Johnson & Johnson’s 13th Talc-Cancer Trial Loss Yields $40 Million Damages Order

In edition 287 of BC Disease News (here), we reported that Johnson & Johnson (J&J) had been ordered to pay $37 million to 4 litigants, at a trial in New Jersey. The jury verdict represented the talcum powder manufacturer’s 12th loss among thousands of ongoing product liability claims.

The latest mesothelioma victim to have her case heard at trial was 71-year-old, Nancy Cabibi. She and her husband filed a lawsuit against Johnson & Johnson on 15 June 2017, in Los Angeles County Superior Court (state Court).

On 18 April 2019, J&J sought to transfer Mrs. Cabibi’s case to the US District Court for the District of Delaware (federal Court), along with around 2,400 other cases that named talc product supplier, Imerys Talc America, as a co-defendant to proceedings, on account of its Chapter 11 protection in bankruptcy filing.

Although J&J’s motion ultimately failed, as was discussed in edition 273 (here), the claimants’ ‘imminent’ trial date had been lost.

On 3 May 2019, however, the US District Court for the Central District of California granted the claimants’ application to remand the action to state Court (where the lawsuit was filed) and proceed to expedited trial, in light of Mrs. Cabibi’s ‘rapidly declining’ condition.[i]

Court documents revealed that she had been diagnosed with mesothelioma in 2017 and had undergone surgery, chemotherapy, radiation and immunotherapy treatments.[ii]

It was alleged that her cancer had been onset by ‘regular’ use of Johnson & Johnson's Baby Powder and Shower to Shower products.

During the 4-week trial, the jury was told that tissue samples, taken from Mrs. Cabibi’s body, had tested positive for tremolite and anthophyllite asbestos, which have been linked with talcum powder contamination.

J&J’s lawyers contended that the injured claimant had been exposed to ambient asbestos in the industrial area of Los Angeles. Countering this, lawyers for the claimants argued that she had never worked in or around any facilities (e.g. a factory) where exposure to asbestos was possible and that atmospheric exposure alone would not have been enough to trigger her cancer.[iii]  

After 6-days of deliberation (Friday, 27 October 2019), once final submissions had been conveyed by the parties, the jury delivered its verdict, finding in favour of the claimant with 3-fold reasoning:

  1. J&J’s products were contaminated with asbestos and were therefore defective.
  2. Use of these products was a ‘substantial factor’ in Mrs. Cabibi’s development of mesothelioma.
  3. J&J knew of the potential risks but failed to warn consumers.

The Idaho couple was awarded $40.3 million, broken down as follows:

  • $1.2 million in pecuniary (monetary) damages, including past and future medical costs;
  • $6.5 million for past non-pecuniary damages;
  • $12.6 million for future non-pecuniary damages; and
  • $20 million to Mr Cabibi.[iv]

No punitive damages were awarded in the case, as the claimants failed to persuade the jury that J&J had negligently designed or sold its products, or that it had acted with malice or fraud.

Speaking to The Sun, on Wednesday, a spokesperson for the company expressed its dissatisfaction with latest Court ruling:

'We will pursue an immediate appeal of today’s verdict because Johnson’s Baby Powder does not contain asbestos nor does it cause cancer, as many global regulatory bodies have found for many years, and multiple juries in the US have also found in recent months’.[v]

Graph: J&J Share Price

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(Source: Hargreaves Lansdown)

 

[i] Peter Hayes, ‘J&J Ordered to Pay $40 Million in Latest Talc Cancer Loss’ (30 September 2019 Bloomberg Law) <https://news.bloomberglaw.com/product-liability-and-toxics-law/j-j-ordered-to-pay-40-million-in-latest-talc-cancer-loss> accessed 1 October 2019.  

Nancy Cabibi, et al v. Avon Products, Inc., et al, No. 2:2019cv03037 - Document 29 (C.D. Cal. 2019)

[ii] City News Service, ‘Couple awarded $40.3 million in talcum powder trial’ (1 October 2019 Fox 11) <https://www.foxla.com/news/couple-awarded-40-3-million-in-talcum-powder-trial> accessed 1 September 2019.

[iii] Natalie Rahal, ‘Idaho woman who claims baby powder gave her cancer wins $40.3 million in trial against Johnson & Johnson’ (1 October 2019 The Daily Mail) <https://www.dailymail.co.uk/health/article-7525273/Idaho-woman-wins-40-million-lawsuit-baby-powder-linked-cancer.html> accessed 2 October 2019.

[iv] ‘J&J hit with $40.3 million verdict in California talcum powder trial’ (30 September 2019 Beasley Allen) <https://www.beasleyallen.com/news/jj-hit-with-40-3-million-verdict-in-california-talcum-powder-trial/> accessed 1 October 2019.

[v] Georgia Diebelius, ‘Woman who says Johnson & Johnson baby powder gave her cancer awarded £30MILLION damages after landmark trial ruling’ (2 October The Sun) <https://www.thesun.co.uk/news/10052317/johnson-baby-powder-cancer-awarded-30million-damages-landmark-trial/> accessed 4 October 2019.