What does a company do when the product upon which its brand is built is linked to cancer? At one point the tobacco industry faced this same question and for years they were, one might say, somewhat less than forthcoming. Healthcare giant Johnson & Johnson now faces that same question and their answer, as well as the speed of its delivery, will undoubtedly have long lasting consequences for “the baby company.”
The question and its answer arise from three recent talcum powder lawsuit verdicts that have delivered a collective $195 million dollar bill to Johnson & Johnson in just the past 8 months.
All of the suits claim that Johnson & Johnson Baby Powder and Shower to Shower products (commonly made from talcum powder, though a safe product using corn starch is also sold) increase the risk of ovarian cancer, a particularly deadly form of cancer, and that Johnson & Johnson has been aware of this danger for years, but failed to warn consumers.
With approximately 2,000 talcum powder lawsuits filed in state courts, there appears to be no end to the financial punishment in sight. But Johnson & Johnson continues to deny—at least publicly—that there is anything wrong with its talcum products, which have served as the cornerstone of its reputation for over 100 years.
The St. Louis Talcum Powder Trials
The legal firestorm threatening Johnson & Johnson stems primarily from a single talcum powder lawsuit that was filed in St. Louis on May 23, 2014. As explained in a recent Bloomberg report, St. Louis has become a “hot spot” for product liability lawsuits against big companies due to a provision in Missouri law that allows residents from other states to combine their claims with those of Missouri citizens. As long as one of the plaintiffs resides in Missouri and one in the defendant’s home state, dozens of claims from multiple states can be combined.
In the St. Louis case (Hogans v. Johnson & Johnson, 1422-CC09012-01, Circuit Court, St. Louis City, Missouri (St. Louis)), Tiffany Hogans, of Missouri, and 64 other plaintiffs from 28 states filed suit against J & J. The cases of three of those plaintiffs have now resulted in talcum powder lawsuit verdicts totaling $195 million in damages.
The first case to go to trial in Missouri was that of Jacqueline (Jackie) Fox, a Birmingham, Alabama woman who died of ovarian cancer before the trial began. According to a Washington Post story, jurors were swayed by internal company documents introduced at trial showing Johnson & Johnson was aware of the talcum powder-ovarian cancer link. A memo from a company medical consultant suggested that denying that link was like denying the association between smoking cigarettes and cancer. A pathologist testified that talc particles found in Fox’s ovaries had inflamed them, leading to cancer. Jurors may also have been influenced by trial documents indicating that the company planned to increase usage among African Americans and Hispanics to compensate for declining sales. Ms. Fox was black.
On February 22, 2016, the jury awarded $72 million to Fox’s family—$10 million in compensatory damages and $62 million in punitive damages.
In the second of the talcum powder lawsuit verdicts reached in St. Louis, the jury deliberated only eight hours before ordering Johnson and Johnson to pay $55 million ($5 million in compensatory damages and $50 million in punitive damages to a South Dakota woman, Gloria Ristesund. Ristesund was diagnosed with ovarian cancer in 2011, after using Johnson & Johnson’s talcum powder products for almost 40 years.
It took a jury even less time to reach the third and most recent verdict, which was delivered on October 27, 2016. After three hours of deliberation, the jurors found in favor of plaintiff Deborah Giannecchini, awarding her $70 million, including $65 million in punitive damages. Giannecchini was diagnosed with ovarian cancer in 2012. After undergoing surgery, radiation and chemotherapy, she still has an 80% chance of dying within the next two years. Internal company documents presented during the trial suggested that Johnson & Johnson was aware of the extensive research linking talcum powder and ovarian cancer, but rather than warn consumers, company executives discussed ways to prevent the scientific evidence from affecting profits.
“… anybody who denies [the] risks” [between hygienic talc use and ovarian cancer] is “denying the obvious in the face of all evidence to the contrary.”
Multidistrict Litigation – The Federal Talcum Powder Lawsuits
On October 4, 2016, the federal Judicial Panel on Multidistrict Litigation transferred ten federal talcum powder lawsuit cases to United States District Court Judge for the District of New Jersey, Freda L. Wolfson. Effective October 17, 2016, more than thirty other federal cases in multiple states were also transferred to Judge Wolfson’s court.
Protecting the Johnson & Johnson Brand
In 2016, Fortune magazine ranked Johnson & Johnson as the fifteenth most admired company in the world. While that ranking is down from 2015’s ranking of 11, it is still noteworthy and it rests to a considerable degree on baby powder, which has been an iconic company product since 1894. In a recent story on Johnson & Johnson’s legal troubles, Reuters reporter Brendan Pierson noted that the company’s line of baby care products brings in $2 billion a year and Johnson & Johnson’s Baby Powder is a “recognized symbol” of that line. In his 2004 book, The 18 Immutable Laws of Corporate Reputation, Ronald Alsop quotes J & J’s former corporate VP of advertising Andrea Alstrup: “We are, and always will be, first and foremost, known as ‘the baby company.’”
Being known as “the baby company” is something that Johnson & Johnson undoubtedly wants to preserve. Replacing it with a negative tie to cancer would clearly be damaging. To prevent that from happening, plaintiffs say, Johnson & Johnson has for decades denied the scientific evidence.
In 1993, the United States National Toxicology Program (an interagency program under the U.S. Department of Health and Human Services) published a study that found “clear evidence” of carcinogenic activity associated with talc. In a recent (September 7, 2016) talcum powder lawsuit, plaintiff Shintelle Joseph alleges that Johnson and Johnson’s response to the USNTP study was to join a task force formed not to warn consumers, but to prevent government regulation of the talc industry.
According to Ms. Joseph’s complaint, the purpose of the group was to prevent government regulation of the talc industry. The task force, according to her allegations, created biased research, edited reports prepared for governmental agencies by task force scientists, and “knowingly released false information about the safety of talc to the consuming public.”
Johnson & Johnson After the Talcum Powder Lawsuit Verdicts
Johnson & Johnson is a multi-billion-dollar company. It earned $70 billion worldwide in 2015. Several of its products, including power morcellator surgical devices, antipsychotic Risperdal, blood thinner Xarelto, and hip implants are the targets of thousands of lawsuits.
Johnson & Johnson may choose to fight on, or it may ultimately decide to settle. Regardless, it is clear that plaintiffs will continue to prosecute their claims in all applicable jurisdictions where a talcum powder cancer case is filed.