Victory for U.S. Ovarian Cancer Victims
A decision announced on June 1, 2021 by the U.S. Supreme Court is reverberating around the world with huge media coverage in Canada, Peru, Mexico, Honduras, UK, France, Spain, Greece, Japan, Korea, China, Vietnam and Russia. By rejecting an appeal from the American pharmaceutical giant Johnson and Johnson (J&J), the Supreme Court let stand decisions of the Missouri Court of Appeals (2020) and a St. Louis jury (2018) which had found that J&J’s asbestos-containing talc-based baby powder was a killer.
The litigation in this case began with a product liability lawsuit initiated in 2015 on behalf of twenty-two plaintiffs1 who, as a result of exposures to asbestos contained in J&J’s iconic baby powder, had contracted ovarian cancer; six of the women had died from ovarian cancer prior to the trial commencing, three more have died from it since.
J&J fought the case tooth and nail in the courts and in the media, continually denying that the use of its baby powder could cause cancer. When the Missouri Supreme Court refused to consider an appeal from J&J, there was nowhere else for the company to go but the Supreme Court. The company filed a petition for certiorari and wielded heavy-weight support from business-backed organizations including the U.S. Chamber of Commerce, National Association of Manufacturers, Business Roundtable and others.2 Despite employing former U.S. acting solicitor general Neal Katyal, on June 1, 2021 J&J’s appeal was rejected in a brief written order which said: “Petition DENIED. Justice Alito and Justice Kavanaugh took no part in the consideration or decision of this petition.”3
As a result of the Supreme Court’s decision, the verdict approved by the Missouri Court of Appeals which had awarded $2.12 billion to twenty claimants still stands. Needless to say, even now Johnson & Johnson refuses to admit defeat with a corporate spokesperson spouting yet more misinformation to try and minimize the seismic shock of the Supreme Court’s pronouncement:
“The decision by the Court to not review the Ingham case leaves unresolved significant legal questions that state and federal courts will continue to face on issues related to due process rights and personal jurisdiction. The Supreme Court has many times said that its decision to deny hearing a case expresses no view on the merits whatsoever, and we continue to believe that our view of the law and the facts will ultimately prevail.
The matters that were before the court are related to legal procedure, and not safety. Decades of independent scientific evaluations confirm Johnson’s Baby Powder is safe, does not contain asbestos, and does not cause cancer...” 4
Including interest which has accrued, it is believed, that J&J will pay, $2.5bn to the claimants this month.5 The company has previously admitted that there were 19,000 similar claims pending although other sources estimate that the total number of baby powder cases is much higher.6
Commenting on the outcome of the case, the plaintiffs’ leading lawyer Mark Lanier said:
“This was a victory not just for the amazing women and their families who we were privileged to represent, but a victory for justice…This decision sends a clear message to everyone: you will be held to account when you cause grievous harm under our system of equal justice under law.”7
In many of the articles written about these developments, the authors mentioned that in 2020, J&J had announced that in the U.S. and Canada it was replacing its contentious baby powder with a safer alternative: cornstarch-based baby powder, a product that had been available for decades. Outside of North American markets, sales of the toxic baby powder would continue. When asked his thoughts about Johnson & Johnson’s double standards, Mr. Lanier replied: “I hope they quit selling this killer dust EVERYWHERE!” 8
While a few politicians and consumer associations have raised the alert about the toxic powder – see Early Day Motion 1718: Talcum powder, asbestos contaminants and cancer9 – most national governments, regional associations and international agencies seem to have swallowed the company’s reassurances.10 One can but hope that given the developments in Washington D.C. earlier this week, they might reconsider.
June 3, 2021
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1 The claims of two of the plaintiffs were dismissed by the Missouri Court of Appeals in 2020 for jurisdictional reasons.
https://www.wsj.com/articles/supreme-court-won-t-consider-johnson-johnson-challenge-to-2-1-billion-judgment-in-baby-powder-case-11622555345
2 Asgari, N. Johnson & Johnson to pay $2.1bn in talc cancer case after Supreme Court rejection. June 1, 2021.
https://www.ft.com/content/d16d6df6-e6e0-4db2-88bf-02ae76b9fca3
3 Kendall, B., Loftus, P. Supreme Court Won’t Consider Johnson & Johnson Challenge to Baby Powder Judgment. June 1, 2021.
https://www.wsj.com/articles/supreme-court-won-t-consider-johnson-johnson-challenge-to-2-1-billion-judgment-in-baby-powder-case-11622555345
Supreme Court. Orders in Pending Cases. June 1, 2021.
20-1223 JOHNSON & JOHNSON, ET AL. V. INGHAM, GAIL L., ET AL. [Page 5]
https://www.supremecourt.gov/orders/courtorders/060121zor_e1p3.pdf
4 Johnson & Johnson v. Ingham, 20-1223.
https://www.supremecourt.gov/docket/docketfiles/html/public/20-1223.html
Segal, E. Johnson & Johnson Faces Another Crisis After Supreme Court Decision. June 2, 2021.
https://www.forbes.com/sites/edwardsegal/2021/06/02/johnson--johnson-faces-another-crisis-after-supreme-court-decision/?sh=6e0682971579
5 Hurley, L. U.S. Supreme Court rebuffs J&J appeal over $2 billion baby powder judgment. June 1, 2021.
https://www.reuters.com/article/us-usa-court-johnson-johnson-idUSKCN2DD3MU
6 Stohr, G., Feeley, J. Johnson & Johnson must pay $2.1 billion talc baby powder award as Supreme Court rejects appeal. June 1, 2021
https://www.chicagotribune.com/business/ct-biz-johnson-talc-supreme-court-20210601-h57re3cfajfivikmsd7ddz4vim-story.html
7 Supreme Court’s Denial of J&J Petition a ‘Victory for Justice.’ June 1, 2021.
https://www.lanierlawfirm.com/supreme-courts-denial-of-jj-petition-a-victory-for-justice/?utm_source=twitter-organic&utm_medium=social
8 Email received June 2, 2021 from Mark Lanier.
Kazan-Allen, L. Double Standards: Toxic Talc Banned at Home, On Sale Abroad. May 28, 2020.
http://ibasecretariat.org/lka-double-standards-toxic-talc-banned-at-home-on-sale-abroad.php
9 Early Day Motion 1718: Talcum powder, asbestos contaminants and cancer. April 12, 2021.
https://edm.parliament.uk/early-day-motion/58341
10 Kazan-Allen, L. White Powder, Black Lives. July 10, 2020.
http://ibasecretariat.org/lka-white-powder-black-lives.php
