LOS ANGELES — Plaintiff lawyers will be on a never-ending search for defendants that use talc in their products, with the targeting of a cosmestics company likely only the beginning, according to a leading business defense attorney.
Michael Jordan, speaking to the Northern California Record following an award of $417 million to a woman suffering from ovarian cancer who said talc powder was to blame, mapped out the bind that Johnson & Johnson finds itself in following the verdict.
In short, the company simply cannot come up with a figure to make this go away, Jordan said.
Jordan, who operates out of Columbia, South Carolina, and participated in the defense of companies across the country, noted that only about 10 percent of talc in circulation is used in personal-care products.
Talc can be found in paper, plastic, paint and coatings, rubber, electric cable, pharmaceuticals and ceramics. In its purest form, it is carcinogenic.
"There will be a never-ending search for more defendants," Jordan said.
The California jury recently awarded Eva Echeverria $70 million in compensatory damages and $347 million in punitive damages. It was the largest award yet against J&J in trials involving its talc products.
The Los Angeles Superior Court jury found that the company failed to adequately warn users about the risks linked to the use of its products, including baby powder.
Although the U.S. Supreme Court has ruled against "forum shopping" -- out-of-state plaintiffs filing in what are seen as plaintiff-friendly states --- Echeverria is a California resident.
"These are always pretty shocking to me," Jordan said. "As sympathetic as a plaintiff may be, and I do not know anything about this woman, that is just an extraordinary amount of money. Clearly, the woman is suffering but there needs to be more reality.
"The amount of the award in many places would be the basis of an appeal but I do not know if that is the case in California. California is California, and I do not know how the appellate courts are going to view this."
Speculating on the discussions within J&J and with outside counsel, Jordan said he was sure many smart people are contemplating the aftermath of the verdict.
"One thing we have learned from the country's experience with asbestos litigation is there is never enough money for the plaintiff's bar," he said. "You simply cannot buy your way out of this stuff. You either go bankrupt or you fight until you win."
A lawyer or a group of lawyers may want to settle and J&J could agree to place, for example, $20 million in a trust fund.
"But you cannot do that because each person and each lawyer have a right to do what they wish," Jordan said. "Only judicial intervention, including bankruptcy, will negotiate it away. Otherwise, companies cannot come up with a figure."
J&J, in a statement issued after the verdict, vowed to appeal, insisting there is no scientific evidence linking its products to ovarian cancer.
"We will appeal [the] verdict because we are guided by the science, which supports the safety of Johnson's baby powder," Carol Goodrich, a company spokeswoman, said, adding that the company is preparing for more trials.
The American Cancer Society states findings from studies of talc powder have been mixed, with some studies reporting a slightly increased risk of cancer and some reporting no increase.
The International Agency for Research on Cancer (IARC), part of the World Health Organization (WHO), concludes, based on limited evidence from human studies, that the use of talc-based body powder is “possibly carcinogenic to humans.”