Johnson & Johnson asks Supreme Court to void $2B talc verdict


Category:  News & Politics

Via:  perrie-halpern  •  2 weeks ago  •  8 comments

By:   The Associated Press

Johnson & Johnson asks Supreme Court to void $2B talc verdict
Johnson & Johnson is asking for Supreme Court review of $2 billion verdict in favor of women who claim they developed ovarian cancer from using talc products.

S E E D E D   C O N T E N T

WASHINGTON — Johnson & Johnson is asking for a Supreme Court review of a $2 billion verdict in favor of women who claim they developed ovarian cancer from using the company's talc products.

The case features an array of high-profile attorneys, some in unusual alliances, including former independent counsel Kenneth Starr, who is representing the women who sued Johnson & Johnson. The nation's largest business groups are backing the company, and a justice's father also makes an appearance because of his long association with the trade group for cosmetics and personal care products.

The court could say as soon as Tuesday whether it will get involved.

At the root, Johnson & Johnson argues that the company didn't get a fair shake in a trial in state court in Missouri that resulted in an initial $4.7 billion verdict in favor of 22 women who used talc products and developed ovarian cancer.

A state appeals court cut more than half the money out of the verdict and eliminated two of the plaintiffs, but otherwise upheld the outcome in a trial in which lawyers for both sides presented dueling expert testimony about whether the company's talc products contain asbestos and asbestos-laced talc can cause ovarian cancer.

The jury found for the women on both points, after which Judge Rex M. Burlison wrote that evidence at the trial showed "particularly reprehensible conduct on the part of Defendants."

The evidence, Burlison wrote, included that the company knew there was asbestos in products aimed at mothers and babies, knew of the potential harm and "misrepresented the safety of these products for decades."

Nine of the women have died from ovarian cancer, lawyers for the plaintiffs said

Johnson & Johnson denies that its talc products cause cancer and it called the verdict in the Missouri trial "at odds with decades of independent scientific evaluations confirming Johnson's Baby Powder is safe, is not contaminated by asbestos and does not cause cancer." The company also is the maker of one of three Covid-19 vaccines approved for use in the United States.

Health concerns about talcum powders have prompted thousands of U.S. lawsuits by women who claim asbestos in the powder caused their cancer. Talc is a mineral similar in structure to asbestos, which is known to cause cancer, and they are sometimes obtained from the same mines. The cosmetics industry in 1976 agreed to make sure its talc products do not contain detectable amounts of asbestos.

Last year, a U.S. government-led analysis of 250,000 women found no strong evidence linking baby powder with ovarian cancer in the largest analysis to look at the question, though the study's lead author called the results "very ambiguous."

The findings were called "overall reassuring" in an editorial published with the study in January 2020 in the Journal of the American Medical Association. The study wasn't definitive but more conclusive research probably isn't feasible because a dwindling number of women use powder for personal hygiene, the editorial said.

A few months later, the company announced it would stop selling its iconic talc-based Johnson's Baby Powder in the U.S. and Canada, citing declining demand driven by what it called misinformation about health concerns.

The disputed link between cancer and talc is not really a part of the high court case. Instead, the company said it should have not been forced to defend itself in one trial against claims by women from 12 states, differing backgrounds and with varying histories of using Johnson & Johnson products containing talc.

The $1.6 billion in punitive damages is out of line and should be reduced, the company also argued in a brief that was written by Neal Katyal, a Washington lawyer who aligns with progressive causes and also represents corporate clients. Katyal, who was the acting top Supreme Court lawyer for a time in the Obama administration, declined an on-the-record interview.

The U.S. Chamber of Commerce and trade associations for manufacturers, insurers and the pharmaceutical industry are among the business organizations backing Johnson & Johnson's appeal.

Tiger Joyce, president of the American Tort Reform Association, pointed to how long it took the trial judge to read the jury its instructions as an indication of how unfair the trial was to Johnson & Johnson.

"When a defendant is facing a case where it takes over five hours for the judge to read the jury instructions to the jury, you just have to ask yourself what are we doing here," said Joyce, whose group generally backs limits on liability lawsuits.

Starr said in an interview with The Associated Press that none of Johnson & Johnson's legal arguments is worth the court's time. "As the jury found and as every judge to review this six-week trial record has concluded, Johnson & Johnson's conduct over decades was reprehensible," Starr said.

