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From Building Materials to Bathroom Powders: How Talc Continues to Drive Asbestos Litigation

From Building Materials to Bathroom Powders: How Talc Continues to Drive Asbestos Litigation

Talcum powder lawsuits say manufacturers knew their talc was contaminated by asbestos and could cause mesothelioma and ovarian cancer, but did nothing to warn consumers about this product risk. Instead, manufacturers concealed the dangers from the public. A bombshell report by Reuters news agency in late 2018 revealed that Johnson & Johnson (J&J) knew for decades that its baby powder products were contaminated by asbestos, a mineral known to cause cancer, but the company failed to publicly disclose that information.

According to the Reuters story, J&J’s raw talc and talcum powder tested positive for trace amounts of asbestos on several occasions between 1971 and 2003.

J&J vigorously denied the allegations in a statement on its website, called the story an “absurd conspiracy theory” and continued to defend its baby powder as “safe and asbestos-free.” J&J powders are still being sold today, but in October 2019, the company recalled some 33,000 bottles of its Johnson’s Baby Powder because the U.S. Food and Drug Administration found a small amount of asbestos in a single bottle. This discovery is likely to fuel existing concerns about the famous product’s safety.

The damages continue to be compelling in the form of high verdicts, and the perceived actions / inactions on the part of the defendants to conceal the fact that asbestos was contained in their bathroom powder products is a powerful case for the plaintiff lawyers. Interestingly, the talc litigation involving a link to mesothelioma is strikingly similar to the early asbestos litigation when Johns Manville (JM) attempted to defend thousands of cases across the country — issues that various defendants in the asbestos litigation have litigated for nearly 40 years now.

Among those similarities to the past: documents that were unfavorable to the defendant(s) and the perception of deep pocketed defendants by the plaintiffs’ bar. But there are some key differences:

  • Unlike in the mid-1980s when the asbestos litigation first became national news, the general public today is much more informed through social media, infomercials, and the internet of adverse verdicts, actions by the FDA, and public attention to the link between talc, baby powder, and other bathroom powder products possibly contaminated by asbestos fibers.
  • In addition to the mesothelioma cases brought against talc defendants, numerous ovarian cancer cases have also been filed. Talc has been found to cause both malignancies, whereas ovarian cancer has not been a focus of the asbestos litigation to date.
  • J&J is confronted by looming and potentially more significant exposure. It seems nearly every household had a bottle of the company’s baby powder on their changing table for decades. As a result, the exposed populations reach well beyond occupationally exposed populations that were the main focus of the JM cases.
  • The PR impact will also be a factor. People “trusted” the baby company. JM was a manufacturer, so the public sentiment differed. Back then, there was still some sympathy for manufacturers whose products contained asbestos, as the defense verdicts for those companies demonstrated. Today, however, the general public takes a much different view of corporate duties to protect the public and the verdicts in favor of the plaintiffs underscore this.
  • The talc litigation is expected to affect many other companies beyond J&J that used talc in their products, such as balloons, plastics, cosmetics, pharmaceuticals, and many more.
  • JM filed for bankruptcy early on in the proceedings. J&J and Colgate Palmolive among others are less likely to follow suit. Rather, they are more likely to put deals in place to settle these cases as quickly and as quietly as possible.

Perhaps the greatest difference between “then and now” lies in the empowered consumer. As a society, we are less inclined to take things as they are. We question authority and are more apt to hold companies responsible for causing harm. As noted above, we have more information at our disposal, all the time.

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