Ovarian cancer is a tough way to die. And in a product liability case engineered by a plaintiff’s attorney to test a novel argument that Johnson & Johnson sells talcum powder contaminated with asbestos, twenty-two women attached to the case face such a prospect. Six, in fact, have already died. And so when the plaintiff’s attorney argued that the company attempted to cover up the fact that perhaps some talcum powder samples sent to independent labs showed the presence of trace amounts of asbestos and therefore the company was aware that their products was dangerous, the jury bought it and brought the hammer down on J&J to the tune of $4.7 billion.
Research has yet to show a link between talcum powder and ovarian cancer. Some studies have indicated a slightly higher correlation between long term baby powder use and ovarian cancer, but considering the vast number of variables involved, no causation. In fact the National Cancer Institute has stated that any connection between reproductive damage and talcum powder is counter to the preponderance of evidence.
Asbestos does cause mesothelioma in the lungs. But does a possible trace amount of asbestos in talcum powder used for feminine hygiene cause ovarian cancer? No properly controlled research conclusively connects the two.
Nevertheless, it has been illegal to sell talcum powder contaminated with asbestos in the United States for decades, and Johnson & Johnson does strive to adhere with the law, hence the constant testing of imported talcum powder for the presence of asbestos. The plaintiff’s attorney argued that there was a conspiracy in Johnson & Johnson to shop around for testing labs that would consistently show no asbestos in its talcum power. But why would Johnson & Johnson attempt to cover up asbestos traces in its own laboratory testing when it would be a trivial exercise for potential plaintiffs to pull its product off the shelf and send it to independent labs for similar testing?
What is clear in the St. Louis city court case is that a carefully crafted narrative caught J&J’s attorneys unprepared, and it has provided impetus to this sort of litigation. Already the firm faces several thousand similar suits, some for asbestos damages, and others for alleged talcum powder toxicity. Legal stunts like this with excessive punitive damages are likely to be overturned on appeal. But it would behoove Johnson & Johnson to treat this threat to its business a little more seriously.