Talc litigation has its roots in what some scientists described as a basic misunderstanding, one that highly paid plaintiff experts transformed into a mass tort that will cost Johnson & Johnson and many other companies more than $10 billion to resolve.
In the 1960s, scientists studying women who worked in industries where they were exposed to high levels of asbestos found a troubling trend: They seemed to have increased levels of ovarian cancer. The problem with this analysis, which researchers observed then and today, was there was little evidence study authors had differentiated ovarian cancer from peritoneal mesothelioma, a cancer of the abdomen that can be caused by exposure to asbestos.
Peritoneal mesothelioma mimics ovarian cancer and can be hard to distinguish even with a pathological review. “It thus seems at least as likely that the positive epidemiological findings are attributable to misdiagnosis of peritoneal tumors as that occupational exposure to asbestos actually causes cancer of the ovary,” wrote Richard Doll and Julian Peto in their 1986 book “Asbestos-Related Malignancy.”
Even Dr. David Egilman, a plaintiff expert who has testified on everything from asbestos to popcorn fumes and whose work has been central to talc litigation, concluded in a 1992 article: “Generally, there is insufficient information to show that urogenital cancers are caused by occupational exposure to asbestos.”
So what changed? One of the most important things may be that plaintiff lawyers were running out of male industrial workers to sue over. Mesothelioma diagnoses peaked in the early 2000s as men who were exposed to asbestos in ship insulation, gaskets and other products during and after World War II gradually died off. By then a multibillion-dollar industry had grown up around suing over asbestos. After driving most of the manufacturers into bankruptcy, lawyers began seeking out any company that had touched the stuff or made products that could plausibly be associated with asbestos.
Plaintiff lawyers tried to build cases around lung cancer, which is many times more common than mesothelioma, a cancer of the chest lining. But the effort slowed after juries consistently apportioned most of the blame for lung cancer on plaintiffs who smoked.
“Most of the time they came back 90-10” against the plaintiff, said Nathan Schachtman, a corporate defense lawyer and former McCarter & English partner who writes about science in the courtroom in his blog. Even a $1 million verdict resulted in only a $100,000 judgment against the defendants, he said, of which there could be as many of 50 in a single case. “If that’s the law, the lawyers don’t want to try that case,” he said.
The search for solvent defendants eventually came to talc. The mineral is often found in the same rock formations as asbestos and manufacturers like J&J had periodically been accused of selling cosmetic talc contaminated with asbestos fibers, although the manufacturers denied it. Plaintiff experts initially downplayed the idea talc could cause cancer because defendants could cite the ubiquitous product as an alternate cause of disease. Dr. William Longo, another prominent talc expert, called the idea cosmetic talc contained asbestos “an urban legend” in 2002 testimony.
Plaintiff lawyers shifted their attention to talc in the 2000s and won their first verdict in 2013 when a federal court jury in South Dakota ruled for woman who blamed her ovarian cancer on Johnson’s Baby Powder but awarded no damages. In a court filing in the bankruptcy of its LTL Management unit in New Jersey, J&J said after that verdict plaintiff lawyers began spending as much as $4.5 million per month advertising for talc clients. They hit the jackpot in St. Louis, winning a $72 million jury verdict in 2016 and then $4.7 billion in a 22-plaintiff trial in 2018 (the verdict was later reduced to $2 billion).
The lawyers were helped by Reuters, which reported the claims of plaintiff experts – already widely available in the court record and other news coverage – in a 2018 article it described as an “investigation” alleging talc contained dangerous levels of asbestos and J&J knew it. Johnson & Johnson denies the allegations to this day and has tried to undermine plaintiff experts like Longo by showing how they mix various definitions of asbestos to confuse jurors about the nature of talc.
After mesothelioma was first diagnosed in the 1960s and linked to asbestos exposure, for example, government regulators enforced air-quality rules based on the rough dimensions of particles that could include asbestos fibers. Plaintiff experts cite those regulatory dimensions to claim talc particles, which can be long and thin but are many times larger than asbestos, are in fact asbestos. Once they have established asbestos in in talc, medical experts like Dr. Jacqueline Moline are free to testify that the asbestos another expert found caused a plaintiff’s disease.
“Once you get over the hurdle of establishing the talc has asbestos in it there are many experts out there on the plaintiff side comfortable saying there is no known exposure that is safe and if there was exposure it was the cause,” said Schachtman.
Plaintiff lawyers are counting on this theory – that any single asbestos fiber can cause fatal cancer – to convince jurors that talc is dangerous. It ignores both the fact humans inhale billions of asbestos fibers from the environment and numerous epidemiological studies that have failed to find higher cancer rates in workers in the talc industry, let alone consumers. The American Cancer Society website states any risk of ovarian cancer, if it exists at all, is “likely to be very small.” The society states: “No increased risk of lung cancer has been reported with the use of cosmetic talcum powder.”
The International Agency for Research on Cancer, a World Health Organization group that has also propelled litigation against Roundup, has concluded talc is “possibly carcinogenic.” A 2011 meta-analysis published in Environmental Health Perspectives found that across 18 studies there was a slightly increased risk of ovarian cancer in women with industrial exposure to asbestos. But the authors noted that only two of the 18 studies had pathological confirmation the women had ovarian cancer and another 20 studies found no link.
Even if experts like Longo are correct and talc is contaminated with asbestos fibers, the exposure to a habitual user of cosmetic talc would be tiny compared to a textile worker or insulation installer. Plaintiff experts have proposed another theory – that talc particles make it to the ovaries through “retrograde movement” – but the results are disputed.
Now that J&J has made its effort to settle talc litigation, plaintiff lawyers who transformed a handful of medical studies into a multibillion-dollar tort face some tough decisions. If they believe their experts, even the tiniest exposure to cosmetic talc can cause cancer and J&J only removed the product from the market in 2021. Since most asbestos-related cancers take decades to develop and virtually everyone diagnosed with mesothelioma or ovarian cancer can claim some exposure to talc, every one of them could have a multimillion-dollar claim.
Johnson & Johnson has convinced lawyers representing thousands of plaintiffs to support its $10 billion plan to resolve claims in bankruptcy court. But lawyers representing mesothelioma claimants, whose cases can be worth millions apiece, are fighting the effort. Will the plaintiff experts switch again and downplay talc as a cause of cancer in order to unlock billions of dollars in payments for current claimants and their lawyers? It’s happened before.