Appeals Court Tosses $72 Million Award in Johnson & Johnson Talcum Powder Case

Johnson and Johnson (J&J) won a reprieve in the court of law. Reuters reports that a $72 million dollar award to a woman who traced her ovarian cancer to J&J talcum powder was thrown out by a Missouri appeals court. Jacqueline Fox, 62, of Birmingham, Alabama, was one of 65 plaintiffs in a 2015 suit against the pharmaceutical giant and died just months before the St. Louis Circuit Court heard her case. 

The dismissal was the result of a jurisdictional issue. It was not a repudiation of the science, which has been established for decades, behind the multimillion dollar settlement. Only two of the plaintiffs lived in Missouri and the product was not manufactured in Missouri. Previously, this was permitted under a state rule that allowed multiple ovarian cancer talc claims to be combined, provided at least one of the plaintiffs was a St. Louis resident. 

The U.S. Supreme Court undermined this streamlining strategy and left many of the other awards against J&J and other pharmaceutical giants in jeopardy. It was the Supreme Court’s decision in the case Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, et. al. that severely curtailed the jurisdiction of lower courts. 

That high-profile case involved pharmaceutical maker Bristol-Meyers and spared them the expense of paying out to 600 individuals injured by the blood-thinning drug Plavix. The highest court in the land ruled that there had to be some link between the court forum and the specific claims at issue. None of the individuals involved in the Bristol-Myers lawsuit lived in California. The decision was widely seen as a blow against what lawyers for these huge companies characterize as “litigation tourism.” 

There is no doubt the Supreme Court decision and the Missouri reversal is great news for companies that are defending themselves from consumers. The reversal of the J&J talcum powder award is potentially the first of many. Bloomberg reports they are facing more than 1,000 claims in St. Louis alone and 5,500 nationwide. Individual citizens may not have the wherewithal to combat industrial titans, and the combining of lawsuits has cost companies like J&J millions of dollars. 

St. Louis is a frequently chosen forum for lawsuits against pharmaceutical companies and is viewed as a very plaintiff-friendly area. Fox’s talc cancer case was the first of four decided against J&J, totaling $300 million dollars. In California, J&J was ordered to pay $417 million for failing to warn consumers about the cancer risks posed by their talcum powder. This was the largest decision against them to date. Of course it is worth noting that the “beneficiary,” Eva Echeverria, was stricken with ovarian cancer by their product. 

It is not entirely surprising that the Supreme Court ruled in favor of the major moneyed interests of big phama and against plaintiffs injured by their products. A quick perusal of the cases vilified as “litigation tourism” reveals that the defendant is often a drug manufacturer and their product has killed or crippled dozens of plaintiffs. 

Apart from the J&J rulings being put in jeopardy, AbbieVie Inc. is attempting to escape from a decision which awarded $38 million for birth defects caused by their drug Depakote. Bayer AG made an unsuccessful attempt to avoid a case involving their contraceptive Mirena. The 65 plaintiffs in the J&J case isn’t even the largest. In 2014, 91 plaintiffs challenged Pfizer’s over their dangerous anticholesterol drug Lipitor

Clearly what should matter most in these cases is the science. More than 20 studies have linked the use of talcum powder around the genital area to ovarian cancer in women. To make matters worse, J&J was aware of the danger for at least 40 years and has a long history of corporate malfeasance. Their No More Tears baby shampoo contained two potentially cancer-causing chemicals. After several years of pressure from consumer advocates, J&J finally removed these dangerous ingredients from its baby shampoo in 2014.

The average American woman uses 12 personal care products and/or cosmetics a day, containing 168 different chemicals, according to the Environmental Working Group (EWG). While most men use fewer products, they're still exposed to about 85 such chemicals daily, while teens, who use an average of 17 personal care products a day, are exposed to even more. Clearly, such chemical exposures are not insignificant, especially when they occur virtually daily for a lifetime.

When it comes to talcum powder, my recommendation is to avoid it altogether. Also remember that adult women are not the ones most commonly exposed to talc. Most parents generously apply baby talcum powder to their baby's bottom at each diaper change. A safe substitute that can absorb moisture is cornstarch. 
 

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