In addition to Starr, other members of the women's legal team are former Attorney General John Ashcroft and Washington lawyers David Frederick and Tom Goldstein, frequent advocates before the Supreme Court.

Justice Brett Kavanaugh worked for Starr when he investigated the affair between President Bill Clinton and Monica Lewinsky, which led to Clinton's impeachment.

Another name that pops up in some documents in the case is E. Edward Kavanaugh, who was the longtime president of the Cosmetic, Toiletry and Fragrance Association and is the justice's father.

Kavanaugh's group fought efforts to list talc as a carcinogen or attach warning labels to talc products. Kavanaugh is retired and the group now is called the Personal Care Products Council.

Ethicists contacted by the AP said they haven't seen anything that would warrant the justice having to step aside from the case.

Already, one justice almost certainly won't take part. Justice Samuel Alito reported last year that he owned $15,000 to $50,000 in Johnson & Johnson stock. Federal law prohibits judges from sitting on cases in which they have financial interest.

The Associated Press


jrDiscussion - desc
Buzz of the Orient
Professor Principal
1  Buzz of the Orient    2 weeks ago

I'm neither a doctor nor a scientist, but how the hell does talc, usually used to powder babies' bums, cause a problem with something that is deep inside a person's body, unless they shove a tube of it up their ******.  My father's business was reconditioning and selling used burlap, jute and cotton bags, and they had to be cleaned.  My brother and I worked in his factory during school vacations, and both of us cleaned bags that had contained asbestos, and while doing so we breathed in asbestos dust, LOTS of it - we didn't wear masks.  Contrary to all the paranoia about asbestos, neither of us suffered any kind of illness or physical problems from it, and neither of us has any breathing problems - he is 88 and I'm 84.  So go figure. 

Freshman Silent
1.1  bccrane  replied to  Buzz of the Orient @1    2 weeks ago

Being I have been on the receiving end of the asbestosis lawsuits, I seen the medical reports by the "specialists" that the plaintiffs lawyers hired to diagnose asbestosis, almost all of the plaintiffs were chain and heavy smokers.  Granted asbestos is different than fiberglass, it has fiber branches that make it hard to clear from the lungs and therefore forms scar tissues, but scar tissues doesn't mean it will become cancerous.

My grandfather worked for a heating and cooling installer back in the 30's and was the one who coated the pipes with asbestos, he would talk about the bags of asbestos being poured into the mixer and the dust billowing up and the sweet smell of the dust, he did die from lung cancer, but he was a chain smoker and quit for a while when my grandmother was having heart issues, but after she passed he started smoking again and soon after was diagnosed with cancer, so was it the asbestos or all the years smoking?  BTW, he was 88 when he passed.

Paula Bartholomew
PhD Guide
1.2  Paula Bartholomew  replied to  Buzz of the Orient @1    2 weeks ago

Skin absorbs certain things.  That is why parents always told their kids not to touch the mercury from a broken thermometer.

Buzz of the Orient
Professor Principal
1.2.1  Buzz of the Orient  replied to  Paula Bartholomew @1.2    2 weeks ago

My parents never told me that, so I played with the mercury from a broken thermometer, pushing little blobs of it around with my fingers.  In freshman university chemistry class I got mercury on my hands and it turned my gold-plated watch silver.  I freaked out about that and the professor took a piece of chalk and rubbed my watch and turned it gold again.  Maybe I'm actually Superman, since I've survived all those horrible scourges.

Paula Bartholomew
PhD Guide
1.3  Paula Bartholomew  replied to  Buzz of the Orient @1    2 weeks ago

I am glad that neither you or your brother did not get mesothelioma.

Buzz of the Orient
Professor Principal
1.3.1  Buzz of the Orient  replied to  Paula Bartholomew @1.3    2 weeks ago

Thank you, but your comment seems to indicate that we were unusual cases in that we didn't.  

Paula Bartholomew
PhD Guide
1.3.2  Paula Bartholomew  replied to  Buzz of the Orient @1.3.1    2 weeks ago

Just like any disease, people that are at high risk to contract them don't.  I was just saying that you both dodged the proverbial bullet.

PhD Principal
2  Kathleen    2 weeks ago

I never used it because I didn’t want to smell like a baby. 


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