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June 1, 2021
The U.S. Supreme Court declined Tuesday to hear a case brought by Johnson & Johnson that challenged a $2.12 billion ruling in favor of 20 women who developed ovarian cancer they allege was linked to the company’s talcum powder, leaving the verdict against the pharmaceutical giant intact.
Johnson & Johnson had appealed a 2018 court ruling in favor of 22 women who alleged asbestos in the company’s talcum powder was linked to their cases of ovarian cancer, saying the company did not adequately warn of the risks associated with using their products.
The judge in that case ruled Johnson & Johnson had “misrepresented the safety of these products for decades” and the evidence shown at the trial demonstrated “particularly reprehensible conduct on the part of Defendants.”
Though the ruling was initially for $4.7 billion in damages, it was later cut down to $2.12 billion and two plaintiffs were dropped, and the decision was upheld in November by the Missouri Supreme Court.
The Supreme Court challenge had attracted high-profile legal support, with Kenneth Starr—the independent counsel in former President Bill Clinton’s impeachment investigation—representing the women.
The court declined to hear the case without comment, but noted that Justices Samuel Alito, who owns stock in Johnson & Johnson, and Brett Kavanaugh—who worked for Starr and whose father headed the Cosmetic, Toiletry and Fragrance Association that fought efforts to add health warnings to products—did not participate in the decision.
Johnson & Johnson discontinued using talc in their baby powder in May 2020 in response to the lawsuits over the safety concerns, though they said they would still “vigorously defend” the product’s safety.
The case at the heart of Tuesday’s decision was the most prominent of the thousands of lawsuits Johnson & Johnson has faced over their talc powder, with company data cited by the New York Times in 2018 reporting that more than 9,000 women had so far been named as plaintiffs in lawsuits against the company. The lawsuits, which date back to 2013, have had varying levels of success: One recent challenge resulted in a $117 million reward to the plaintiffs, for instance, but was then overturned by an appeals court in April. Though Johnson & Johnson did have to voluntarily recall a single lot of baby powder in 2019 for subtrace levels of asbestos, companies have been directed not to use asbestos—which can be naturally found in talc—in cosmetic products since the 1970s, the American Cancer Society reports. According to the National Cancer Institute, “the weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.”
The lawsuits against Johnson & Johnson over its talc powder were brought with smaller numbers of plaintiffs per case rather than one case brought by all the women with concerns en masse, which sources involved with the cases told the Times allows women to share their legal strategies with later plaintiffs and maximize the emotional effect of their legal cases on juries. “It’s easier to get justice in small groups,” attorney Marc Lanier, who represented the women in the lawsuit appealed to the Supreme Court, told the Times in 2018. “In small groups, people have names, but in large groups, they’re numbers.”
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