her over forty years of using Johnson & Johnson's talcum products. As with many avid female users of the product, she shook some of the talcum powder into her undergarments for the purpose of feminine hygiene. She was diagnosed with ovarian cancer--the primary condition explored in these civil cases--in 2013. According to her attorneys, Giannecchini has an estimated 80 percent chance of dying within two years of this trial despite extensive treatment for her cancer, including radiation and chemotherapy, as well as surgical intervention.
Giannecchini's total hospital bills amounted to around $2.5 million, of which Johnson & Johnson was ordered to pay approximately 90% as compensation for the expense and the attendant pain and suffering. The bulk of the award, an estimated $65 million, was ordered by the court as further punitive damages, which are levied against defendants in situations where the court finds example of gross negligence.
The third party that supplied Johnson & Johnson with the talc that went into the powder products, Imerys Talc America, has also been found liable in the suit, and was ordered to pay punitive damages to the tune of $2.5 million. Both cases were also tried in St. Louis, the district where claims from across the country have been consolidated.
The jury's findings are consistent with two cases that settled earlier this year. The family of 62-year-old Alabama woman Jacqueline Fox was awarded $72 million, followed shortly by the second plaintiff Gloria Ristesund, who received $55 million in total damages.
Why The Lawsuits? A Recap
While I wrote more thoroughly about this in another post, I want to cover the basics of the allegations again:
At this point, roughly 1,700 lawsuits in state and federal courts have been filed against Johnson & Johnson for failing to warn consumers that its baby powder and Shower-to-Shower talc products may cause ovarian cancer.
Talc is a particulate substance made of magnesium, silicon, and oxygen. When applied topically, it is helpful for keeping the user's skin dry and cool. It wicks moisture, and is often scented to add to its market appeal. It has been on the market in one form or another since the turn of the 20th century, and Johnson & Johnson has been in the business since the very start. Talc has stocked many bathroom shelves for over a century, and has been a daily hygiene ritual for the better part of that time. As a method of combating feminine moisture or odor, women in the United States have applied baby powder or Shower-to-Shower talc products to their groin regions for decades.
Again, on the skin these particles are of negligible risk. However, when applied to the groin, talc particles can enter a female user's reproductive system in trace amounts. In small measures, they are unlikely to cause harm, but because the hygiene ritual generally happens once or more daily, more and more particles enter the body. They travel through the user's reproductive organs and deposit in the ovaries. As more uses potentially leads to more talc deposits, the risk of negligibly-carcinogenic substance compounds, inflaming ovarian tissue in a manner similar to how asbestos fibers aggravate lungs.
Only about 50% of women with ovarian cancer survive longer than 5 years after their diagnosis; the disease is tenacious. Survivors often face a significant cost to their quality of life. The cancer negatively affects their ability to have children, since such diagnoses often require the removal of part or all of the reproductive tract. Treatment of the condition also presents significant financial setbacks that can seriously damage the remainder of their days.
Key to these claims is the idea that Johnson & Johnson failed to warn the public of the cancer risk inherent in talcum use. When creating a product designed for public consumption, the generative company is responsible for making that product as safe as it can arguably be. It is implicitly understood that the company will only market a product that is safe for intended use, as well as foreseeable misuse.
If companies are unable to refine certain risks out of a product's use--say, if the ingredients in said products could cause cancer--the manufacturers are obligated to inform the public of those inherent hazards. Failure to provide these warnings is an aspect of negligence, a common cause of action in civil litigation. Warnings are legally required, but more than that, they're just good sense; transparency to one's customer base goes a long way toward fostering consumer confidence and brand loyalty.
Science and History Are on the Plaintiffs' Side.
Despite its losses in court, Johnson & Johnson continues to insist that scientific consensus shows cosmetic talcum products are safe for use. Spokespeople for the company state they are "guided by science, which supports the safety of Johnson's Baby Powder."
This statement, while no doubt carefully engineered to protect the corporation's enormous profit generation from the talcum products, seems contradictory to 30-40 years' worth of medical studies relating talcum use to ovarian cancer. In the early 1970's, for example, scientists examining ovarian tumors through biopsy procedures alleged that they found talcum particles in approximate 75% of the specimens. Similar studies conducted over the following decades suggested that regular talc users (some surveys have estimated that number as 1 out of every 4 American women) are up to three times more likely to develop ovarian or uterine cancer.
Part of the argument against Johnson & Johnson is that the studies' results have been known by the company for decades, and yet it has done virtually nothing with that information. The manufacturer's refusal to recant means that it cannot update its products' warning labels without partially admitting the truth of the hazard. This is where the gross negligence awards are coming from: armed with foreknowledge and information about the risks, and also aware that the public was generally unaware of them, the company chose to develop internal defense strategies to combat cancer allegations and government interference instead of communicating the known issues to talcum users.
