In a lengthy legal battle over allegations the talc in Johnson & Johnson baby powder is linked to ovarian cancer, plaintiffs scored an incremental victory Monday: A federal appeals court blocked J&J’s effort to move more than 38,000 lawsuits to bankruptcy court. Rejected.
Plaintiff Deborah Smith’s case was held up for 15 months because of an attempted arraignment, a legal tactic known colloquially as the Texas Two-Step. J&J’s approach relied on the creation of a subsidiary called LTL Management that could assume responsibility for legal claims related to talc. Within days of its creation in 2021, LTL filed for Chapter 11 bankruptcy.
By that time, more than two years had passed since Smith filed his lawsuit. The news of the two-step, she said, felt like “a slap in the face”.
“If he was someone in their family, would they have kicked him out like this?” Smith said. “It’s almost like they’re playing the waiting game to see how many will just die or give up fighting.”
Smith was diagnosed with ovarian cancer in 2003, she said, after her doctor discovered the tumor during a procedure to remove uterine fibroids. She said she had two surgeries and three cycles of chemotherapy, which caused her hair to fall out in clumps. It never grew back properly, so Smith says she still wears the wig.
According to Smith’s suit, she used J&J’s baby powder as a feminine hygiene product to absorb sweat and keep her skin dry for more than 15 years. The suit says Smith also used Shower to Shower, a talc-based product formerly manufactured by J&J until 2003.
Smith’s lawsuit cites more than 25 published studies since 1982 that evaluated a link between talc and ovarian cancer risk. The lawsuit alleges that nearly all studies document a special risk associated with the use of talc on the genital area. The World Health Organization’s International Agency for Research on Cancer considers this use “possibly carcinogenic”.
Smith is seeking punitive damages as well as compensation for medical expenses and pain and suffering. She said that her cancer has been in remission since 2005.
“Even though I’ve been cancer-free all those years ago, every time I go to the doctor to do some kind of test, I always wonder if they’re looking for something wrong,” Smith said.
J&J has faced an increasing number of lawsuits for roughly a decade, with plaintiffs alleging that their ovarian cancer or mesothelioma — a rare cancer affecting the thin layer of tissue that lines the chest and abdomen — caused the company It is caused by asbestos found in talc-based baby powder. J&J has consistently denied that its talc-based products contain asbestos.
A J&J spokesperson said, “We stand by the safety of Johnson’s Baby Powder, which is safe, does not contain asbestos and does not cause cancer.”
However, a 2018 Reuters investigation suggested that J&J knew that some of its baby powder was contaminated with small amounts of asbestos as early as the 1970s. Reuters reported that it obtained J&J company memos, internal reports, confidential documents, and depositions and trial evidence. According to that investigation, the earliest known lawsuit linking ovarian cancer and J&J Baby Powder was filed in 1997. J&J denied to Reuters that it knew of or concealed any safety issues related to talc and said that independent tests had shown that its talc did not contain asbestos.
Dr. Arthur Frank, an environmental and occupational health professor at Drexel University, said the protocols used in the independent asbestos tests that J&J has relied on are not as sensitive as some other detection methods.
“Depending on which lab you go to, which does a more diligent search than the industry, you can definitely find asbestos in many products,” Frank said.
J&J pulled its talc-based baby powder from the North American market in 2020 and switched to a formula that uses cornstarch. The company said it was confident of the safety of its baby powder and that its decision was based on declining consumer demand due to “misinformation about the product’s safety”. J&J has said it will stop selling talc-based baby powder worldwide this year.
Talc and asbestos form together in nature, so raw talc collected through mining may contain asbestos fibers that may end up in talc-based products.
“There is no process that these manufacturers use that can remove asbestos from the talcum material,” Frank said.
Asbestos can cause several types of cancer, including mesothelioma and lung, larynx, and ovarian cancer. According to the Occupational Safety and Health Administration, no amount of exposure is considered safe. Frank said people who are regularly exposed to asbestos fibers or are exposed in large amounts face a greater health risk.
The WHO considers talc that contains asbestos to be carcinogenic but does not classify pure talc as a cancer-causing agent.
Mary Ann Bingery, who lives in Houston, used J&J’s baby powder as a feminine hygiene product from 1968 to 2016, according to her lawsuit. His suit says he also used shower to shower.
Bingeri said she was diagnosed with stage 3 ovarian cancer in 2008, which required a year of chemo. The cancer returned in 2012, she said, prompting another year of chemo treatments and about 35 rounds of radiation.
“The first time it was the size of a melon. The second time they found it, the tumor was the size of a large golf ball,” she said.
Bingheri said she lost her job as an office manager after taking time off for chemo and surgery. Her lawsuit has also been put on hold due to J&J’s legal maneuvering.
Bingery said, “I’ve come to the point where I just want to see justice done for everybody who’s gone through this.”
Leah O’Dell, an attorney at the Beasley Allen law firm that represents Bingery as well as Smith, said both suits cite the same body of scientific evidence.
Bingheri said she now fears her two daughters, ages 37 and 48, may also be at higher risk of cancer because of the powder she used on them as a child. For asbestos-related diseases, the time between exposure and symptoms can range from about 10 to 50 years.
In a recent appeals court ruling, judges determined that LTL Management was not in financial trouble and had the resources to pay the claims, so the court dismissed the subsidiary’s bankruptcy filing.
According to legal experts, this was the first time an appeals court had ruled against the Texas two-step maneuver. (The court did not invalidate the strategy but ruled that J&J could not use it in this instance.)
In recent years, several other companies have attempted similar strategies, Reuters reported, including Koch Industries-owned construction company Saint-Gobain and construction company Georgia-Pacific. The maneuver’s name refers to a Texas law used to split a company to form a subsidiary that can absorb the liability. According to Reuters, J&J initially planned to pay LTL $2 billion to compensate all 38,000 current plaintiffs, as well as future claimants.
A J&J spokesperson said that LTL management initiated the process of transferring the cases to bankruptcy court in good faith to benefit all parties. LTL’s website states that cases can be resolved more quickly this way, whereas “addressing each talc case on an individual basis could take thousands of years.”
The website states, “The Chapter 11 process brings everyone together to negotiate a settlement, provides the fastest and most efficient resolution for those who have legal claims related to talc and provides certainty for all parties.” Is.”
Neil Katyal, outside counsel for LTL management and a contributing legal analyst for MSNBC, said the company is seeking another hearing by the full Third Circuit Court of Appeals, unlike the three-judge panel that ruled against J&J. Will do
Lawyers representing plaintiffs in the lawsuits against J&J said the latest decision finally allows their clients to move forward to trial.
“Our clients will, once again, have the chance to receive justice in their lifetime – whether through arm’s-length settlements negotiated with the threat of a jury trial or through verdicts over the heads of both parties. Jury Trial This right is guaranteed in the Seventh Amendment to the Constitution,” said attorney Jonathan Rakdeshall, who has represented plaintiffs in several talc cases.
O’Dell said she was “pleased to see the court reject the strategy that J&K employed to essentially move these cases out of places where they felt they were not being successful”. and to move them to a bankruptcy court, where they felt they could control the environment.
Thus far, J&J has faced $3.5 billion in judgments and settlements in cases related to talc, Reuters reported. Of that, $2 billion came from a lawsuit by 22 women. An appeals court reduced that award from an initial judgment of $4.7 billion.
However, courts have dismissed another 1,500 talc lawsuits against the company.