Johnson & Johnson (J&J) has been held jointly liable for causing a woman to develop mesothelioma, in what is now the 11th defeat for the talcum powder manufacturer.[i]
During the course of the product liability trial, the California jury was shown electron-microscopic photos of talc samples, which showed the presence of asbestos fibres, along with ‘internal documents’ (for more detail, click here) which supposedly confirm that J&J were aware of the risk and failed to take appropriate action.
61-year old claimant, Patricia Schmitz, began using Johnson’s Baby Powder from birth. At 13, she started applying Colgate-Palmolive’s Cashmere Bouquet (another talc product) after showering and continued to do so for most of her life. Her testimony also stated that she had used Avon’s talc-based Night Magic.
Ms. Schmitz was diagnosed with pleural mesothelioma in 2018 and her life expectancy is a matter of months.
While J&J continues to sell talc-based products without a warning label, Colgate-Palmolive Co. ceased sales in 1995.
100% of Cashmere Bouquet samples tested positive for asbestos, according to the medical expert report.
The jury found Johnson & Johnson, Colgate-Palmolive and Avon Products responsible for Ms. Schmitz’ cancer in the ratio of 40:40:20. They had failed to warn consumers that ‘there was asbestos in talc and baby powder’. However, given that Avon was not a named defendant to proceedings, it is unlikely that the $2.4 million portion of the $10 million total award will be recovered.
Damages were wholly compensatory, as the jury did not consider that the defendants’ ‘irresponsible’ conduct was sufficiently ‘malicious’ to incur a punitive sanction.
As expected, J&J spokesperson, Kim Montagnino, submitted a statement almost identical to those which have followed all trial losses to-date:
‘There were serious procedural and evidentiary errors in the proceeding that required us to move for mistrial on multiple occasions and we believe provide strong grounds for appeal’.[ii]
Ultimately, J&J is still relying on ‘fifty years of science’ and 70 years of documents on mineral talc handling to protect its position on aspects of breach and causation.
[i] Schmitz v. J&J, RG18923615, Superior Court of the State of California, Alameda County (Oakland).
[ii] Jef Feeley, Margaret Cronin Fisk and Robert Burnson, ‘J&J, Colgate Ordered to Pay Almost $10 Million in Talc Case’ (12 June 2019 Bloomberg) <https://www.bloomberg.com/news/articles/2019-06-12/j-j-colgate-lose-jury-verdict-in-california-talc-cancer-case> accessed 18 June 2019.