The $72 Million Talc Verdict Against J&J May Not Set a Precedent

Photograph by Nancy R. Cohen — Getty Images

The $72 million verdict this week against Johnson & Johnson in a U.S. case alleging links between talc-based powder and ovarian cancer has prompted global headlines, social media buzz and calls to lawyers from would-be plaintiffs.

But the attention-grabbing judgment is no guarantee future plaintiffs will be able to convince juries the company’s products caused their illnesses.

About 1,200 similar cases are pending, primarily in Missouri and New Jersey state courts, but the facts are different in every one.

And even in cases with similar evidence and expert testimony, juries in mass personal-injury litigation can come to different conclusions.

While the survivors of Jacqueline Fox were awarded $72 million by a St. Louis jury Monday, jurors in a federal court action in South Dakota—the only other talc case to go to trial—found in 2013 that J&J (JNJ) had been negligent but declined to award damages to plaintiff Deane Berg.

Like Fox, Berg alleged her ovarian cancer was caused by her decades-long use of J&J’s talc-powder products for feminine hygiene, and jurors in both cases heard testimony about studies linking talc to cancer risks.

But, unlike Fox, who passed away several months before the trial began, Berg was in remission at the time of the trial, according to court documents.

In addition to factual differences among cases, venue can affect outcomes. Some state courts are considered more plaintiff-friendly than federal courts, which have stricter rules for the admission of evidence and expert testimony, said lawyers involved in the litigation.

One juror in the Missouri case, Jerome Kendrick, said in an interview with Reuters that he and other jurors were especially swayed by testimony from plaintiffs’ medical experts and documents showing J&J employees discussing talc powder’s possible cancer risk.

“The problem I had is that, according to inter office documents, J&J was aware of the potential concerns,” Kendrick said. “And it really looked like instead of trying to investigate, they started talking about how to combat what would eventually be a court case.”

J&J has said that “decades of sound science” prove that talc is safe. The company on Tuesday issued a statement expressing sympathy for Fox’s family but disagreeing with the verdict. It also said it is exploring its post-trial options.

Under the Radar

Talc litigation got its start in 2009, when Berg filed her lawsuit. The Fox lawsuit was selected by plaintiffs’ lawyers as the first to go to trial in Missouri, to serve as an early bellwether of how similar cases in that venue might fare.

The litigation flew largely under the public’s radar until jurors returned the award for the family of Fox, who died in October at 62. The plaintiffs said Fox used J&J Baby Powder and Shower to Shower Powder for feminine hygiene daily for 35 years before she was diagnosed three years ago with ovarian cancer.

It has resonated with the public far more than the Berg case, which “didn’t get headlines because they didn’t award any damages,” said R. Allen Smith, a Missouri-based lawyer who represented both the Fox family and Berg.

More cases may be filed soon, and lawyers at several plaintiffs’ firms who worked on the Fox case said they are investigating thousands of additional claims.

Still, the talc cases represent a relatively small portion of the tens of thousands of lawsuits J&J is facing over its many products. For instance, it is the target of more than 44,000 cases from women who say they were harmed by pelvic mesh devices made by its Ethicon unit, and more than 8,000 against its DePuy subsidiary regarding Pinnacle metal-on-metal hip systems.

The next J&J talc trial is set for April in St. Louis, and additional trial dates have been set for later this year.

To be successful, plaintiffs must make both a general link between talc and ovarian cancer and show that J&J’s products—as opposed to something else—are to blame for their cancer.

In spite of the increased interest in the litigation following the Fox verdict, attorney Danielle Mason of Beasley Allen, who was part of the team representing the Fox family at trial, said she expected J&J to fight hard to defend itself in upcoming trials. “We’re in this for the long haul,” she said.

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