Following a recent claim, brought against family healthcare brand, Johnson & Johnson, an order has been made, before a Californian jury, for the payment of $417 million (£323.4 million) in compensation.[i] The court reached the conclusion that the corporation had concealed information from the public, regarding the cancer associated risks attached to their baby powder product. This award was separated into compensatory damages and punitive damages, valued at $70 million (£54.3 million) and $347 million (£269.1 million) respectively.[ii]
Previously, in edition 184 (here), we discussed the result of another claim against Johnson & Johnson, which saw a payout of more than $110 million (£85 million). This was 1 of 4 cases before juries in Missouri, with Johnson & Johnson only defending 1 claim successfully. At the time, $110 million was the largest award, but the most recent decision has seen this record almost quadruple.
Both claims were brought in respect of cancer, allegedly developed through regular application of talcum powder, manufactured by the company. This is unlikely to be the last of the claims against Johnson & Johnson as there are currently 4,800 talcum powder based claims in the process of being brought against Johnson & Johnson nationally in the US.[iii]
In this most recent decision, the claimant, Eva Echeverria, was 63 years old and had been suffering with terminal ovarian cancer for the past 10 years. She began using talcum powder at the age of 11 and stopped in 2016. The claimant argued that ill health was the ‘proximate result of the unreasonably dangerous and defective nature of talcum powder’.[iv]
Although talc is a naturally occurring mineral, mined for extraction, it was common industrial practice to mix talc with asbestos, pre-1970, before selling it to customers as a cosmetic. As such, it has never required the official approval of the Food and Drug Administration, although baby powder does exhibit a warning, cautioning against inhalation and prescribing external use only.
Ultimately, the carcinogenicity of non-asbestos talc (post-1970) is disputed. The American Cancer Society, on their website, proposes that:
‘... talcum powder might cause cancer in the ovaries if the powder particles (applied to the genital area or on sanitary napkins, diaphragms, or condoms) were to travel through the vagina, uterus, and fallopian tubes to the ovary’.[v]
Further, in 2006, the International Agency for Research on Cancer (IARC) classified asbestos-free talc used on the genitals as ‘possibly carcinogenic to humans’, but there was limited evidence in support of this assertion. [vi] Identical findings were observed with inhaled talc and occupational exposure to talc. In other research, conducted by the Women’s Health Initiative, no association between cancer and talc was found.
However, some studies have estimated the increase in risk of developing cancer, including a 2008 meta-study, which measured a 35% increase. In 2015, a study of 2041 ovarian cancer cases calculated a 33% increase, claiming that some sub-types of ovarian cancer were more associated than others and also inferred a link between talc and hormone therapy. [vii] Moreover, as recently as January 2017, a meta-analysis confirmed that serious carcinomas were one of the sub-types responsible for a weak, but statistically significant association, resulting in an increased risk of 22%. [viii] Relying on all the evidence available, Ovacome, the charity, have deduced that, in the worst case scenario, the risk increases by one third and there is no definitive information to prove the exact magnitude:
‘Ovarian cancer is a rare disease, and increasing a small risk by a third still gives a small risk ... even if talc does increase the risk slightly, very few women who use talc will ever get ovarian cancer. Also, if someone has ovarian cancer and used talc, it seems unlikely that using talc was the reason they developed the cancer’. [ix]
Currently, there is no relationship between duration, or frequency of talc use, and cancer risk. In spite of an inability to establish definitive causal association, in a case from February 2016, in which Johnson and Johnson were ordered to pay damages to the claimant, the trial reportedly saw an internal memo from a medical consultant, employed by Johnson & Johnson, suggesting that ‘anybody who denies [the] risks’ between ‘hygienic’ talc use and ovarian cancer would be publicly perceived in the same light as those who denied a link between smoking cigarettes and cancer.
In Echeverria, Johnson & Johnson relied on a Harvard University study on 121,000 women, in which 307 out of 78,630 talc users were struck by ovarian cancer, displaying ‘no overall association’. However, the study did convey a ‘modest elevation in risk’ for a sub-type of ‘invasive serious ovarian cancer’, which Echeverria supposedly has. Conversely, the claimant lawyers cited a 1982 research publication, written by Daniel W. Cramer, which showed that women had a 92% increased risk of ovarian cancer through talc application. The jury, on balance, sided with the evidence put forward by counsel for Echeverria.[x]
Spokesperson for Johnson & Johnson, Carol Goodrich, released a post-judgment statement, as follows:
‘We will appeal today's verdict because we are guided by the science’.
The New Jersey headquartered company will therefore proceed in the same vain as with other rulings on the same subject matter, by challenging the preliminary ruling. When Johnson & Johnson were successful in defending a claim, in March, their strength in submission hinged on the unconvincing nature of evidence establishing a connection between cancer and talc. This rendered insufficient the proposition that warnings on packaging should be stricter. More rulings are anticipated in due course, along with an updated selection of adduced scientific evidence. We will continue to report on this issue in the coming months.
[i] Echeverria et al v. Johnson & Johnson, Los Angeles Superior Court, No. BC628228.
[iii] Nate Raymond, ‘Johnson & Johnson ordered to pay $417m to woman claiming to have developed ovarian cancer from baby powder’ (22 August 2017 The Independent) <http://www.independent.co.uk/news/business/news/talc-johnson-baby-powder-cancer-woman-compensation-417-million-ovarian-california-hygiene-a7905996.html> accessed 22 August 2017.
[iv] Michael Balsamo, ‘Record $417M award in lawsuit linking baby powder to cancer’ (21 August 2017 ABC News) <http://abcnews.go.com/Health/wireStory/jury-awards-417m-lawsuit-linking-talcum-powder-cancer-49341087> accessed 22 August 2017.
[v] ‘Talcum Powder and Cancer’ (17 November 2014 American Cancer Society) <https://www.cancer.org/cancer/cancer-causes/talcum-powder-and-cancer.html> accessed 22 August 2017.
[vi] IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Volume 93, Carbon Black, Titanium Dioxide, and Talc http://monographs.iarc.fr/ENG/Monographs/vol93/mono93.pdf (Accessed 6th May 2017)
[vii] NHS Choices, Talc and ovarian cancer: what the most recent evidence shows - Health News - NHS Choices. (2016). Available at: http://www.nhs.uk/news/2016/03March/Pages/Talc-and-ovarian-cancer-what-the-most-recent-evidence-shows.aspx. (Accessed: 6th May 2017)
[viii] Berge, Wera, et al. "Genital use of talc and risk of ovarian cancer: a meta-analysis." European Journal of Cancer Prevention (2017). http://journals.lww.com/eurjcancerprev/Abstract/publishahead/Genital_use_of_talc_and_risk_of_ovarian_cancer___a.99354.aspx (Accessed 6th May 2017)
[ix] Ovacome Fact sheet 15 http://www.cancerresearchuk.org/sites/default/files/fact_sheet_talc_powder.pdf (Accessed 6th May 2017)
[x] Richard Winton, ‘L.A. jury hits Johnson & Johnson with $417-million verdict over cancer link to its talc’ (21 August 2017 Los Angeles Times) <http://www.latimes.com/local/lanow/la-me-ln-cancer-talc-verdict-20170821-story.html> accessed 22 August 2017.