Professor doubts Johnson & Johnson talc product liability victory will be appealed

By Karen Kidd | Dec 15, 2017

The talc-asbestos case in which a Los Angeles County Superior Court jury last month found that two litigation-beleaguered companies were not responsible for a woman's cancer likely will not be appealed, a legal and health management expert said during a recent interview.

The talc-asbestos case in which a Los Angeles County Superior Court jury last month found that two litigation-beleaguered companies were not responsible for a woman's cancer likely will not be appealed, a legal and health management expert said during a recent interview.

"I would guess not," Robert Field, a professor of both law and health management at Drexel University in Philadelphia, said during a Northern California Record telephone interview. "Judges have not been friendly towards these large-ticket talcum powder verdicts."

An appeal would have to allege an error in the law as applied to the lawsuit during trial, Field said, adding "The plaintiffs might have trouble with that." 

The lawsuit, filed by plaintiff Tina Herford and her husband Doug Herford, was the first in the United States to go to before a jury with allegations the talc-based hygiene products Tina Herford used had caused her mesothelioma. The rare, usually fatal form of asbestos-related cancer is commonly diagnosed in older patients employed in industrial settings. The couple's attorneys had asked the jury to award them $24 million.


The jury's decision in the Herford case also was widely noted as the first victory for the pharmaceutical giant Johnson & Johnson and its co-defendant, talc producer Imerys Talc America. During 17 days of argument and testimony, the two companies maintained that Johnson & Johnson's baby powder and shower to shower products have never contained asbestos and that Herford's mesothelioma likely was caused by radiation treatments she received during the 1990s to combat her breast cancer.

Johnson & Johnson will stay the course, Carol Goodrich, a spokeswoman with the company's  global media relations, said in a reply to a Northern California Record request for comment. "We are pleased with the verdict and believe that the dismissal of talc lawsuits in New Jersey and verdict reversals in Missouri and California have forced plaintiff attorneys to pivot to yet another baseless theory," Goodrich said.

"Johnson's baby powder has been around since 1894 and it does not contain asbestos or cause mesothelioma or ovarian cancer. We will continue to defend the safety of Johnson's baby powder in future trials."

Talc litigation is fast-growing among personal injury lawyers, with some attorneys working out the best venue to file litigation that alleges a connection between talcum powder and ovarian cancer. Instructors at a Mass Torts Made Perfect conference in Las Vegas in 2016 identified the most likely current and would-be defendants as Johnson & Johnson and Imerys. 

Even then, the two companies were fighting tens of millions of dollars in court awards against them, thousands of new cases and were considered ripe targets for even more litigation, conference speakers said.

Legal experts have also suggested talc-related cases could be similar to decades of asbestos and mesothelioma litigation. Since the 1980s, companies have set aside more than $30 billion for mesothelioma victims, according to the U.S. Government Accountability Office report issued in 2011 "The Role and Administration of Asbestos Trusts." Asbestos-related litigation bankrupted about 100 companies and enriched many attorneys in what has been called "the massive fraud that is routinely practiced in mesothelioma litigation."

The Herford case, which had been cited as possibly opening a new round of similar litigation against Johnson & Johnson, was the first to make it before a jury with allegations that connected talc with asbestos. "Whether there's asbestos in these products is a tough question for plaintiffs," Field said. "It seems the jury in this case was not convinced they'd answered it."

It also is not clear how strong a win the case will prove to be for Johnson & Johnson, Field said. "It's not precedent setting," he said. "Other plaintiffs can try their luck as well. It certainly was a strong victory in this case."

More litigation against Johnson & Johnson is moving forward. "There have been a lot of ovarian cancer cases," Field said. "They've had verdicts reversed on appeal but the company hasn't had much luck convincing juries to decide on their side in these cases."

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