The legal mechanism that protects those who have sustained damage or injuries resulting from the use of a defective or dangerous product.
This is the second part of a two-article series on the controversy surrounding the adverse health effects of regular talcum-based products use. For the first part, click here.
In the previous article in this series, we established that there exists sufficient scientific evidence to link talcum powder use with ovarian cancer. Now, the big questions that will be the focus of this article are: Was the Johnson & Johnson company aware of these findings? If so, since when? And how did they respond? These issues are important. If it can be proven that the company did, indeed, know about a potential danger that one of their most widely-used flagship products posed to the health of thousands of women, and yet they failed to act accordingly – for example, by placing an adequate warning on the label – then they may be held liable for the cancers and other health issues linked with frequent use of talcum powder. In such case, liability can be claimed based on the defective product principle.
Can Talcum Powder be Considered a Defective Product?
From a legal point of view, a defective product fits in one of two categories. It may be a product that has a manufacturing or design flaw which makes it unreasonably dangerous to a user because of its potential to cause physical harm. Or it may be a product that is deemed faulty because of an inadequate or even a complete lack of instructions and warnings. A defective condition can be legally recognized as the cause of damage if it directly contributes to the injury in a substantial way. For example, a certain prescription drug could be called a defective product if it causes severe side effects that the label fails to clearly describe and warn against.
In situations involving defective product lawsuits, most states now follow the rule of strict liability. This means that the defendant can be held liable for the injuries resulting from a defective product without the need to prove negligence on the part of the product’s manufacturer. Instead, the focus of a legal case concerning a defective product would be whether the risk of injury suffered by the plaintiff was predictable or not. This leads us back to the question: was Johnson & Johnson aware of the link between talcum powder product usage and an increased risk of ovarian cancer?
Was Johnson & Johnson Aware That Their Product is Linked to Cancer?
The short answer to that question is yes. Internal documents and memos of the company disclosed during trials that have already taken place in connection with the controversy revealed that Johnson & Johnson had been aware of the possible carcinogenic effect of talcum powder for decades. For example, a 1992 marketing memo shows that Johnson & Johnson did not fail to note the negative publicity talcum powder was receiving from the medical community over “cancer linkage”. The company’s response? The medical concerns over the frequent use of talcum powder were classified simply as one of the “major obstacles” to baby powder marketing. The company’s management appears to have been unaffected by the knowledge that one of their most widely-used products was potentially causing adverse health effects. Even more striking are the contents of a 1997 letter from a medical doctor to the then Preclinical Toxicology Manager of Johnson & Johnson, Michael R. Chudkowski. The letter clearly states that “a real statistically significant association has been undeniably established independently by several investigators, which without doubt will be readily attested to by a number of reputable scientists/clinicians”. The letter also warned that denying “association between hygienic talc use and ovarian cancer” could produce a risk that “the talc industry will be perceived by the public like it perceives the cigarette industry: denying the obvious in the face of all evidence to the contrary”.
The existing scientific evidence of the connection between regular use of talc powder and ovarian cancer, as well as what amounts to Johnson & Johnson’s attempts to misinform the public about it, have led several juries to deliver powerful verdicts against the company and in favor of women who were diagnosed with ovarian cancer due to a lifelong use of talcum-based baby powder. Last year, the company lost jury verdicts of $72 million, $55 million and $70 million. Interestingly, most of this money was awarded in punitive damages. More recently, a jury in St. Louis ordered Johnson & Johnson to pay out more than $110 million in compensation to a Virginia woman who claimed she developed ovarian cancer because of her use of the company’s talcum products. Nevertheless, the company continues to deny the link between talc use and ovarian cancer and is appealing the trial losses.
For Those Personally Affected by the Talcum Powder Controversy
In the US, ovarian cancer affects an estimated 24,000 women annually and it is the fifth leading cause of cancer death among women. According to other research, 1,400 women die from talc-related ovarian cancer each year. What can a woman do if she has been using talc powder for years and has now been diagnosed with ovarian cancer? What are the options for family members of a woman who lost her battle with ovarian cancer that likely developed in connection with talc use? Those who might have been affected by Johnson & Johnson’s persistent practice of misinformation concerning the risk of talcum-based products should understand their legal rights and explore options to seek compensation for all the losses and damages sustained. These may include financial losses, such as medical bills, but also emotional damage caused by the disease to the patient and her family. In addition, seeking compensation for as well as legal recognition of, the damage caused by irresponsible actions of the company can be an important step to recovery and the achievement of emotional closure. Along with our sympathy and support, women who have developed ovarian cancer as a result of talc powder use deserve to be compensated for this egregious act.
The thought of a legal battle with a giant, multinational company such as Johnson & Johnson may seem intimidating to say the least. However, the verdicts already given in favor of ovarian cancer survivors show that a fair trial and legal victory are possible. Our attorneys at Marasco & Nesselbush, LLP in Providence, Rhode Island, are confident that more of such favorable judgments can be achieved. Our legal team will not shy away from vigorously representing any woman who would like to pursue compensation for ovarian cancer that may be related to talc-powder use. Please contact our attorneys in order to receive a free consultation regarding your case.
