Johnson & Johnson has suffered a major courtroom defeat in the first in a wave of lawsuits claiming that talc products marketed by the company for feminine hygiene use caused ovarian cancer.
A jury in St. Louis late Monday night ordered the health care products giant to pay $72 million in compensatory and punitive damages to the family of Jacqueline Fox of Birmingham, Ala. She died of ovarian cancer in October at the age of 62 after years of using the company’s Baby Powder and Shower to Shower for feminine hygiene.
By a 10-2 vote, jurors found Johnson & Johnson and a subsidiary, Johnson & Johnson Consumer Companies Inc., guilty of negligence, failure to warn and conspiracy to conceal the risks of its products. Jurors awarded $10 million in compensatory damages and tacked on $62 million in punitive damages. The panel absolved the company’s talc supplier, Imerys Talc America Inc., on the identical claims.
The three-week trial in a Missouri state court in St. Louis was the first of about 1,200 ovarian cancer claims filed in the last two years against J&J and Imerys. About 1,000 of the claims are in state and federal courts in the St. Louis area, while another 200 are pending in J&J’s home state of New Jersey. Several more trials are expected later this year.
The verdict sends a “tremendous signal to J&J and all of the cosmetic companies,” said Jere Beasley, one of the Fox lawyers. “They’re basically self-regulated and they know they can just basically get away with anything.”
In an interview with FairWarning, Fox’s son, Marvin Salter, said, “Obviously, the final outcome is something that my mother wanted.” He said, “It really wasn’t about the damages that were awarded,” but creating “awareness around this issue that has been suppressed for so many years by Johnson & Johnson.”
Salter, a mortgage banker in Jacksonville, Fla., described his mother as “one of the kindest, most positive persons you could meet, even during her fight with this disease. … She put others ahead of her needs in many situations, because that’s the type of person she was.”
Carol Goodrich, spokeswoman for J&J, said in a prepared statement: “We have no higher responsibility than the health and safety of consumers, and we are disappointed with the outcome of the trial. We sympathize with the plaintiff’s family but firmly believe the safety of cosmetic talc is supported by decades of scientific evidence.” J&J is expected to seek reversal of the verdict or a reduction in damages through post-trial motions and an appeal.
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J&J and Imerys argued that there is no convincing evidence that talc is a general cause of ovarian cancer, or that it specifically caused Fox’s cancer. They contended that since there is no causal connection, there was no reason to warn of the risks.
About 20,000 U.S. women annually are diagnosed with ovarian cancer, and more than 14,000 die. The disease strikes about one woman in 70. Studies showing a higher rate of ovarian cancer with talc use for genital hygiene have typically found an increased risk of about 35 percent—which would put the odds of getting the disease at about one in 50.
Use of talc powders has been a daily ritual for many women. Johnson & Johnson marketed Shower to Shower with ads that said: “A sprinkle a day keeps odor away…Your body perspires in more places than just under your arms.” In October 2012, for reasons neither company would discuss, J&J sold North American marketing rights for Shower to Shower to Valeant Pharmaceuticals.
As reported by FairWarning, the wave of talc lawsuits were triggered by a mystifying verdict in October 2013 in a case against J&J. A federal court jury in Sioux Falls, S.D., found the company guilty of failure to warn of the risk of ovarian cancer from genital use of its talc products, but awarded zero damages to the plaintiff, Deane Berg. The jury foreperson told FairWarning that the panel wasn’t convinced that talc use caused Berg’s cancer, but believed J&J should have put “something on the product to alert the consumers of the possible injury and the possible risk.”
The case brought a slow-building controversy to a head. Plaintiff lawyers, heartened by a liability finding in arch-conservative South Dakota, began churning out the current wave of ovarian cancer claims.
Talc, the softest of minerals, has a multitude of industrial and consumer product uses, including in the manufacture of paints, paper, rubber, roofing and ceramic materials, and even as a food additive, a filler in capsules and pills and in cosmetics.
Suspicions about talc and ovarian cancer go back decades. In 1971, British researchers analyzed 13 ovarian tumors under a microscope and found talc particles “deeply embedded’’ in 10.
In 1982, the journal Cancer published the first study showing a statistical link between genital talc use and ovarian cancer. The lead author, Dr. Daniel Cramer, a gynecologist and Harvard Medical School professor, recently co-authored a new study that found a 33 percent higher rate of ovarian cancer among women who used talc for feminine hygiene.
The highest risk was for women who used talc powder the longest. Altogether, about 20 epidemiological studies have found increased rates of ovarian cancer for women who reported using talc for hygiene purposes, though other studies have found no association.
At various times over the years, health advocates have called on makers of talc products to warn against using the products for genital hygiene. “Balanced against what are primarily aesthetic reasons for using talc in genital hygiene, the risk benefit decision is not complex,” said one 1999 study. “Appropriate warnings should be provided to women about the potential risks of regular use of talc in the genital area.”
Jurors were shown a 1997 letter in which a J&J consultant attacked statements that there was no statistical association between talc use and ovarian cancer. “Anybody who denies this risks that the talc industry will be perceived by the public like it perceives the cigarette industry: denying the obvious in the face of all evidence to the contrary. This would be a particularly tragic misperception in view of the fact that the industry does have powerful, valid arguments to support its position.’’
October 18, 2017 update: Johnson & Johnson scored a major victory this week when a Missouri appeals court tossed out the $72 million jury award to the family of Jacqueline Fox. Based on the ruling, huge damage awards in three other talc-ovarian cancer cases appear to be in jeopardy, along with more than 1,000 similar claims by non-resident women that are pending in Missouri state court in St. Louis. The appeals court ruling followed a U.S. Supreme Court decision in June that lawsuits must be filed in the jurisdiction where plaintiffs lived or were injured. Fox was from Birmingham, Alabama, and the three other verdicts against J&J also involved out-of-state plaintiffs. .