Lawsuit alleges regular talcum powder use led to ovarian cancer, death

by Jeffrey Nadrich Managing Partner, Nadrich & Cohen, LLP

A lawsuit filed in New York alleges that regular and prolonged use of Johnson & Johnson’s talcum powder products led to a New York woman’s ovarian cancer and death. The wrongful death lawsuit accuses J&J of “negligent, willful and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, advertising, marketing, distribution, labeling, and/or sale” of their talcum powder products.

The complaint states that the decedent was born in 1952 and used J&J’s Baby Powder and Shower to Shower “for nearly her entire life.” The complaint claims that “as a direct and proximate result of using” talcum powder she was diagnosed with ovarian cancer in December 2009 “following a total abdominal hysterectomy, bilateral salpingo-oophorectomy, infracolic omentectomy, and aortic lymph node dissection.” The complaint states she died from the cancer in January 2014.

Lawsuit claims J&J knew talc is a carcinogen

The lawsuit notes that “a feasible alternative” to talcum powder products has existed “at all pertinent times” in cornstarch, “an organic carbohydrate that is quickly broken down by the body with no known health effects.”

The complaint notes that J&J advertised and marketed their talcum powder products by instructing women to dust themselves with it to mask odors through advertising language such as “your body perspires in more places than just under your arms” and “Shower to Shower can be used all over your body.”

The complaint notes that the first study to suggest an association between talc and ovarian cancer was conducted in 1971. A 1982 study found a 92% increased ovarian cancer risk in women who reported genital talc use, prompting one of the doctors who conducted the study to advise a J&J doctor to put a warning about ovarian cancer on the labels of their talcum powder products, according to the complaint.

The complaint notes that an additional 22 epidemiologic studies have provided data about the association between ovarian cancer and talc, and that nearly all of them have discovered an elevated risk of ovarian cancer associated with genital talc use.

The complaint notes that a study published in 1993 found “clear evidence of carcinogenic activity” regarding non-asbestiform talc. “Talc was found to be a carcinogen, with or without the presence of asbestos-like fibers,” the complaint states.

The complaint alleges that the Cosmetic Toiletry and Fragrance Association (CTFA), of which J&J was a member, formed the Talc Interested Party Task Force (TIPTF) in response to the 1993 study. “The stated purpose of the TIPTF was to pool financial resources of these companies in an effort to collectively defend talc use at all costs and to prevent regulation of any type over this industry,” the complaint states.

The complaint claims the following:

• The TIPTF hired scientists to do biased research on talc safety

• TIPTF members edited scientific reports prior to submitting them to government agencies

• TIPTF members knowingly released false talc safety information to the public

• TIPTF members used economic and political influence on regulatory bodies regarding talc

The complaint notes that a November 1994 letter from the Cancer Prevention Coalition to J&J’s then-CEO Ralph Larson stated that studies from as far back as the 1960’s conclusively show that genital talc use poses a serious ovarian cancer risk, citing a recent Harvard Medical School study confirming this and requesting that J&J withdraw talc products from the market because cornstarch powders exist, or at least place a warning on their talc products regarding ovarian cancer.

The complaint notes that the condom industry stopped dusting condoms with talc in 1996 due to growing health concerns.

The complaint states that the International Association for the Research of Cancer (IARC), part of the World Health Organization (WHO), classified talc, used on the perineum, as a group 2B human carcinogen. The complaint refers to the IARC as “universally accepted as the international authority on cancer issues.” The IARC said between 16 and 52 percent of women in the world used talc to dust their perineum and that this talc use presented a 30-60 percent increased risk of ovarian cancer, according to the complaint.

The complaint notes that the Canadian government classified talc as a “cancer causing” substance, giving it the same classification as asbestos.

The complaint notes that Imerys Talc started placing warnings in 2006 on the material safety data sheets it gave to J&J alerting them about the IARC classification as well as the Canadian government classification.

The complaint claims that J&J, through all of the above information, knew talc was dangerous and failed to warn the public about it, and “disseminated false, misleading, and biased information regarding the safety” of talc to the public.

Lawsuit seeks damages based on numerous counts

The complaint seeks to recover damages based on multiple counts, including:

Strict liability – failure to warn: The lawsuit argues that J&J, at all pertinent times, knew or should have known that perineal talc use significantly increases the risk of ovarian cancer “based upon scientific knowledge dating back for decades.”

The lawsuit argues that J&J’s talc products were “in an unreasonably dangerous and defective condition because they failed to contain adequate and proper warnings” about the increased risk of ovarian cancer associated with perineal talc use.

The complaint argues the decedent would not have used J&J’s talc products had their labels warned her of the cancer risk associated with the products.

Strict liability – design and/or manufacturing defect: The complaint states that “the propensity of talc fibers to translocate into the… uterus, thereby substantially increasing risk of cancer… renders [talc products] unreasonably dangerous when used in the manner [they] were intended and to an extend beyond that would be contemplated by the ordinary consumer.”

The complaint notes that safer cornstarch-based alternatives have been “readily available for decades.”

Negligence: The complaint claims J&J was negligent in:

• Failing to warn the public about the cancer risk associated with their products

• Failing to properly test their products

• Failing to inform users how to safely and properly handle and use their products

• Failing to remove the products from the market when they knew they were defective

• Failing to specifically warn the public about the dangers about perineal use of talc

• Marketing and labeling the products as safe for all uses

Breach of express and implied warranties: The complaint claims J&J expressly and impliedly warranted their products were safe when they were, in fact, not, acting “willfully, wantonly, with an evil motive, and recklessly.”

Negligent misrepresentation: The complaint argues that J&J breached their duty to accurately and truthfully represent talc’s safety to the public by representing that talc has no serious side effects when, in fact, it can cause ovarian cancer.

Fraudulent concealment: The complaint states J&J has been aware about the link between feminine talc use and cancer since at least 1982, yet “actively and intentionally concealed and/or suppressed material facts” about the cancer risk associated with talc “to induce consumers… to purchase and use” talc products.

Intentional misrepresentation: The complaint argues that J&J intentionally misrepresented that talc was safe and “profited, significantly, from their unethical and illegal conduct.”

Consumer fraud: The complaint argues that J&J’s conduct constitutes “deceptive acts or practices in the conduct of any business, trade or commerce.”

Restitution or disgorgement based on unjust enrichment: The complaint argues that J&J was unjustly enriched by their “unlawful, fraudulent and misleading” conduct.

Wrongful death: The complaint argues that the decedent died wrongfully “as a direct and proximate result of Defendants’ failure to provide timely and appropriate warning” regarding talc’s cancer risks.

Survival action: The complaint claims that, while the decedent was still alive, J&J’s conduct caused her pain and suffering, mental anguish and impairment of the enjoyment of life as well as a loss of earning and earning capacity.

About the author

Jeffrey Nadrich is the managing partner of Nadrich & Cohen, LLP, a California personal injury law firm which represents talcum powder ovarian cancer victims.