A gross negligence claim is one of the most difficult burdens to prove in personal injury law. While negligence is a key component in any personal injury case, gross negligence has to be so beyond the scale of ordinary negligence that is shocks the senses. If your jaw doesn't drop when you hear how irresponsible someone was in causing injury to another, it's likely not gross negligence. I know that ignoring strong evidence over 4 decades that your product causes cancer, allowing thousands of women to develop cancer in the meantime, all to avoid putting a warning label on the product, causes my jaw to drop.
It is only when this high burden has been met that punitive damages can be awarded. That is why, contrary to popular opinion, punitive damages are actually quite rare.
In Defense of the Award Amounts
In the true spirit of the Internet, laymen have been more than willing to offer their scintillating insights about the trial results. It appears that many are of the opinion that the lawsuit's awards are too high, and that the trials themselves are wastes of the legal system's time. Here's a couple of "greatest hits" excerpts--I obscured the personal info, but the comments are presented verbatim:
These opinions, while not in the majority, are still baffling. I mean, it's the Internet, so taking these jokers too seriously is a mistake already, but I admit to some curiosity about which part of ovarian cancer is "Soooooooooooooooooooooooooo Stupid!" Is it:
- The agony of a crippling disease?
- The exhaustive and uncertain treatments?
- The disappointment of learning that a product you trusted and loved for decades may be responsible for your affliction?
- The sick feeling that comes from having unknowingly raised your daughter to use that product?
I'm not entirely certain which part of that should be regarded as "FRIVILOUS [sic]," but no matter which one he meant (yes, he's male), I emphatically disagree.
Moreover, I am not certain how making correct use of the legal system in the pursuit of financial redress should provoke the ironic allegation of "proof of the success of the dumbing of America." While people uninvolved in the proceedings may feel the award far exceeds the damages, it's worth pointing out that this is the third "JURY (who) should BE SHOT!" That's right--three distinct and unbiased groups of people, all privy to far more detailed information and thoughtful rhetoric than anyone on the outside, have elected to award three devastated plaintiffs tens of millions of dollars--partly to restore that which they had lost, but also to strongly admonish Johnson & Johnson for its negligence. That's not frivolity; that's justice.
I know that $72/$55/$70 million awards may seem astronomical to many, but what is the real price of a ruined life? What's "reasonable" or "right" for the remaining 1,697 women still on the docket, awaiting a chance to be made whole? How about for all the women who never learn about the lawsuit and suffer without aid until their last day? Juries--panels of average citizens, chosen as a representative sample of public opinion--are appointed specifically to make these kinds of qualitative judgments where they are necessary. Their verdicts are meant to reflect what we ourselves would do in their place. To cast aspersions on them for holding a company accountable is to indict us all for collective "dumbing." Those judgments also represent only a small fraction of the company's annual profits, which are upwards of $15.4 billion spread across innumerable product sales and subsidiary companies.
To put the matter plainly to those outraged by these verdicts, how much money would a company have to pay to make it right if they knew that their product could cause your grandmother's ovarian cancer, but didn't put a label on it so as not to scare her away from buying it? Would simply refunding her the $1500 dollars she spent on the product over the years strike you as just?
What Does This Mean for Other Talcum Cases?
While Johnson & Johnson has the available resources to continue fighting these claims, disputing the science and appealing the current settlement amounts (it is possible they will be able to reduce the punitive damages in appellate court), the wind of public opinion seems to be very much against them in these matters. Some of that may stem from their increasingly-unsavory reputation these days; a broad cross-section of their medical products and medications currently face public scrutiny for causing injuries.
It is likely that company will soon seek to settle out of court with the remaining plaintiffs, but they may not be able to un-ring this bell. Some plaintiffs may accept a sum considerably more modest than $55 million in order to put the whole ordeal behind them, but given the traction these claims have thus far seen in St. Louis, many of those injured will likely aim to cross the Rubicon and go to trial. This can be a risky move, because it places faith in a jury's decision in one's favor. There is no going back if that decision is not satisfactory, but a personal injury attorney will act according to what the plaintiff elects to do, including taking the claim before a judge and jury.
It is of course every woman's right to decide for herself what to do. Ovarian cancer is devastating, but possible years of courtroom conflict can be draining during a time when some just want to move on from the experience. I have the utmost respect for anyone who feels it "just isn't worth it," but I also humbly disagree. Pursuing financial restitution, itself entirely reasonable, is but one aspect of these lawsuits. More than that, every voice speaking up about the dangers of corporate negligence helps make a wall of sound corporations cannot blithely ignore in the name of profit. I've spoken to many women who've joined the fight not for the money, but for the message, and to safeguard their daughters and granddaughters--and those of other women--from suffering a similar fate.