$72 Million Dollars. $55 Million Dollars. These are verdicts most of us have seen in recent headlines – and we paid attention, too. Why? As Trial lawyers, our ears naturally perk up when we hear about verdicts like these, especially when accompanied by words like ‘punitive damages,' ‘negligence,' and ‘caused cancer.' A question arises in our minds: That Defendant must have done something pretty egregious to warrant a single-plaintiff verdict of that magnitude, right?
Yes. When it comes to Johnson & Johnson (J&J), they did something pretty damn egregious: For over forty years, J&J has put products (talcum powder and baby powder) on the market that they KNEW could increase a woman's risk of developing ovarian cancer; with no warning label, with no cautionary label. In fact, to this day, J&J maintains that cosmetic talc is and has been safe for all purposes. Several juries have recently disagreed – and have awarded sizeable punitive damages to the Plaintiffs.
Who knew what? And when did they know it? Here's a little of what we do know:
Ovarian Cancer & Talc Timeline: 1893 – Present (2016)
- 1893: Johnson & Johnson first develops and markets its talc-based baby powder. Over the next century, J&J aggressively promotes it as a hygienic product for women and babies.
- 1930′s: The first accounts of the harmful effects of talc on human tissue are recorded.
- 1961: A study found that carbon particles similar to talc can migrate from the exterior of women's genitals to a women's ovaries.
- 1971: Researchers discover talc particles on 75% of ovarian tumors they examined.
- 1982: The first epidemiologic study was performed delving into the association between cosmetic talc powder use in the genital area and ovarian cancer. Researchers found that women who used genital talc were more than three times likely to develop ovarian cancer over non-users.
- 1988: Researchers find a dose-response relationship and determined that 52% of ovarian cancer patients ‘regularly' used talc on their genitals.
- 1992: Researchers “determined definitely” that the frequent application of talcum powder to a female's genital area increases the likelihood of developing ovarian cancer.
- 1993: The National Toxicology Program reported that cosmetic talc could cause tumors in animals, despite the lack of asbestos fibers in the talc.
- 1994: The Chairman of the Cancer Prevention Coalition (CPC), wrote to the CEO of J&J, requesting that J&J immediately withdraw talc from the market because of concerns about the development of ovarian cancer; or at a minimum, to label the products with information regarding the talc risks. J&J ignored him.
- 1996: The condom industry ceased the practice of dusting condoms with talc because of concerns about the risk of ovarian cancer for women.
- 1997: A toxicology consultant for J&J warned the company that on three separate occasions that the Cosmetic, Toiletry, and Fragrance Association, which included J&J officials, had released false safety information on talc.
- 2003: Anticancer Research publishes findings from data collected from almost 12,000 women, which led them to conclude that genital talcum powder use causes a 33% increase in ovarian cancer risk.
- 2004: In California, researchers collected at data on nearly 1,400 women and found a 77% increased risk of invasive ovarian cancer among talc users. However, there was no increased risk if the women used cornstarch-based powder products.
- 2006: The World Health Organization classified genital talc use as a possible human carcinogen. Canada classified talc as “very toxic” and “cancer-causing.”
- 2006: Talc supplier, Luzenac, began placing a warning on the talc it supplied to J&J, notifying them that perineal use of talc could cause cancer. As of today, J&J still does not pass on this warning to its consumers.
- 2008: Researchers at Harvard University concluded that weekly genital use of talc by women increases the risk of ovarian cancer by 33%, while daily use increases the risk by 41%.A petition from the CPC called for a cancer warning on cosmetic talc products.
- 2011: Harvard researchers, funded by the National Cancer Institute, studied 4,000 women and again found a dose-response relationship between use of talc on the genitals and ovarian cancer. The study revealed a 200% to 300% increased risk of cancer from perineum talc use.
- October 2013: A jury in a South Dakota Federal Court renders a verdict in favor of Deanne Berg, and unanimously finds that Johnson & Johnson was negligent in failing to warn consumers of the ovarian cancer risks associated with use of its talcum and baby powder products. The Judge also found the conduct of J&J rose to the level of malice and warranted consideration of punitive damages. Even though she was awarded no monetary damages, Berg's case was the catalyst for ovarian cancer/talc litigation, as hers was the first suit to allege that asbestos-free talcum powder could cause ovarian cancer. Berg applied J&J's ‘Shower to Shower' talcum powder to her genital area from 1975 to 2007. She was diagnosed with ovarian cancer in December 2006, at the age of 49.
- February 2016: A jury in a St. Louis Circuit Court found Johnson & Johnson liable for failure to warn, negligence and conspiracy, and agreed that Plaintiff Jacqueline Fox's ovarian cancer was caused by her 35-year use of J&J talc-containing products for feminine hygiene. Ms. Fox passed away shortly before the trial began, at age 62. The jury awarded the family of Ms. Fox $72 million: $10 million in actual damages and $62 million in punitive damages.
- May 2, 2016: A second jury in a St. Louis Circuit Court found Johnson & Johnson liable for injuries resulting from Plaintiff Gloria Ristesund's 40-year use of its talc-containing products for feminine hygiene. The jury agreed the products contributed to the development of her ovarian cancer and awarded $55 million: $5 million in actual damages and $50 million in punitive damages. Ms. Ristesund, 62, was diagnosed with ovarian cancer in 2011.
Let's admit: We (Plaintiff's lawyers) get our jollies from hearing about these big verdicts; and we get excited about the possibility of a new type of litigation. But, we also derive immense satisfaction knowing that another Big Bad Company (BBC) has been held accountable for some injury or harm that they have inflicted on someone or on a class of persons. If you've practiced mass tort litigation, when you hear about verdicts like these, you, like me, know that the BBC has probably been engaged in some sort of egregious and harmful misconduct for many years. Armed with massive legal defense teams and virtually unlimited budgets, these BBC's have been able to dodge the legal ramifications of the harm they have caused by taking advantage of, and sometimes even creating, loopholes in our justice system.
As a female Plaintiff's lawyer, I can absolutely relate to and empathize with women who, through no misconduct of their own, have developed a cancer that has invaded their most private of parts. A cancer that forces them to endure painful and debilitating surgeries (hysterectomies and similar procedures) that take away from them one of the most sacred things a women holds — her ability to have children. Preventable cancer is something that no one should have to endure, ever. None of us can help the genes we were born with, or the health problems we've inherited, nor are we immune to all of the natural dangers presented to us as a result of the environment we live in – but when those harms and dangers can be prevented, they must be prevented. I aspire to be a voice for these women – not just in the courtroom, but as an advocate against all BBC's who should be held accountable for their deceptive and deplorable malversation.
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