J&J’s surprise settling of talc-cancer suit could usher in more litigation
J&J isn’t known for quickly settling cases, so resolving three in close proximity may indicate executives and lawyers are looking at the talc cases differently, a law professor suggests
Wilmington/Detroit/Oklahoma City — Johnson & Johnson (J&J) took the unusual step of settling three women’s claims that its talc-based products caused their asbestos-linked cancers rather than let juries decide the cases, potentially opening a new front in the growing litigation against the world’s largest maker of healthcare products.
Jurors in state court in Oklahoma City on Wednesday spent about three hours weighing up whether J&J’s baby powder was a factor in a 77-year-old woman’s development of peritoneal mesothelioma, when a judge announced the two sides had come to a deal. Details of the accord weren’t made public.
On the same day, J&J also reached a confidential settlement that cut short a trial in Los Angeles over a 36-year-old’s claims that products she had used since childhood led to her mesothelioma, an asbestos-linked cancer, and resolved a similar New York case slated for trial in April.
Unlike some pharma companies, J&J isn’t known for quickly settling cases, so resolving three in close proximity may indicate executives and lawyers are looking at the talc cases differently, said Jean Eggen, a Widener University law professor who teaches about mass-tort cases.
“It looks like they have decided to cut their losses in some cases and move on,” she said. “Often times, that kind of individual scrutiny will produce settlements.”
J&J denied any shift in its litigation strategy, standing by its position that there was no asbestos in its talc-based products and that it had not concealed the health risks of using baby powder from consumers.
“In litigation of every nature there are one-off situations where settlement is a reasonable alternative,” Kim Montagnino, a spokesperson for J&J, said in an e-mailed statement. “We do not have any organised programme to settle Johnson’s Baby Powder cases, nor are we planning a settlement programme.”
The settlements add another layer of complexity to the company’s mixed record in the talc-cancer cases it has fought across the US J&J prevailed in a New Jersey trial on Wednesday, two weeks after a jury in Oakland, California, hit it with $29m in damages. The company still faces more than 13,000 suits blaming its talc-based products for causing mesothelioma and ovarian cancer. More than two-dozen trials have been scheduled in US courts in 2019.
Several of the early trials resulted in plaintiffs’ verdicts, including a $4.69 billion victory in St. Louis in 2018 for 22 women with ovarian cancer. But J&J has been able to win reversals of three of the first five jury awards.
The cases that have settled so far all involve mesothelioma. Patients generally don’t live long after a diagnosis. The death rate and the ties to prior asbestos litigation also means these claims get quicker trial dates. Nearly all the talc trials set for 2019 involve mesothelioma victims.
All the women who settled cases Wednesday were represented by the Dallas-based Simon Greenstone Panatier law firm, which persuaded a California jury last year to award $25.7m to a woman who argued her mesothelioma came from exposure to asbestos in baby powder.
Sharon Pipes, the Oklahoma plaintiff, was diagnosed in 2017 with peritoneal mesothelioma, a cancer of the lining of the abdomen. Experts have linked that illness to asbestos exposure. She used Johnson & Johnson’s talc products for 50 years, her attorneys said at trial.
One juror said outside court that the 11-woman, one-man panel was leaning toward finding J&J liable for its powders helping to cause Pipes’s cancer.
“We were one or two short,” of getting the nine votes needed for a verdict, said juror Frances Harris. Shes noted that she was among those who thought J&J should be held accountable for not warning about the presence of asbestos in some of its talc powders.
“What convinced me were all of the internal Johnson & Johnson documents,’’ she said. “They said in their own words that they knew there was asbestos but they kept saying, ‘Zero tolerance for asbestos’.’’
In the Los Angeles case, lawyers for Gail Koretoff told a state-court jury in Santa Monica on Monday that she developed mesothelioma after being exposed to asbestos particles in the company’s baby powder and other talc products. J&J’s lawyers disputed that claim, saying years of tests found none of the carcinogen in the products.
The third settlement involved claims filed by Jenny Shulman, who is suffering from peritoneal mesothelioma. In her New York suit, Shulman blamed use of J&J talc for feminine hygiene for her exposure to asbestos.
The accord came after J&J lost a bid to stop a plaintiff’s expert from testifying he found asbestos and talc in Shulman’s ovarian and fallopian tissue. The trial was slated to begin April 9 in state court in Manhattan.
The company has also won recent defense verdicts in cases alleging links between baby powder and mesothelioma, including the one Wednesday in New Brunswick, New Jersey. Some of the verdicts include awards against J&J’s talc supplier, Imerys America, which filed for bankruptcy protection in February.
In the New Jersey case, the jury unanimously found that J&J’s talc didn’t contain asbestos and wasn’t responsible for plaintiff Ricardo Rimondi developing mesothelioma. Rimondi was disappointed with the jury’s decision, “particularly in light of the overwhelming scientific and documentary evidence supporting” allegations that J&J’s talc products are tainted with asbestos, Monica Cooper, one of his attorneys, said in an e-mailed message.