Nationwide, Johnson & Johnson is facing over 14,000 lawsuits claiming that its talc-based products, J&J Baby Powder and Shower to Shower, contain asbestos. According to the lawsuits, regular use of these products for genital hygiene can cause ovarian cancer and mesothelioma.
Last year, a law firm heavily involved in the litigation filed a case against J&J under California’s Proposition 65 law. The law requires manufacturers and retailers to reveal any carcinogens in the products they make and sell. Failure to do so can result in a $2,500 fine per violation. The lawsuit was brought on behalf of seven plaintiffs who suffer from ovarian cancer or who represent people who died from that cancer.
If J&J loses the Prop 65 lawsuit, it would be required to include a warning on its talc products saying they contain a known carcinogen (asbestos) and may cause cancer.
Recently, the law firm that filed the Prop 65 lawsuit moved to dismiss it. According to a statement to Bloomberg, the reason it wants to dismiss the suit is that it plans to add additional defendants. This is because Shower to Shower is now distributed by a company called Valeant Pharmaceuticals. The law firm wishes to add Valeant and possibly the retailer Claire’s Stores Inc., which sold the products.
While a proposed dismissal would ordinarily be good news for Johnson & Johnson, the company opposes the dismissal. It contends that the real reason the law firm wants to dismiss the case is that it would probably lose.
J&J says that it has sworn statements by four plaintiffs saying they weren’t even aware they were involved in the lawsuit.
J&J talc cases have had mixed results
As the talc cases roll through the courts, it is difficult to predict the outcomes. The plaintiffs have won 10 cases against J&J, while J&J has won seven. There were hung juries in three cases and four others settled out of court.
The U.S. Department of Justice has opened an inquiry into whether J&J’s talc products contain asbestos and, if so, whether the company knew of the asbestos and tried to hide it from regulators and the public.
J&J continues to insist its products contain no asbestos and do not cause cancer. It points to numerous tests, some performed by the FDA, that found no asbestos in the products. However, the plaintiffs in these numerous lawsuits have substantial evidence that the source of talc J&J relies upon is tainted by asbestos and that J&J has long known of the problem. After hearing evidence from both sides during trials, more juries so far have agreed with the plaintiffs than they have with J&J.
In cases involving allegations of large-scale harm to consumers, it’s expected the parties will engage in some gamesmanship and strategy. Whether that has happened in this Prop 65 case will be determined by a federal judge.
Ultimately, however, the truth will continue to come out about asbestos in Johnson & Johnson’s talc products. If these products do contain asbestos, J&J could owe significant compensation to potentially millions of affected consumers.