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Products Liability Against Johnson and Johnson

The following post is part of our Law Student Blog Writing Project, and is authored by James Haney, a Juris Doctor student at NKU Chase College of Law, Northern Kentucky University.

Products Liability Against Johnson and Johnson:

So Much for “No Tears”

At some point or another, virtually everyone has used a Johnson and Johnson product, be it on themselves, their children, or, in the case of one of my family members, their pets. With their famously advertised “No Tears” promise, Johnson and Johnson is one of the mainstays of the personal hygiene world. In fact, from December 28, 2014, to December 31, 2015, Johnson and Johnson (JNJ from here on, as is their stock moniker) saw a net profit of $48,538,000,000. That’s enough to make me double check the figures a few times over. The past five (5) years have been generally the same, within a couple percentage points of each other. This is an important figure to keep in mind throughout the rest of this post.

talcum-powderUnfortunately, massive profits do not necessarily a moral company make. It has recently been discovered that, since the 1970s (please keep in mind, this is now nearly 50 years), JNJ has known that the talcum powder it uses in some of its products posed a cancer threat to its users. I would not describe such a practice as “customer-centered.” Parallels have been drawn between JNJ and the major tobacco companies. To give a sort of comparison, that would be like if Churchill had switched sides during the war: once thought of as great and trustworthy, now killing people and hiding the evidence.

That last bit may come across as a bit dramatic, but it’s unfortunately accurate. The facts were actually exposed only as recently as Monday, May 2, 2016, as I write this on May 11th. That same day, a jury awarded a plaintiff against JNJ $55 million in damages. The plaintiff, Gloria Ristesund of Sioux Falls, South Dakota, was diagnosed with cancer in 2011. It was discovered, through the course of the trial, that Ristesund had used JNJ’s talc-based products for around 40 years. The repeated exposure to the product caused her to have to have a full hysterectomy, and talc was discovered on her ovaries. The talc was, of course, traced back to the JNJ product with which she had become so well acquainted.
This was the second eight-figure award given by juries to plaintiffs who accused JNJ of knowing about the risks posed by the talc powder in its products. Jacqueline Fox of Birmingham, Alabama, was issued an award of $72 million, and in the same courthouse, no less. Fox had used the JNJ’s baby powder for 35 years, and was diagnosed with ovarian cancer in 2013. She died last year.

Currently, JNJ is facing approximately 1,200 lawsuits in relation to its talc-based products. The allegations include fraud, negligence, conspiracy, and failure to warn. Conspiracy? Absolutely. Information has been released which shows that JNJ not only knew about the risks posed by its products, but actively sought to hide and manipulate the information, which included distorting scientific papers in order to prevent talc from being classified as a carcinogen. This was in concordance with its own lobby, the Talc Interested Party Task Force (TIPTF), which seems entirely too specific.

According to a recent study published in Epidemiology, women who used talc on their genitals were a full one-third more likely to be diagnosed with ovarian cancer. The study was conducted (in a very simplistic overview of it) by asking two separate groups of women about their use of talc-based products. 2,041 women with ovarian cancer, and 2,100 women without ovarian cancer were interviewed. A woman was found to be thirty-three percent more likely to be diagnosed with ovarian cancer just by using talc on their genitals. While a product giving people cancer is clearly a bad thing, that is not what managed to get JNJ hit with such massive punitive damages. No, it was the cover-up that brought those massive numbers falling on the head of the company.

As a brief lesson, damages come in two flavors: compensatory, and punitive. Compensatory damages are designed to make a person “whole.” It boils down to replacing loss with money. This can take the form of covering medical costs, paying for loss of enjoyment of life, covering potential earnings lost, or even covering emotional damage or loss of a loved one. Obviously, no amount of money can bring a person back, or truly replace anything lost, but it is the best the courts are able to do. Punitive damages, on the other hand, are designed to punish. They go well and beyond the compensatory damages awarded, and are intended to leave a mark. A company like JNJ would have no problem covering the medical expenses of a cancer patient, especially in Fox’s case, where she only lived for four (4) years after being diagnosed. $72 million, though, may be felt; certainly in the realm of PR, if not in the wallet.

Juries tend to look down on the practice of covering up potentially life-threatening problems with products. A juror in the case of Gloria Ristesund gave his reasoning for awarding the amount of damages given: “They tried to cover up and influence the boards that regulate cosmetics. They could have at least put a warning label on the box but they didn’t. They did nothing.”

It bears repeating that JNJ has known about the risk posed by talc since the 70s. That is mind-bogglingly irresponsible. Various studies in 1971, 1982, and 1993, specifically, along with roughly twenty-two (22) other studies, have shown a causal link between talc and ovarian cancer. Again, this shows nothing less than an alarming level of negligence on the part of JNJ. Negligence, in a legal sense, has five (5) factors: 1) duty, 2) breach of duty, 3) causality, 4) scope of liability, and 5) damages. Every company has a duty to its customers to ensure, as best as possible, a safe product. JNJ clearly breached this duty by not only knowing about the dangers of its products, and continuing to put them on the market, but actively hiding the dangers. That breach has caused at least two women, according to the courts (and thousands more, allegedly, as these cases are still pending), to suffer from complications arising from continued use of the products. This direct causation is well within the scope of JNJ’s breach, and has caused massive damage to those affected.

TIPTF has been the primary actor in the conspiracy and covering of facts. As stated by the group, their primary objective was to defend companies who use talc in their products, and prevent regulation of the products in the industry. JNJ was the primary contributor to the TIPTF. According to various lawsuits, the TIPTF rigged scientific studies regarding talc, and went so far as to alter reports prior to submission to government agencies. In 2005, TIPTF even threatened to sue, in order to prevent talc from being labeled as a carcinogen. The Canadian government actually acted back in 2006, classifying talc as a D2A substance. For the sake of comparison, asbestos is also listed as a D2A.
A dangerous product is not necessarily the fault of a company. Early on, tobacco companies were unaware of the dangerous effects of smoking. Not disseminating knowledge that doesn’t exist is not worth reproach. However, hiding known dangers, while marketing a product as perfectly safe for anyone, is reprehensible. As of now, there are no known cancerous side-effects of talc when used by men. JNJ has lost in the court of law twice, now, and will likely continue to do so. However, its loss in the court of public opinion will almost certainly prove to be its most costly. This should act as a lesson to other companies: hidden dangerous will always be found, and covering them up can do nothing but exacerbate the problem.