Johnson & Johnson Talcum Case Creates Litigation Frenzy

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Johnson & Johnson suffered serious defeats totaling $127 million in the first two trials in St. Louis over the alleged link between its talcum baby powder and ovarian cancer, and while J&J is appealing both verdicts, it still faces thousands of similar suits from consumers emboldened by headline-grabbing awards.

The corporation has said it will appeal both verdicts — Monday’s $55 million award and a $72 million award from February. Two more trials are slated for September in New Jersey and St. Louis and as of a month ago, upward of 1,200 similar lawsuits had been filed.

While the pair of big awards will certainly widen some eyes, their true significance has yet to be determined, experts said.

“It’s too early to make too much of these two verdicts,” said veteran defense trial attorney Dane H. Butswinkas of Williams & Connolly LLP. “The damage awards could get reduced or reversed altogether. Or, the cases could settle before any of that happens.”

In the meantime, though, courts in Missouri, Illinois, New Jersey and other states are seeing even more cases pour in as plaintiffs attorneys are emboldened. Jere Beasley of the talc plaintiffs’ firm Beasley Allen estimated that the number of cases is now approaching 2,000. Beasley said his own firm is considering some 11,000 potential talc cases.

J&J declined to comment Tuesday, beyond its statement released Monday night promising an appeal and defending the safety of its product.

“Multiple scientific and regulatory reviews have determined that talc is safe for use in cosmetic products and the labeling on Johnson’s Baby Powder is appropriate,” the company said Monday night. “For over 100 years, Johnson & Johnson has provided consumers with a safe choice for cosmetic powder products and we will continue to work hard to exceed consumer expectations and evolving product preferences.”

Beasley suggested that the two recent verdicts, if they stand up on appeal, could force the company to change its posture and “ultimately start settling the cases.”

“The fact that sophisticated and educated jurors gave that range of damages should get the attention of the marketing people who run the show at Johnson & Johnson,” Beasley said.

Both cases involve women’s use of J&J’s flagship product on their vaginal area. The plaintiffs argue that the talc traveled to their ovaries and accumulated there, causing cancer, and that J&J had long known about this danger but failed to warn consumers.

In the trial that ended Monday, Gloria Ristesund, 62, said she was diagnosed with endometrioid ovarian cancer, affecting the lining of her ovaries, in 2011. She was 57 at the time and survived.

J&J took aim at the science linking talc to ovarian cancer. Talc has been found on ovaries and tumors, but the company argued that doesn’t necessarily prove causation. Furthermore, the company said that talc is so widely used, there’s no certainty that J&J’s baby powder was the source of the talc.

But the plaintiffs were armed with the company’s damning internal documents showing it was aware of the potential risk for decades and repeatedly chose not to warn consumers. Among the internal documents was a fake Monopoly board game apparently making light of the potential link and the possibility of warning labels.

“They can say whatever they want to with their fancy experts when they come up here that testify in litigation all the time,” plaintiffs attorney Allen R. Smith Jr. of the Talc Litigation Group told jurors during closing arguments last week. “This is what they said behind closed doors, when they’re in the house and they don’t think anybody’s listening. A whole different song and dance.”

At the end of a four-week trial, Ristesund’s attorneys declined to suggest an award amount to jurors. They said that the punitive damages ought to be enough to change the company’s behavior and “make them pay” for their conduct. Jurors deliberated for about a day before returning the $55 million verdict, which included $50 million in punitives.

In February, another St. Louis jury that saw similar evidence awarded $10 million in compensatory damages and $62 million in punitives to the estate of Jacqueline Fox, who died in October. The sum vastly exceeded the $5 million in compensatory and $10 million to $15 million in punitives that the plaintiffs in that case had sought, Beasley said.

Talc mining company Imrys Talc America Inc., which supplies the powder to J&J, escaped liability in both cases, though Beasley said he plans to continue including it in future suits because the company didn’t begin officially warning J&J about the alleged cancer link until 2006.

The two large verdicts showed that the evidence, theories and arguments resonated well with jurors, emboldening plaintiffs’ attorneys and showing that these cases are certainly viable.

But it also shows that J&J is going to put up a fight, Williams & Connolly’s Butswinkas said.

“There are some important takeaways,” Butswinkas said. “First, plaintiffs know they can convince a jury to find their way on causation, and second, so far, J&J has sent the message that they will try these cases. Win, lose or draw, that’s an important message. How this all plays out — whether J&J will alter its strategy and whether remaining cases will have similar results — remains to be seen. As they say, predictions are very difficult, especially when they are about the future.”

Russell J. Jackson, an adjunct professor who teaches product liability courses at the Washington University School of Law in St. Louis, said that the publicity surrounding these awards will not only encourage plaintiffs’ attorneys but also draw awareness to the alleged link between talc and ovarian cancer and encourage more women and their families to make the connection and seek representation.

This, paired with evidence that seems to persuade and anger jurors, means that J&J is facing a major threat, even if it develops a more successful trial strategy.

“It seems that even if J&J beefs up its Daubert defenses against general and specific causation, when it loses, those losses are going to be big,” he said. “Thus, even if J&J improves its win-loss ratio, it is still facing huge liabilities. I expect we’ll see some individual and inventory settlements in this litigation designed to forestall additional trials while J&J tries to revise its trial strategy and develop a plan for global resolution.”

For plaintiffs attorneys, this could be the start of a boom.

On Tuesday, Los Angeles plaintiffs’ attorney James A. Morris Jr. of The Morris Law Firm said he’s been following the St. Louis cases closely and is presently reviewing similar talc cases that could eventually evolve into lawsuits against J&J.

He said the talc litigation right now reminds him of the early days of asbestos litigation, when plaintiffs lawyers were intrigued by cases with apparently great potential but puzzled over what to make of it all.

In Morris’ eyes, J&J seems to be staking out an unsustainable position by continuing to adamantly fight the lawsuits while continuing to sell the product without labels warning consumers against vaginal use. The end of this litigation, he said, is nowhere in sight.

“I suspect it would be interesting to have this conversation five years from now,” he said. “There won’t be a resolution anytime soon, but my best guess is that there will be plenty more verdicts between now and then.”

Ristesund is represented by Allen R. Smith Jr. of the Talc Litigation Group and Ted G. Meadows of Beasley Allen Law Firm.

Fox’s estate is represented by Jere L. Beasley, Ted G. Meadows, David P. Dearing and Danielle Ward Mason of Beasley Allen Law Firm, Stephanie Rados, James G. Onder, Michael J. Quillin and W. Wylie Blair of Onder Shelton O’Leary & Peterson LLC, R. Allen Smith Jr. of The Smith Law Firm, and Timothy W. Porter, Patrick C. Malouf and John T. Givens of Porter & Malouf PA.

Johnson & Johnson is represented by Christy D. Jones of Butler Snow LLP.

Imrys Talc America Inc. is represented by Nancy M. Erfle of Gordon & Rees LLP.

The cases are Tiffany Hogans et al. v. Johnson & Johnson, case number 1422-CC09012, and Gloria Ristesund v. Johnson & Johnson, case number 1422-CC09012-01, in the 22nd Judicial Circuit of Missouri.

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Source: Law360