The fourth talc trial in Missouri is underway. Johnson and Johnson will again defend the safety of its talcum powder products, when three times last year in the same court it was found to be responsible for women’s ovarian cancer. Juries came down hard on the corporate giant with massive punitive damages for not warning consumers of its products’ cancer risk. Between all three trials the company was hit with $177 million in punitive damages alone.
“A lot of what is at stake at this trial is, do plaintiffs have a ‘case in a box’ — do they have a recipe that just works in virtually every case?” Max Kennerly of Kennerly Loutey told Law360. “The concept of bellwethers in general is you lose some, you win some and you sort out the valuation of each case. But in talc, it’s just a string of victories.”
Plaintiff Nora Daniels, 56, of Tennessee, alleges she developed ovarian cancer after three decades of perineal talc use. According to Law360 she says the talc traveled to and accumulated in her ovaries, causing cancer, and that Johnson and Johnson, in spite of knowledge of this risk, failed to warn her or other consumers.
In the past trials, plaintiffs’ attorneys have presented internal documents that show that the company has known for decades about this cancer risk, but they considered it an obstacle to corporate growth rather than an obligation to consumer safety. In the most recent trial a whistleblower from Johnson and Johnson came forward and admitted to being told to alter hundreds of adverse event reports from women with cancer. These are the reports that the U.S. Food and Drug Administration (FDA) uses to monitor product safety issues.
“I really do think the evidence is so profoundly surprising and shocking that until you see the documents yourself, it’s hard to know what you’d do as a juror,” said Sarah London of Lieff Cabraser Heimann & Bernstein LLP, whose firm is representing talc plaintiffs in California.