Thousands of women across the country are suing the consumer goods giant Johnson & Johnson over its baby powder, claiming that talcum particles in the popular product caused their ovarian cancer.
The plaintiffs, however, are not working as a team. They are taking the company to court one at a time.
In many product liability complaints, class action status is difficult to win, given the various ways the product can be sold and used. Such cases often end up being individually litigated with the expectation that there will eventually be a mass payout.
This approach can be effective, according to plaintiffs’ lawyers. Each successive verdict, they say, sends a signal about how much plaintiffs can expect to be paid if, and when, a company agrees to settle.
“You can’t get to a global settlement until both sides have a really clear sense of the strengths and weaknesses and value of these claims,” said Nora Freeman Engstrom, a professor at Stanford Law School. “And the only way to test that is on the battlefield, which is trial.”
But going to court is expensive and risky — for both sides.
The tally of damages from verdicts against Johnson & Johnson is already in the hundreds of millions of dollars. And the harm to the company is not just financial: Its reputation could suffer if baby powder, one of its longest-standing products, is seen by the public as unsafe.
The cases are emotionally compelling.
Many of the plaintiffs — 4,800 as of July 2 — are extremely ill. In addition to seeking restitution, they are asking that Johnson & Johnson add a warning to its baby powder label or replace the product entirely with a similar one formulated with cornstarch.
Class action status “ends up taking the individuality out of the cases,” said Allen Smith, a lawyer who has represented plaintiffs in all of the cases to go to trial. And, he said, each victim “deserves the opportunity to have her day in court as fast as possible.”
But the safety concerns are based on inconclusive science.
Talcum powders contain talc, which includes moisture-absorbing particles of oxygen, magnesium and silicon. Asbestos, a known carcinogen that sometimes appears in natural talc, was stripped from all commercially used talc in the 1970s, according to the American Cancer Society.
Plaintiffs in the talc cases, citing studies from 1971 on, said that talc in baby powder can be absorbed by the reproductive system and cause inflammation in the ovaries when applied for feminine hygiene purposes.
But the National Cancer Institute said on its website that “the weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.”
As for sending a signal, the cases are mixed at this point.
Johnson & Johnson has lost six of the seven cases decided so far. A New Jersey state court judge dismissed two other complaints last year before they reached trial, ruling that the plaintiffs lacked credible scientific evidence.
Johnson & Johnson, which is appealing the verdicts that favored plaintiffs, said in a statement last month that it was “guided by the science.” It did not comment on whether it planned to pursue a global settlement.
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“Ovarian cancer is a devastating diagnosis and we deeply sympathize with the women and families impacted by this disease,” said Carol Goodrich, a spokeswoman for the company. “We are preparing for additional trials in the U.S. and will continue to defend the safety of Johnson’s Baby Powder.”
The company is no stranger to enormous legal challenges.
As of early July, Johnson & Johnson faced lawsuits stemming from its blood thinner Xarelto, which 20,000 plaintiffs said caused uncontrollable bleeding. Another 55,500 cases concern pelvic mesh for women, which attorneys general in Washington and California said caused urinary dysfunction, loss of sexual function, constipation and other complications.
The first talc trial was in 2013 in Federal District Court in South Dakota. A jury found Johnson & Johnson negligent in a complaint filed by a Sioux Falls resident, Deane Berg, 60, but did not award her damages.
Ms. Berg, who used the company’s baby powder for 40 years and developed ovarian cancer in 2006, said she had turned down a $1.3 million settlement offer from the company. She instead wanted, but failed to force, the company to put warning labels on the product or to remove it from shelves.
Ms. Berg said she had endured “brutal” chemotherapy for six months and had also sustained permanent hearing loss, nerve damage, anemia and depression. Her cancer is in remission.
“It would be better to put all of these cases together and go after Johnson & Johnson for the whole thing,” she said.
So far, pretrial procedures in nearly 900 talc cases have been consolidated into what is known as a multidistrict litigation, or MDL. Complaints filed in different federal courts are being transferred to a single bundle in Federal District Court in New Jersey, where Johnson & Johnson is based and where many of its employees would probably serve as witnesses.
MDLs tend to reduce costs and time. Only one set of expert witnesses needs to be called. Lead lawyers chosen for each side oversee the process.
More consistency from the courts could mean a smaller legal bill for Johnson & Johnson.
By 2007, three years after the drugmaker Merck removed its Vioxx pain medication from pharmacy shelves, the company had paid more than $1 billion in legal fees over nearly 20 trials before agreeing to spend $4.85 billion to settle 27,000 lawsuits. Plaintiffs claimed, and evidence showed, that the drug increased the risk of heart attacks and strokes.
For Johnson & Johnson, which recorded $806 million in net litigation expenses for the 2016 fiscal year and at least $400 million during the second quarter of fiscal 2017, the most painful blow in the talc litigation came on Aug. 21.
That was when a jury in Los Angeles County Superior Court awarded Eva Echeverria, 63, of California, $417 million in her case against the company.
The decision included $347 million in punitive damages, which are awarded in only 5 percent of civil trials in which plaintiffs are successful, according to government data. Juries typically tack on punitive damages to a standard compensatory award when they deem a defendant’s behavior to be especially harmful.
“To me, that’s a very prudent, reasonable award, to be honest,” said Mr. Smith, one of Ms. Echeverria’s lawyers.
Clients must wait out the appeals process before receiving a payout, Mr. Smith said. Not that Johnson & Johnson, which recorded $16.5 billion in profits last year, would appear to be too worried about the money.
“In the history of major litigation cases against big pharma, there’s only been a few that really raise the bar to impacting the stock, but we haven’t seen those in a long time,” said Damien Conover, an analyst at Morningstar. “There’s a lot of room for a company like Johnson & Johnson to digest legal costs.”