Barely 3 weeks shy of being hit with a $35 Million transvaginal mesh verdict, on Thursday, a New Jersey jury ordered Johnson & Johnson (J&J) and its talc supplier, Imerys Talc America Inc., to pay $37 Million to a man who claimed that his life-long use of asbestos-contaminated J&J talcum powder products caused him to develop the deadly lung disease mesothelioma.
This was the second trial in what is being called an emerging front in the talcum powder litigation against J&J. The company already faces over 6,500 claims from women who mark its talc products, also including Shower-to-Shower, as responsible for their ovarian cancer.
However, this is the first time in which a consumer has prevailed against the company in a case linking its iconic talc products to mesothelioma, a cancer caused by exposure to asbestos. In November, a California jury ruled in favor of Johnson & Johnson in the first such case to go to trial against the company. That was before new evidence threatened to take this litigation in an entirely different direction.
Jury Finds Link between Talc and Asbestos Disease
The 46-year-old plaintiff in the New Jersey lawsuit filed a complaint in 2016 against Johnson & Johnson, in which he alleged his mesothelioma developed as a direct result of inhaling Baby Powder dust during use. After less than a day of deliberations, the trial came to 2 conclusions: that the product did contain asbestos, and that the plaintiff’s exposure to it played a substantial role in causing his terminal disease.
In the California trial, Johnson & Johnson had successfully argued that its products did not contain asbestos. However, this week, J&J maintained that its “reliable” tests for asbestos contamination always turned up negative.
But this time, the jury found that Johnson & Johnson deliberately used testing methods too weak to detect the toxic mineral, knew of its presence, and hid this fact from consumers and regulators for years. The jury attributed 70 percent of the blame to J&J and 30 percent to its talc supplier, Imerys. It awarded $30 Million to the plaintiff and $7 Million to his wife in compensatory damages. The punitive damages phase begins Tuesday. Johnson & Johnson expressed its disappointment but is withholding further comment until the trial ends; Imerys plans to appeal.
Second Time Lucky, but What Was Different?
The success of the second trial perhaps owes to brand new evidence unsealed in January: hundreds of pages of internal documents showing that J&J discovered asbestos contamination in its talc as early as 1969. Confidential memos show how the company put its talc through multiple rounds of (inadequate) testing, suggesting a desperate attempt to avoid regulatory penalties, the lawsuit argued.
The plaintiff also accused Imerys officials of destroying talc samples that could have been tested for asbestos and used as evidence in the trial.
And through attempts to cover up contamination every step of the way, he alleged, the companies knowingly triggered an incurable, deadly disease.
These asbestos-in-talc mesothelioma cases are distinct from the ovarian cancer claims against J&J in that they focus on geological evidence that the talc mined by the company was tainted by asbestos. In the ovarian cancer cases, the focus is on the science that talc itself causes ovarian cancer.
This evidence could pose a serious threat to Johnson & Johnson and other talcum powder makers. Demonstrating exposure from no clearly responsible parties might have proved challenging, but experts believe contamination could be easier to establish.
Ultimately, we’re now depending on the science. And if successful, experts say, cases alleging asbestos contamination in talcum powder products could make way for an entirely new class of defendants responsible for mesothelioma diagnoses.