SAN FRANCISCO - In characterizing the more than $4.69 billion jury award against J&J after it found the company's talc-based products were responsible for ovarian cancer in 22 women, the words staggering, extraordinary, or even insane might be used.
From past history, the size of the award by a St. Louis jury will drop, likely drastically, and it may well be overturned on appeal.
But its size is a measure of just how much the jury, and others in cases across the country, are persuaded entirely by the arguments of the plaintiff bar.
Talc, a natural occurring mineral mined for years in the U.S., and later largely in China, is carcinogenic, J&J knew it was, and it attempted to cover up, according to the successful argument made to juries.
This latest award has a twist, for it is the first time, after a number of trials in Missouri and California, that it was explicitly claimed that asbestos in talc powder caused the cancer. This quickly raises the question about the previous trials because in those it was argued that talc itself is carcinogenic.
It has been conclusively proven that inhalation, and inhalation only, of asbestos over a period of time does cause cancer, mainly mesothelioma. There is no conclusive proof, according to U.S. and international expert groups, that talc, even its mined form, causes cancer.
Now J&J is facing other legal fires beyond the estimated 6,000 women who claim Baby Powder and Shower and Shower caused their cancer.
Suits are being filed, and the first award won, over claims that asbestos in talc directly caused mesothelioma in users of the same product. The first award, $117 million, was made to a New Jersey couple after the husband, a banker, contracted mesothelioma, claiming it was caused by years of inhaling J&J's talc products.
Following the St. Louis trial, one juror explained to the St. Louis Post Dispatch that they "multiplied the roughly $70 million Johnson & Johnson earned selling baby powder in a recent year by the 43 years it’s been since the company claimed the baby powder did not contain asbestos."
But geologists, the FDA, the American Cancer Society, and the World Health Organization's cancer expert group all largely agree that, first, asbestos can seep into mined talc, and secondly, to differing degrees, that there is really no evidence that consumer talc products contain asbestos, at least since the 1970s.
Talc and asbestos occur naturally and may occur in close proximity in some metamorphic rocks, according to Geology.com, which can lead to cross contamination..
"Studies published in the 1960s and 1970s identified health concerns about the use of talc that contains asbestos in some cosmetic products,"
J&J has argued in court and elsewhere that it worked to identify any traces of asbestos in their products since the early 1970s, and found none.
Peter Bicks, the lead lawyer for J&J in the St. Louis case, told Reuters news agency that the company has been investigating ways it could remove asbestos from talc during mining, but that "no contamination was ever found."
Bicks told the agency that the claims of a link between talc and asbestos is “junk science.”
Juries in those two trials appeared not to agree, though the American Cancer Society does.
"All talcum products used in homes in the United States have been asbestos-free since the 1970s," the society said, though it did not cite its own source on its website.
It adds, "Talc that has asbestos is generally accepted as being able to cause cancer if it is inhaled. This type of talc is not used in modern consumer products. The evidence about asbestos-free talc, which is still widely used, is less clear."
The International Agency for Research on Cancer (IARC) , part of the World Health Organization (WHO), has gone further than most groups in linking talc power to cancer.
First, it concludes, talc that contains asbestos is “carcinogenic to humans," secondly that inhaled talc not containing asbestos is “not classifiable as to carcinogenicity in humans," and third, that the the perineal (genital) use of talc-based body powder as “possibly carcinogenic to humans.”
But the last categorization includes a list of hundreds of agents.
In a paper published by the independent National Center for Health Research, Drs. Diana Zuckerman and Danielle Shapiro, noted that studies show that "a woman who uses talcum powder increases her chances of developing ovarian cancer from 1.3 percent to 1.7 percent."
But most of the evidence comes from studies that recruit two sets of women, those with ovarian cancer and those without. All were asked to remember whether they used talc powder, the frequency and how it was used.
"These studies cannot tell us for sure that talcum powder use causes ovarian cancer, but they can tell us if women who report using the powder in the genital area are more likely to develop ovarian cancer," the authors conclude.