Earlier this year, a pair of Missouri state juries awarded damages totaling $127 million to plaintiffs who claimed long-term use of Johnson & Johnson baby powder containing talc caused ovarian cancer. The New Jersey-based health giant, valued at $70 billion, has vowed to appeal the awards, but with 1,200 additional baby powder–related suits pending, Johnson & Johnson’s mass tort litigation appears to be just beginning.
Fordham Law professors Benjamin Zipursky and Michael M. Martin expressed initial surprise that the juries provided claimants such large awards in cases that appeared to involve relatively weak statistical evidence that baby powder use increases the risk of ovarian cancer by 30–40%. Now, according to Professor Howard Erichson, Johnson & Johnson has to decide if time is on its side: Will science weaken plaintiffs’ claims or strengthen them, and should the company attempt to resolve these cases by settlement even as the science moves forward?
Johnson & Johnson’s baby powder earned $374 million in 2014—a fraction of the corporation’s overall revenues, according to industry figures—but is widely considered the brand’s most ubiquitous household item, marketed as a feminine hygienic for more than a century.
So far, only three jury trials have reached verdicts since the first baby powder suit was filed in 2009: the two in Missouri this year plus one in South Dakota 2013 in which the jury found Johnson & Johnson negligent but did not award the claimant a monetary award. This February, a St. Louis jury awarded the family of an Alabama woman who died from ovarian cancer $72 million in damages. Just three months later, another St. Louis jury awarded an ovarian cancer survivor from South Dakota $55 million. In both cases, the monetary awards were predominantly composed of punitive damages against Johnson & Johnson.
“At this stage, we don’t know whether this litigation will end up looking more like tobacco and asbestos or more like Bendectin and breast implants,” Erichson said, adding the three jury rulings must be “terrifying” for Johnson & Johnson nonetheless. “We don’t know at this stage if the scientific evidence will get stronger or weaker for the plaintiffs.”
Tobacco and asbestos became the subject of decades-long tort litigation as scientific discoveries illuminated the risk that those products posed. By contrast, Erichson noted, scientific work eventually undermined plaintiffs’ claims in cases involving Bendectin, the once-popular morning sickness pill, and cases involving breast implants.
Weak Evidence
Both Zipursky and Martin observed that the plaintiffs’ product liability suits against Johnson & Johnson performed much better in 2016 than they would have expected.
Martin noted the general-causation evidence that talcum powder could cause cancer, and the evidence that it caused the cancers in these specific cases, appeared “really weak.” While some studies have shown talcum powder may cause cancer, the lack of studies showing it increases the cancer risk enough to satisfy an “appropriate standard for causation” initially puzzled Martin and Zipursky. Also puzzling was the argument that Johnson & Johnson was negligent for not warning consumers about a defective product, Zipursky added, given what appeared to be the weakness of the scientific claim.
“On initially looking at the statistics, I was surprised not to see some successful motions from Johnson & Johnson arguing that this case can’t go to trial,” Zipursky said. On closer inspection, he added, the plaintiffs’ key expert witness provided a more fine-grained reading of the statistics that rendered plaintiffs’ claims substantially stronger.
Johnson & Johnson has decried studies linking talcum powder to cancer as flawed while pointing to studies that absolve its product. Zipursky highlighted that the American Cancer Society’s website had taken a very tepid position on the risks of talcum powder: “For any individual woman, if there is an increased risk, the overall increase is likely to very be small. Still, talc is widely used in many products, so it is important to determine if the increased risk is real. Research in this area continues.”
As a tort law matter, Erichson views whether Johnson & Johnson should be considered a defective product as a major question litigation should strive to answer. The professor also questioned whether, if a warning was warranted, instructions should notify consumers that the product is safe in some areas of the body but not others.
Too many product warnings could produce unintended consequences though. Failure-to-warn litigation has spurred manufacturers to provide such an overabundance of warnings that consumers might stop paying attention to them, Erichson said.
To Settle or Not to Settle
Johnson & Johnson’s ongoing mass tort litigation harkens back to the mid-20th century when household items, not pharmaceuticals, formed the most common basis for product liability lawsuits, Zipursky explained. Many of those cases involved a single incident rather than the thousands of incidents that form the basis of the Johnson & Johnson litigation.
The market for lawyers in tort litigation changed with asbestos and to a greater extent tobacco, which resulted in hundreds of billions in damages as science showed more comprehensive links between smoking and lung cancer. Lawyers saw product liability on a massive model. Pharmaceutical litigation has assumed the mass tort mantle over the past two decades.
Plaintiffs allege the talcum powder used over decades acted as a cancer-causing agent when talc particles migrate to the fallopian tubes. Experts for the plaintiffs have, thus far, convinced juries that the appearance of pieces of talc in the tubes is proof that cancer derived from the mineral.
Even in the face of scientific uncertainty, Erichson noted, the judicial system must find a way to resolve the pending lawsuits. “When litigation involves so many claims that raise common questions, individual adjudication for each and every claimant would be terribly inefficient,” he said. “Therefore, whether by adjudication or settlement, eventually we need some form of collective resolution.”
If Johnson & Johnson decides to pursue settlement, Erichson added, the cost of settlement will likely depend on the jury verdicts in the individual trials up to the time the settlement is negotiated. To drive down a potential settlement, Johnson & Johnson must string together jury victories such as the ones Merck achieved prior to its global Vioxx settlement, Erichson noted.
Johnson & Johnson’s most likely option then would be to resolve the cases wholesale, Erichson said. The corporation can do this one of three ways: negotiate a global settlement in which individual claimants may submit claims akin to the Vioxx settlement; create a settlement program like BP did following the Deepwater Horizon oil spill; or pursue a class-action settlement such as the NFL used in its concussion litigation.
In the meantime, the eyes of thousands of plaintiffs and millions more consumers, plus tort law scholars, will continue to focus on a Johnson & Johnson product that once was considered benign.
“One-off tort cases are always important to the parties involved, but this is much bigger,” Erichson said. “The early trials in talc powder litigation are not only about the individual plaintiffs. They’re about the entire picture of mass litigation and ubiquitous consumer products.”
