The first talc trial of the new year is underway in Missouri and Law360 is closely following the proceedings. Johnson and Johnson and talc provider Imerys Talc America are being sued by Nora Daniels, who blames Johnson’s Baby Powder for the ovarian cancer she developed after years of using it for feminine hygiene. Last year St. Louis courts held Johnson and Johnson responsible in three similar cases, ordering the company to pay damages of nearly $200 million. Imerys was also found liable in the most recent of the three trials.
According to Law360, in the opening arguments the plaintiffs’ attorney Ted Meadows of Beasley Allen promises to provide a witness testifying that J&J was aware of studies linking talc to ovarian cancer as early as 1982, evidence that talc is present in Ms. Daniels’ pathology reports, incriminating internal documents from both J&J and Imerys, and a scientist who will testify that 10 percent of the 20,000 to 25,000 ovarian-cancer diagnoses made in the U.S. each year can be traced to talc use.
In its opening arguments, Johnson and Johnson’s attorney relied heavily on the idea that the health and science community doesn’t know what causes ovarian cancer, saying that, “The leading health and safety watchdogs in this country have intensively analyzed whether talc causes cancer, whether it should be considered a risk factor, and have concluded that it should not be listed as such,” Law 360 reports.
However, Law360 reports that during the first day of testimony jurors heard about the influence plaintiffs’ lawyers say these companies and their lobbyists have had on those regulatory agencies. Specifically, testimony provided by plaintiffs’ witnesses centered on the National Toxicology Program’s vote in 2000 about whether talc would be included on its carcinogen inventory, the Report on Carcinogens, or RoC. Lawyers told the jurors that talc companies were aware the first day the NTP nominated talc as a possible candidate for the list public, and actively calculating financial loss the listing might cost them. According to an internal Luzenac (now Imerys) PowerPoint presented in trial, it would cause an instant $10 million-per-year loss.
Although the NTP had already overwhelmingly voted to list talc, during the few months before a final vote that would make it official, the “Talc Task Force” that had been activated was able to change votes and keep talc from being listed.
Luzenac health and safety head Steve Jarvis boasted about “our secret weapon, [to] engage the services of the Washington-based Center for Regulatory Effectiveness,” according to a document shown in court, as reported by Law360.
“We also became very aggressive in our communication with NTP and other federal agencies. [We] didn’t let the windows of ‘formal comment periods’ become restrictive. We sent emails, faxes, overnight letters and even telephone calls to key players in this battle … right up until hours before the final executive committee meeting,” Jarvis’ speaking notes said.
“We achieved a very dramatic turnaround,” he said.
The Cosmetic, Toiletry and Fragrance Association, now known as the Personal Care Products Council, an industry lobbying group allegedly worked with Luzenac to shut down the regulator concerns.
The plaintiffs Co-Lead Counsels in the talc MDL in New Jersey, P. Leigh O’Dell of Beasley Allen Crow Methvin Portis & Miles PC, and Michelle A. Parfitt of Ashcraft & Gerel LLP, recently said of the trade group in a statement to Law360: “The Council’s broadly defined mission is to influence public opinion on a national scale, and promote the purported safety of talc to both consumers and regulatory authorities, despite the ample scientific evidence linking the use of talc to ovarian cancer.” They also stated that the council is largely funded by industry, including Johnson & Johnson and Imerys Talc America.
This is not the only example of the talc industry meddling with regulatory agencies in order to protect talc’s image. In the last trial in 2016, 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.