Can I sue if I was diagnosed with cancer after using talcum powder?by Jeffrey Nadrich Managing Partner, Nadrich & Cohen, LLP
Can I sue if I was diagnosed with cancer after using talcum powder?
Yes, you can sue if you were diagnosed with cancer after using Johnson & Johnson talcum powder.
A Missouri appeals court, in June, ordered J&J and a subsidiary to pay $2.1 billion in damages to women who say they got ovarian cancer from using J&J’s talcum products, including their baby powder. $500 million in actual damages and $1.62 billion in punitive damages were awarded. This order slashed in half the $4.69 billion award originally given to the women by a Missouri jury in 2018.
On what grounds can I sue?
A California jury awarded $12 million in June 2019 to a woman who says her use of talcum powder products caused her cancer. The jury in that lawsuit found J&J liable for, among other things, design defect and failure to warn.
• Design defect: Asbestos, a carcinogen, can be found in talc mines. The United States Food and Drug Administration confirmed the presence of asbestos in talcum powder products in March 2019. Studies dating as far back as 1961 found that externally used talcum powder can enter into the ovaries through the vagina. Researchers found in 1971 that some women with ovarian cancer had talc particles embedded in their tumors. Studies in 1982, 1992 and 2011 all found that women who apply talcum powder to their genitals face an increased risk of ovarian cancer. Dr. Anne McTiernan of the Fred Hutchinson Cancer Research Center testified before a U.S. House of Representatives subcommittee in March 2019, stating that “increasing the amount of exposure to talcum powder products in the genital area resulted in an increasing risk of developing epithelial ovarian cancer.”
Manufacturers are strictly liable for damages caused by their products if their products are defective and dangerous by design. Talcum powder products are likely defective and dangerous by design because talc mines contain asbestos, a carcinogen.
• Failure to warn: The Missouri appeals court mentioned above noted that J&J internal memos from as far back as the 1960s noted that the company’s talcum products contained asbestos. The negative health effects of asbestos were first noted in 1899 by H. Montague Murray. Asbestos was first associated with the form of cancer known as mesothelioma in the 1940s.
Companies are liable for damages their products caused when they knew or should have known about a dangerous risk associated with the product and failed to warn consumers about the risk. Asbestos has been known to harm humans since 1899, has been known to be a carcinogen since the 1940s and has been known to increase the risk of ovarian cancer since 1982. Johnson & Johnson knew their talcum powder products contained asbestos in the 1960s.
It appears as if J&J was aware of, or should have been aware of, the fact that their talcum powder products could cause cancer, based on the above evidence. However, at no point before withdrawing their talc-based baby powder from the market in May 2020 did J&J ever place a warning on the labels of their talcum powder products regarding the risk of ovarian cancer associated with the products.
“A reasonable inference from all this evidence is that, motivated by profits, defendants disregarded the safety of consumers despite their knowledge the talc in their products caused ovarian cancer,” the Missouri appeals court said.
Can I obtain punitive damages for talc products causing my cancer?
Yes, you can obtain punitive damages if J&J talc products caused your cancer. $1.62 billion in punitive damages were awarded in the recent Missouri appeals court decision.
Punitive damages are intended to deter defendants and others from conduct similar to conduct which caused the lawsuit, as well as to punish defendants.
Punitive damages are likely to be awarded in future J&J talc lawsuits primarily due to the existence of company memos dating back to the 1960s showing J&J knew their talc-based products contained asbestos. Juries will likely see the lack of a warning on the products’ label despite this knowledge as being worthy of large punitive damages. Punitive damages are typically awarded when defendants’ behavior is reckless, fraudulent, oppressive, malicious or and/or willful. J&J knew their products contained asbestos in the 1960s, knew or should have known that asbestos was a carcinogen since the 1940s and failed to warn consumers that their products could cause cancer. A reasonable person might conclude this failure to warn was reckless, fraudulent, oppressive, malicious and willful.
About the author
Jeffrey Nadrich is the managing partner of Nadrich & Cohen, LLP, a California personal injury law firm with offices in Los Angeles, San Francisco, Fresno, Modesto, Tracy and Palm Desert. He and the firm have been handling talcum powder and other dangerous product cases since 1990, having obtained over $350,000,000 on behalf of clients in that time span. For more information on talcum powder cases, visit https://www.personalinjurylawcal.com/cases-we-handle/talcum-powder-lawsuit/
Created on Jul 9th 2020 16:17. Viewed 104 times.