When news spread that Johnson & Johnson baby powder and other talc-based products contained trace amounts of asbestos, many plaintiff’s lawyers viewed it as a panacea. Similar to the breast implant litigation of the 1990s, the existence of asbestos in a widely-used consumer product – and the fact that Johnson & Johnson and other companies had allegedly hidden its existence for decades – appeared poised to spawn class action lawsuits and multi-district litigation around the country. As the lawsuits began to roll in, Reuters fanned the flames with an article titled, “Johnson & Johnson Knew for Decades that Asbestos Lurked in its Baby Powder,” and Johnson & Johnson’s stock promptly plummeted in value by $41 billion.

But, the lawsuits and Reuters’ article suffer from one major and unifying flaw: The science isn’t there. Even assuming that Johnson & Johnson baby powder contains trace amounts of asbestos and even assuming the company knows about it (an allegation which it has vehemently denied), the scientific evidence simply does not support the proposition that talc-based products contain sufficient levels of asbestos to cause mesothelioma.

Mesothelioma from Baby Powder: The Science Isn't There

As of approximately six months ago, Reuters reported that Johnson & Johnson was facing more than 10,000 lawsuits related to its talc-containing baby powder. While most of these lawsuits involve allegations that talc causes ovarian cancer (which is a separate matter entirely, and which also lacks in scientific basis), a significant portion involve claims related to mesothelioma. Although juries have awarded millions of dollars to mesothelioma patients who claimed that their condition resulted from the use of Johnson & Johnson’s baby powder (including $116 and $25.7 million verdicts in April 2018 and May 2018, respectively), Johnson & Johnson has appealed these awards; and, based on the science, the company appears to be on strong legal ground.

In fact, the current wave of litigation appears to be much ado about nothing – once again similar to the 1990s breast implant litigation. After the thousands of cases were filed across the country, many of them successful, it ultimately came to light that the plaintiffs’ breast implants did not put them at heightened risk for the various medical conditions they had contracted. Studies from the American Academy of Neurology, the National Cancer Institute, and other organizations reached the same conclusion; and, after banning silicon breast implants as a result of the litigation, the Food and Drug Administration (FDA) eventually lifted the ban in 2006. As written in an article in the AMA Journal of Ethics:

“The silicone breast implant litigation of the nineties is notable for way in which judges and juries overlooked an astonishing lack of scientific evidence, while plaintiffs and their attorneys raked in millions.” But, even so, “[t]he hysteria and hype that the lawsuits generated caused some medical device companies to go bankrupt or leave the implant market altogether.”

In the current wave of litigation, the argument being put forth by the plaintiffs’ bar is that talc powder contains asbestos, and that anyone who contracts mesothelioma after using talc powder must necessarily be suffering as a result of this exposure in the absence of a countervailing explanation. But, while it may be true that some talc powder contains asbestos (due to being mined from areas where asbestos is present): (i) this is not universally the case; (ii) the trace amounts of asbestos alleged to be present are not sufficient to cause mesothelioma; and, (ii) there are in fact several other explanations for why someone may contract mesothelioma. Among them, just as it is possible for a person who has a pre-existing condition to contract lung cancer without smoking, it is possible to contract mesothelioma without being exposed to asbestos. Furthermore, while people tend to think that touching or breathing asbestos fibers can be deadly, the reality is that these fibers are in the air around us all the time, and it takes a much more-significant level of exposure to become at risk for mesothelioma.

Plaintiffs' Attorneys are Banking on Jurors' Emotions, Not Science

If the science does not support a link between talc powder and mesothelioma, why have some plaintiffs’ attorneys succeeded in winning multi-million-dollar verdicts? So far, the answer seems to be surprisingly simple: Saying that a global company’s baby powder caused someone’s life-threatening cancer paints a compelling picture for the jury. Jurors tend to be sympathetic to sick plaintiffs, especially in cases of David versus Goliath, and it feels good to punish a company that has the financial resources to compensate its supposed victims. But, as the science (or lack thereof) continues to make its way into the sunlight, sooner or later judges at the trial and appellate levels will have little choice but to step in and ensure that plaintiffs’ attorneys cannot continue to siphon funds from innocent corporations by playing to jurors’ emotions.

Johnson & Johnson Isn't the Only Company Facing Potential Exposure

Critically, while Johnson & Johnson has endured the vast majority of the financial and reputational harm to date, it is far from the only company at risk for suffering catastrophic losses in talc powder-mesothelioma litigation. Plaintiffs’ attorneys are targeting companies at all levels of the chain of distribution, from suppliers to retailers, and they are targeting Johnson & Johnson’s competitors as well. While talc suppliers may face liability initially, if these companies are forced into bankruptcy, manufacturers will be next in line, and then retailers may ultimately be the ones left holding the bag. Although this may be a theoretical worst-case scenario, it is not necessarily far-fetched, and at least one major talc supplier has already gone out of business as a result of incurring unsustainable judgment debt.

About Goodell DeVries

Goodell DeVries is a team of more than 60 attorneys who represent companies nationwide in products liability and toxic exposure litigation. Our attorneys are currently representing companies that use talc in cosmetic and pharmaceutical products in litigation involving allegations that their talc causes mesothelioma. For more information, or to discuss your company’s litigation needs in confidence, you can contact attorney Jeff Hines directly at (410) 783-4041 or jjh@gdldlaw.com.