PASADENA – A jury trial now unfolding in Los Angeles County Superior Court could open a new chapter in asbestos litigation as plaintiff’s attorneys argue that Johnson & Johnson talcum powder products are to blame for their client’s lung-related cancer.
Attorneys for plaintiff Tina Herford are presenting medical testimony in a Pasadena courtroom that attempts to link Herford’s mesothelioma, an asbestos-related cancer that affects lining of the lungs, to her use of J&J’s Baby Powder and Shower to Shower products over several decades.
J&J has been on the losing end of several jury trials that ended in damages verdicts worth hundreds of millions of dollars. The plaintiffs argued that they contracted ovarian cancer as a result of using the products on their genital areas. The Herford case, however, is one of the first to link cosmetic uses of talc to mesothelioma.
“I think it could be a new chapter depending on the outcome of this lawsuit …” Robert Field, a professor of both law and health management at Drexel University in Philadelphia, told the Northern California Record. “The question is whether causation can be shown to a legally sufficient degree.”
One thing the plaintiffs have going for them is that the link between asbestos and lung ailments is well-established in the court system and in medical research, Field said. And plaintiff’s attorneys say they have documents showing J&J knew about asbestos fibers being detected in some samples of talcum powder over the years.
“The science is pretty clear,” he said. “We know asbestos can cause these diseases, even in small quantities. … They’ve got a lot of the building blocks in place.”
But air pollution and smoking have been linked to lung-related diseases as well, Field said. And in the Herford case, J&J attorneys are attempting to show that radiation treatments Herford received for breast cancer are the likely cause of her mesothelioma, not her regular use of the talcum powder products.
“The plaintiff will have to show that the cause of cancer was the asbestos and not some other exposure,” he said.
Chris Panatier of Simon Greenstone Panatier Bartlett PC in Dallas, the plaintiff’s attorney who gave the opening statement in the Herford case, said that the well-established health dangers from asbestos point strongly to the culpability of the defendants, including J&J’s talc supplier, Imerys Talc America Inc.
“They were well aware of the link between asbestos and disease,” Panatier said in an email to the Record. “Thus, when they learned their talcs contained asbestos, they had all the information they needed to stop selling them. They chose to continue, and people are now getting mesothelioma as a result.”
Panatier expects to see many more cases that attempt to establish a link between the talc and mesothelioma, which he said is caused almost exclusively by asbestos.
“I do expect an increase in litigation against talc manufacturers, insofar as I have yet to see a source of talc that hasn’t shown contamination,” he said.
Panatier declined to express an opinion about whether J&J might eventually look to settle such cases.
“I won’t guess on J&J’s litigation strategy,” he said.
Panatier’s law firm last year won an $18 million verdict against a talc supplier, Whittaker Clark & Daniels, which was found 30 percent at fault for California political aide Philip Depoian’s development of mesothelioma, according to a statement from the law firm.
J&J maintains that its talcum powder products have always been processed to the highest purity standards possible.
“The U.S. Food and Drug Administration requires specific testing to ensure that cosmetic talcum powder is free of asbestos,” J&J spokeswoman Carol Goodrich said in an email to the Record. “We are confident that our talc products are, and always have been, free of asbestos, based on decades of monitoring, testing and regulation.”
Since 1977, the company has specified that its talc products had to be asbestos-free, Goodrich said.
“Historical testing of samples by the FDA, numerous independent laboratories and numerous independent scientists have all confirmed the absence of asbestos in our talc products,” she said.
J&J could be viewed as an easy mark if it tried a strategy to settle such cases, according to Field. But if the legal floodgates open wide enough in the future, the company might go for a structured approach to consolidate and settle cases, based on reasonable damages criteria, he said.
One key issue that arises in these kinds of cases, according to Field, is the question “Did the defendant know about the risk and try to conceal it?” If the plaintiff presents evidence along these lines, it can help to persuade juries and meet the standard of liability, he said.
In turn, the plaintiff can paint the defendant as having breached its duty to provide a reasonably safe product, Field said.