Lawyers spent more this year on advertisements seeking clients for talc lawsuits against Johnson & Johnson than any other product, even as J&J announced plans to pull talc-containing Baby Powder off the market.
The move doesn’t seem to have had any affect on plaintiff lawyers’ enthusiasm for the litigation, which J&J says is based upon false claims that talc contains asbestos and causes diseases like mesothelioma and ovarian cancer. Since J&J announced the withdrawal on May 19, lawyers have filed more than 40 more complaints with the court managing federal multidistrict litigation over ovarian cancer claims in New Jersey.
The docket shows some 1,700 standardized short form complaints have been filed since Jan. 1 - a rate of more than 360 a month.
“We continue to see very heavy talc advertising,” said Rustin Silverstein, president of X Ante, a consulting firm that tracks mass tort ads.
Talc has been the most targeted product based on ad spending this year at an estimated $11.4 million, Silverstein said, double the pace in the first four months of 2019. The trend continued in April as lawyers spent an estimated $3 million on talc ads, up from $2.1 million in April 2019 and $80,000 in April 2018.
Lawyers typically crank up their ad spending on mass torts as companies enter settlement negotiations, in order to pack the docket with clients who can claim a piece of the settlement.
Reports this week show a mass tort settlement in the works over the weed-killer Roundup, which has been the focus of millions of dollars in lawyer ads through recent years. Its active ingredient, glyphosate, is alleged to cause non-Hodgkin's lymphoma.
Plaintiff lawyers poured on the advertising after Roundup manufacturer Bayer was ordered by a federal judge last April to enter settlement talks, increasing spending to more than $90 million from only $7.7 million in 2019. The spending peaked in July 2019, which was followed by months of uncertainty over whether a settlement could be accomplished..
Plaintiff lawyers collect anywhere from 30% to 50% or more of settlement dollars as fees and expenses. Johnson & Johnson denies it is planning a mass settlement over talc claims, however. The consumer health giant said the decision to pull talcum powder from the U.S. market “has no impact on our legal position,” and it will continue to defend itself at trial.
“We are confident in our legal strategy and our defense, which is supported by decades of scientific evidence showing our talc is safe and does not contain asbestos,” the company said in a prepared statement. “All verdicts against the Company that have been through the appeals process have been overturned.”
Courtroom victories don't mean mass settlements aren't coming, though. The heart drug Xarelto has been the second-most advertised mass tort target in recent years after Roundup, with more than $103 million spent on 338,000 ads. Lawyers increased spending from $8,000 in June 2014 to $1.2 million the following month after a settlement involving Pradaxa, another blood thinner.
The spending peaked at $6.5 million in October of 2014 then dove after manufacturers J&J and Bayer won every trial beginning in 2017, only to increase again as the companies entered talks for a $775 million settlement announced in March 2019.
“It’s certainly the case when there’s a whiff of a settlement or a settlement announced, there’s a bump in advertising,” said X Ante’s Silverstein.
Talc may prove frustrating for lawyers and defendants alike. As with Roundup, plaintiff lawyers have targeted a nearly ubiquitous product with claims it causes cancers that can take decades to emerge. That makes it difficult to engineer a settlement that pays current claimants and allows plaintiff lawyers to recoup their investment in advertising and scientific experts while sheltering the company against future claims.
Johnson & Johnson also has powerful defenses, including the fact only plaintiff experts have been able to detect asbestos in talcum powder, and even then mostly in unsealed bottles plaintiff lawyers purchased on eBay and other places.
The federal judge in charge of the ovarian cancer MDL handed J&J a partial victory last month, ruling that key plaintiff expert William Longo could testify he found “ultra-trace” amounts of asbestos fibers in talc using one form of electron microscopy but that his methods were scientifically unsound using another method. He is also barred from testifying that talc users could inhale enough of the powder to cause cancer, or that inhaled powder could travel through the lymphatic system to the ovaries.
The judge’s ruling still leaves room for other plaintiff experts to tell jurors the minute amounts of asbestos Longo says he found in talcum powder samples causes cancer.