By Roni Cary Rabin, New York Times
An appellate court in Missouri upheld more than $2 billion in damages against Johnson & Johnson, saying the company knew there was asbestos in its baby powder.
A Missouri appeals court on Tuesday ordered Johnson & Johnson and a subsidiary to pay $2.1 billion in damages to women who blamed their ovarian cancers on the company’s talcum products, including its iconic baby powder. The decision slashed by more than half a record award of $4.69 billion in compensatory and punitive damages to the women, which was made in July 2018.
Johnson & Johnson still faces thousands of lawsuits from consumers who claim its talcum products were contaminated with asbestos that caused cancer. The company announced last month that it would stop selling baby powder made from talc in North America, though it would continue to market the product elsewhere in the world.
A spokeswoman said Johnson & Johnson would seek further review of the ruling by the Supreme Court of Missouri and defended its talcum products as safe.
“We continue to believe this was a fundamentally flawed trial, grounded in a faulty presentation of the facts,” Kim Montagnino, the spokeswoman, said. “We remain confident that our talc is safe, asbestos free and does not cause cancer.”
Mark Lanier, the lawyer who represented the plaintiffs, urged consumers to discard any baby powder they had in their homes. Six plaintiffs in the case died before the trial started, and five more women have died since the jury trial ended in 2018, he said. Since this is a civil suit, “all you can do is fine them, and we need to fine them sufficiently that the industry wakes up and takes notice,” Mr. Lanier added.
In its decision, the appellate court noted that the company’s internal memorandums from as far back as the 1960s indicated that its talcum products — referred to as the “golden egg,” “company trust-mark” and “sacred cow” — contained asbestos, and that the mineral could be dangerous. “A reasonable inference from all this evidence is that, motivated by profits, defendants disregarded the safety of consumers despite their knowledge the talc in their products caused ovarian cancer,” the court said.
The plaintiffs “showed clear and convincing evidence defendants engaged in conduct that was outrageous because of evil motive or reckless indifference,” the court said.
The court awarded $500 million in actual damages and $1.62 billion in punitive damages, reducing the original award of $550 million in compensatory damages and $4.14 billion in punitive damages after dismissing claims by some of the plaintiffs.
Johnson & Johnson has argued that faulty testing methods and shoddy science were responsible for findings of asbestos in its products. But thousands of people — mostly women with ovarian cancer — have sued, saying they were never warned of the potential risks.
The main ingredient in baby powder and many other bath powders was talc, a natural mineral known for its softness. Talc also helped lend baby powder its unique fragrance, said to be one of the most recognizable in the world.
In 1980, after consumer advocates raised concerns that talc contained traces of asbestos, an infamous carcinogen, the company developed an alternative powder made from cornstarch.
Though talcum powder has been promoted as soft and gentle enough for babies, and is sold with other infant products in stores, adult women have long been the main purchasers, using baby powder in pubic areas and to prevent chafing between the legs. Many women in hot climates use baby powder to stay dry.
Early lawsuits against the company pointed to talc as a cause of ovarian cancer, though the scientific evidence was not conclusive. In later cases, plaintiffs’ lawyers zeroed in on asbestos contamination as the culprit, saying the carcinogen could cause cancer even in trace amounts.
Talc is used in many cosmetic products, including lipstick, mascara, eye shadow, blush and foundation. Last year, the Food and Drug Administration issued several alerts warning that asbestos had been found in makeup, including eye shadow sold at Claire’s, a retailer popular with teenage girls.
Talc and asbestos are natural minerals, and their underground deposits develop under similar geological conditions. As a result, veins of asbestos may crisscross talc deposits in mines. Indeed, internal memos unearthed during litigation revealed that Johnson & Johnson had been concerned about the possibility of asbestos contamination in its talc for at least 50 years. Asbestos was first linked to ovarian cancer in 1958, and the International Agency for Research on Cancer affirmed it was a cause of the cancer in a 2011 report.
As of March, Johnson & Johnson faced more than 19,000 lawsuits related to talc body powders. So far, the legal record has been mixed, with the company prevailing in some cases and losing in others. It is appealing nearly all of the cases it has lost.
Late last year, Johnson & Johnson recalled 33,000 bottles of baby powder after F.D.A. investigators said they had discovered asbestos in a bottle bought from an online retailer. But the company later said its own tests exonerated the product.
Johnson & Johnson is fending off lawsuits on other fronts as well, most notably ones related to opioids. In August 2019, an Oklahoma judge ruled that the company had oversold the benefits of the drugs while playing down the risks, and ordered Johnson & Johnson to pay $572 million in damages.
In October, in an unrelated case that involved the antipsychotic drug Risperdal, a Philadelphia jury ordered the company to pay $8 billion to a Maryland man who claimed he had been harmed by using the drug.
Johnson & Johnson is one of several companies racing to develop a vaccine to protect against the coronavirus. The company recently announced it would move up the start date for its safety trials in humans to the end of July. Johnson & Johnson has already signed deals with the federal government to create enough manufacturing capacity to make more than a billion doses of a vaccine, once it is found safe and effective.
“At some point there is a reputational question that mass tort cases bring, and they’re going to have to be concerned,” said Carl Tobias, a law professor who teaches about product liability at the University of Richmond in Virginia.“They’ve built their entire reputation on being a family-friendly product producer,” Mr. Tobias said. “The classic example of that is talc, and the injuries these women suffered are severe.”