When emotions lead and facts follow, it can make a real mess in the courtroom. Such has been the case with Johnson & Johnson, which is currently being sued by more than 40,000 plaintiffs who claim its baby powder caused cancers, including ovarian cancer and mesothelioma.
Despite no scientific evidence establishing a causal link between talcum powder and cancer, an aggressive fear campaign orchestrated by class-action trial lawyers has created a tangled mess of contradicting legal decisions surrounding the issue.
The financial consequences of these decisions have been severe. Settling these lawsuits already cost Johnson & Johnson billions of dollars, despite no evidence that its products cause harm.
In an effort to contain this financial damage, Johnson & Johnson created a subsidiary company named LTL Management, which filed for Chapter 11 bankruptcy. The request was struck down by a federal appeals court, setting precedent that will discourage other companies from taking the same action to protect themselves—and the thousands of employees who rely on them to stay solvent—from mass tort lawsuits in the future.
The judge decided LTL Management’s ties to Johnson & Johnson (a company in strong financial health) disqualifies it from needing Chapter 11. The company plans to appeal the decision.
As the WSJ Editorial Board points out, the bankruptcy plan would have made paying claimants easier and more organized:
“The ruling is a shame, since bankruptcy courts can be more efficient handling the truckload of individual claims and offer the benefits of an expert arbiter to sort legitimate from phony claims. The plan was intended to provide money to present and future claimants while replacing the lottery-style results of jury verdicts. But the plaintiff lawyers objected because they don’t benefit as much from cases paid out in an orderly bankruptcy.”
“…The bankruptcy solution was the best hope for paying claimants while protecting the rest of the company and thousands of jobs. The only winners from the Third Circuit decision are the lawyers—and their yacht suppliers.”
The reasoning behind the ruling implies that in instances of mass tort litigation, a company may only resort to bankruptcy after all of its assets have been exhausted in litigation. Not payouts—litigation. It doesn’t stop, win or lose, until the lawyers have taken it all.
Even worse, the appeals court specifically noted that Johnson & Johnson “often succeeded at trial,” and argued this lowers the company’s future financial liability. So if a company dares to fight back against the mass tort machine and win, it hurts its chances of being able to declare bankruptcy to protect its core business down the road.
Johnson & Johnson maintains its baby powder is safe based on decades of research and “does not contain asbestos and does not cause cancer.” It has since replaced talc with cornstarch as its primary baby powder ingredient, but it is reasonable to suspect this may have been a legal decision more than a safety one.
The dilemma of “science vs. settle”
Why would a company that insists its products are safe agree to pay millions, perhaps billions, of dollars in legal fees and payouts? Simply put, they are presented with a Hobson’s choice—a dilemma that is presented as a free choice, when really there is no acceptable alternative.
Johnson & Johnson can spend millions of dollars in legal fees to defend their product (with no certain outcome), or spend millions in legal settlements to make it go away. Creating this kind of scenario is the bread and butter of the mass tort machine, which manipulates fear to shake down large companies and line their own pockets at the expense of everybody else.
For mass tort lawyers, it’s a numbers game—the quantity of claims matters far more than the validity of them. They use professional plaintiff recruitment firms to collect as many people as possible, and only need one or two “winnable” cases to force a settlement.
When the claims go to court, they cherry-pick evidence and so-called “expert” witnesses to fit their narrative. We rely on judges to see through the trickery of these bad actors, but they are experts in the law, not the lab. Would they know bad science if they saw it?
Most judges do not have sufficient scientific training, which makes it hard to understand the data and its context within all available research, and to decide what scientific evidence and expert testimony should be admissible in court. This makes going to trial a dice roll for companies, and most aren’t willing to take the bet. They would rather cut their losses and settle.
But when companies pay legal settlements based on weak or downright fraudulent science, it hurts all of us. Costs are passed on to consumers in the form of lower quality products, higher prices, fewer jobs, and lost innovation. Many plaintiffs never see the financial settlements.
It also sends a message to our communities—and our courtrooms—that these products have a secret worth hiding, which only adds to the public confusion surrounding the risk and safety of these products. And so the cycle of fear, greed, and misinformation continues.
Bringing clarity to the confusion on talc safety
To advance knowledge and bring clarity to debate over talc, the Center for Truth in Science has awarded grants to well-credentialed and respected independent researchers to review existing studies on the safety of exposure to talc in home and work environments.
Among these projects was a systematic review of the highest quality studies on the potential occupational and home health hazards of talc. It was performed by Stantec, a Boston-based research firm. It determined there is suggestive evidence of no association between inhaled talc and respiratory cancers, and its findings were published in Frontiers in Public Health in 2022. It is one of the most comprehensive systematic reviews to date of existing research on talc.
The work by Stantec also included a systematic review of the evidence on talcum powder use and risk of ovarian and other reproductive cancers, which was accepted for poster presentation at the 2022 Society of Toxicology meeting in San Diego, CA. These findings are included in a separate manuscript currently under review at a peer-reviewed journal.
Talc is used in countless products across our society, including cosmetics, powders, ceramics, deodorant, paints, rubber, toothpaste, chewing gum, and more. As discussions take place on the role of talc, decisions should be made based on validated science, not legal pressure, and produce outcomes that foster innovation, benefit consumers, and protect public health.