A New Jersey state court jury has returned verdicts totaling $117 million against Johnson & Johnson and its talc supplier, Imerys Talc America Inc., after finding that the healthcare giant’s talcum powder caused a New Jersey man to develop mesothelioma. The award included $37 million in compensatory damages to plaintiffs Stephen Lanzo III, an investment banker, and his wife, and $80 million in punitive damages.
Though the disease at the center of this lawsuit was mesothelioma, the case may well have a significant impact on the 6,000-plus women who have filed lawsuits alleging that J&J’s talcum powder caused their ovarian cancer.
Punitive Damages Generate Large Numbers in Verdicts Against Johnson & Johnson
An $80 million punitive damages verdict is certainly remarkable. Even more telling is what the verdict says about the jury’s estimation of the seriousness of Johnson & Johnson’s misbehavior. The importance of the verdict is augmented by the frequency with which punitive damages are being awarded in lawsuits against J&J.
Punitive damages are not routinely added to personal injury claims. In most states, including the three listed in the table above, state laws limit the awarding of such damages to only those cases where there is “clear and convincing evidence” that the defendant intentionally disregarded the safety or well-being of others. The punitive damages awarded in recent talcum powder trials for mesothelioma and ovarian cancer cases suggest that jurors, presented with evidence of how the “Baby Company” conducts its business, are finding a pattern of reckless indifference to human safety and suffering.
The New Jersey baby powder trial is the most recent case in point. Punitive damages in that state can be awarded only if the plaintiff proves by clear and convincing evidence that the acts or omissions of the defendant demonstrated “actual malice” and were “accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions.”
That willful disregard of foreseeable harm is just what Mr. Lanzo and his wife alleged in their lawsuit, and what the jury found following its deliberations. The Lanzo complaint asserted that:
- Lanzo contracted mesothelioma as a result of the defendant’s misconduct.
- It was foreseeable that Mr. Lanzo would be injured by the actions of the defendants.
- The defendants failed to warn Mr. Lanzo of the danger of asbestos exposure in their product.
- The defendants “willfully, wantonly and intentionally conspired” to withhold information about the dangers associated with asbestos containing talc and the possible fatal consequences of asbestos fiber inhalation and similarly conspired to disseminate false product safety information to Mr. Lanzo and the public.
Smoking Gun Documents Show Johnson & Johnson’s Misdeeds
What are jurors seeing that so convinces them that punitive damages verdicts are justified? The “smoking guns” in these cases are documents that indicate Johnson & Johnson has been aware for years that consumers using talcum powder were in danger of potentially fatal outcomes and did little or nothing to warn them.
According to a May 2017 press release, “[i]nternal Johnson & Johnson documents from 1972 note that asbestos was found in 100 percent of talc samples tested at the time, but this information was never released publicly.” In his complaint, Mr. Lanzo said he had been exposed to asbestos-containing baby powder since his birth in 1972.
The association between talcum powder and asbestos has been documented repeatedly. In 1976, scientists reported in the Journal of Toxicology and Environmental Health that out of 20 consumer talcum powder products they tested, 10 contained asbestos.
More recently, three researchers presented the results of their analysis of an unnamed “historic brand of cosmetic talcum powder” in the October 2014 issue of the International Journal of Occupational and Environmental Health.” Three independent laboratories tested over 50 samples of this historic brand, collected over a 50-year time span. In addition, tissue samples were taken from the lungs of a woman who had died of mesothelioma and had used only this brand.
The scientists reported that all three laboratories confirmed in multiple tests the presence of asbestos in the talcum powder they tested. The asbestos was found “at levels sufficient to cause mesotheliomas.”
While the brand was unnamed in this study, the authors did leave some clues. One was this statement:
“After several years of independent testing in separate laboratories, the authors became aware of one another’s work through litigation. The finding that this historic brand of cosmetic talcum powder contained asbestos fibers with generally the same morphological and chemical assemblage was confirmed.”
The talcum powder used in the study came from three mines, chosen, according to the study authors, because after a “review of corporate documents and the sworn testimony of those responsible for the sourcing of talc used in the products studied here, it was determined that three mines provided the raw material for use as talcum powder.” According to one source, two of the three mines had ties to the “current supplier of Johnson & Johnson talcum powder.”
During the Lanzo baby powder trial, Dr. James Webber, a scientist at New York’s Wadsworth Center, a public health laboratory run by the state, testified that multiple studies have found asbestos in Johnson & Johnson’s talcum powder.
Was Johnson & Johnson Hiding the Evidence That Their Talcum Powder Was Tainted?
Of course, the issue is not just that Johnson & Johnson has known its talcum powder was contaminated, but that it has known and done its best to make sure no one else knew.
The press release also mentioned an Israeli researcher who testified in a May 2017 ovarian cancer baby powder trial that J&J had hired his lab to test talc samples for asbestos contamination. J&J stopped funding the project when “a majority of the sample batches were found to be positive for asbestos.”
The Lanzo’s lead attorney stated in an interview following the trial that J&J took steps to make sure government regulators remained unaware of documents demonstrating the presence of asbestos in the company’s talcum powder.
Similar findings of intentional efforts to conceal dangers associated with talcum powder have led to punitive damage verdicts in ovarian cancer baby powder trials. Documents presented to juries showed that Johnson & Johnson’s own consultants warned the company of the talcum powder ovarian cancer link.
In a 1997 letter to a J&J executive, one consultant, Dr. Alfred Wehner, wrote, “Several investigators have independently reported talc particles in ovarian tissue,” and that numerous studies had shown a “statistically significant association between hygienic talc use and ovarian cancer.” He warned that continuing to dismiss such facts could cause the talc industry to be “perceived by the public like it perceives the cigarette industry: denying the obvious in the face of all evidence to the contrary.” (In the first ovarian cancer baby powder trial, three doctors who examined plaintiff Deane Berg’s ovarian cancer tissue with an electron microscope found talc particles.)
Public Relations Fallout After Baby Powder Trial
Johnson & Johnson did not take Dr. Wehner’s warning to heart and we are seeing the results in a string of multimillion dollar punitive damages verdicts leveled against the company. Jurors clearly do not like what they are seeing. It’s always worth keeping in mind that we are talking about a substance that is used cosmetically or for hygiene, not a medicine. Mesothelioma and ovarian cancer are fatal diseases. The only harm that could come from simply informing the public of the medical issues surrounding talcum powder use would be the negative consequences to Johnson & Johnson’s pocket book. The consequences of remaining silent, however, are immeasurably worse.