By Myron Levin
A Los Angeles jury has ordered Johnson & Johnson to pay damages of $417 million to a 62-year-old woman who blamed her ovarian cancer on years of using the company’s baby powder for feminine hygiene.
It was the first California trial in the mushrooming legal battle over links between genital use of talc and ovarian cancer, and the award against J&J was by far the largest so far. Of five previous cases–all tried in Missouri state court in St. Louis–J&J lost four, with combined damage awards of about $305 million.
Capping a four-week trial in Los Angeles Superior Court, the jury voted 9-3 to award $70 million in compensatory damages and $347 million in punitive damages to Eva Echeverria. The jury found J&J and a subsidiary, Johnson & Johnson Consumer Cos., Inc., guilty of negligence for failing to warn consumers that genital use of talc powders could raise the risk of ovarian cancer.
That no warnings were given was undisputed. To win the case, Echeverria had to establish both general causation–that talc can cause ovarian cancer–and that talc exposure was “a substantial factor” in her contracting the disease.
In a statement issued after the verdict, J&J spokeswoman Carol Goodrich said that ovarian cancer “is a devastating diagnosis and we deeply sympathize with the women and families impacted by this disease. We will appeal today’s verdict because we are guided by the science, which supports the safety of Johnson’s Baby Powder,” she said. “We are preparing for additional trials in the U.S. and we will continue to defend the safety of Johnson’s Baby Powder.’’
Echeverria’s lawsuit had also named J&J’s talc supplier, Imerys Talc America, Inc., but Judge Maren E. Nelson dismissed claims against Imerys prior to trial.
In all, J&J faces about 6,000 ovarian cancer claims, including more than 700 in California, by women who used its baby powder and another talc product, Shower to Shower. Today’s verdict was the third-largest jury award in the U.S. so far in 2017, according to data compiled by Bloomberg.
Echeverria was diagnosed with cancer in 2007. According to evidence in the case, she had used Johnson’s Baby Powder for genital hygiene many thousands of times, starting at age 11 and continuing on a regular basis for more than 40 years–not stopping until 2016, when she saw a TV report about possible links between talc and ovarian cancer.
She has endured more than 100 rounds of chemotherapy and experimental treatments with painful side effects, and the cancer has spread to other organs. In a videotaped deposition played for jurors, Echeverria wept as she discussed her love for her daughter and grandson and her fear of dying.
Talc, the softest of minerals, has a multitude of industrial and consumer uses, including as an ingredient in paints, paper, rubber, roofing and ceramic materials. It has been used as a food additive, in chewing gum, as a filler in capsules, pills and cosmetics–and is even injected into the chest cavity in a medical treatment called pleurodesis.
But, as FairWarning has reported, suspicions about talc and ovarian cancer go back decades. In 1982, the journal Cancer published the first study showing a statistical link between genital talc use and the disease. Since then about two dozen more epidemiological studies have found a small increased risk for ovarian cancer for women who reported using talc for feminine hygiene. Two studies cited by Echeverria’s lawyers estimated that talc powders could be the cause of up to 10 percent of ovarian cancer cases. One study in 1999 concluded: “Balanced against what are primarily aesthetic reasons for using talc in gen hygiene, the risk benefit decision is not complex. Appropriate warnings should be provided to women about the potential risks of regular use of talc in the genital area.”
This year, about 22,440 women will be diagnosed with ovarian cancer, according to the American Cancer Society, and about 14,080 will die of the disease. Ovarian cancer strikes about one woman in 70. Studies showing a higher risk with genital talc use have typically put the increased risk at about 30 percent. That would raise the odds of getting the disease to roughly one in 50.
Plaintiff lawyers and experts said research has shown that talc can pass through the genital tract to the ovaries and cause an inflammatory response that leads to cancer. They cited internal documents that they said showed J&J was long aware of the risk, including a 1975 memo that referred to the ”talc ovary problem.” There was “overwhelming evidence that they needed to warn and that their product was dangerous,” Allen Smith, one of the lawyers, told jurors. He pointed out that Walmart and Dollar Tree recently put warnings on their store brand talc powders that genital use could increase the risk of ovarian cancer.
But in closing arguments this week, Smith said that J&J’s refusal showed it had placed “corporate image over human life.”
J&J lawyers countered that no warning was needed because talc is perfectly safe. They said the type of studies implicating talc powder–called retrospective studies– are vulnerable to a bias that can explain the weak statistical association between talc use and cancer. In such studies, two groups–ovarian cancer victims and healthy women–are asked to look back and identify past exposures and habits. Cancer victims are more likely than healthy women to remember their use of talc, the defense argued. In contrast, they said, prospective studies–which track health status and lifestyle habits over many years–do not show a statistical link between talc and ovarian cancer. These studies, they said, are the ”gold standard” and more reliable than the studies incriminating talc.
Ticking off a list of public health and scientific agencies, J&J attorney Bart Williams told jurors in closing arguments last week that no scientific organization had declared genital use of talc to be a proven or probable cause of ovarian cancer. The one that came closest, the International Agency for Research on Cancer, in 2006 classified talc as “possibly carcinogenic to humans”– a category that Williams said includes such things as aloe vera and pickled vegetables.
He also said Echeverria had well-established risk factors for ovarian cancer, including obesity and a family history of cancer.
Although J&J suffered big defeats in 4 of 5 previous St. Louis cases, those verdicts could be upended, along with at least 2,000 other claims filed there, because of a U.S. Supreme Court ruling in June in an unrelated case involving drug maker Bristol Myers Squibb. The ruling held that plaintiffs must file their cases where they suffered their injury, a decision seen as putting the brakes on the tactic known as forum shopping. The vast majority of claims in St. Louis were filed on behalf of ovarian cancer sufferers from out of state. Plaintiff and J&J lawyers are battling over whether the huge verdicts will remain intact and whether the St. Louis court will retain jurisdiction over the other cases.
The flood of cases was triggered by a head-scratching verdict in 2013 in a first-of-its-kind talc lawsuit. Ovarian cancer victim Deane Berg filed the case in federal court in her hometown of Sioux Falls, S.D.. The jury found that J&J was liable for failure to warn but Berg, whose cancer was in remission, was awarded zero damages. Still, the liability finding in arch-conservative South Dakota emboldened plaintiff lawyers to begin filing similar lawsuits.
Trial coverage was streamed courtesy of the Courtroom View Network, http://cvn.com/
This story was produced by FairWarning (www.fairwarning.org), a nonprofit news organization that focuses on public health, consumer and environmental issues.