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June 23, 2020 — On Tuesday, June 23, 2020, an appellate court in Missouri ordered Johnson & Johnson and a subsidiary to pay over $2 billion in damages to women who claimed that their ovarian cancers were caused by the company’s asbestos-containing talcum products, including its baby powder.  The court upheld that the company was aware of the cancer-causing asbestos in its products and did not warn consumers about it.  A record award of $4.69 billion in compensatory and punitive damages was made to the injured women in July 2018, but the appellate court’s Tuesday decision cut that amount by over half.  The court awarded $500 million in actual damages and $1.62 billion in punitive damages, reducing the original award of $550 million in compensatory damages and $4.14 billion in punitive damages after dismissing claims by some of the plaintiffs.

In its decision, the appellate court noted that Johnson & Johnson’s internal memoranda dating as far back as the 1960s stated that its talcum products consisted of potentially dangerous asbestos.  “A reasonable inference from all this evidence is that, motivated by profits, defendants disregarded the safety of consumers despite their knowledge the talc in their products caused ovarian cancer,” the court said.  The plaintiffs “showed clear and convincing evidence defendants engaged in conduct that was outrageous because of evil motive or reckless indifference.”

A spokeswoman relayed that Johnson & Johnson would seek further review of the recent ruling, defending its talcum products as safe.  “We continue to believe this was a fundamentally flawed trial, grounded in a faulty presentation of the facts,” Kim Montagnino, the spokeswoman, stated. “We remain confident that our talc is safe, asbestos-free, and does not cause cancer.”  Despite her apparent certainty, six plaintiffs died before the trial started and five more have died since the jury trial ended in 2018, according to a lawyer involved in the litigation.

Johnson & Johnson still has thousands of talcum product lawsuits to face. The company announced last month, May 2020, that it would cease the selling of baby powder made from talc in North America, though it would continue selling it elsewhere.

Johnson & Johnson has argued that unreliable testing methods are the reason why asbestos has been found in its products.  However, that does not explain the thousands of women with ovarian cancer and other victims of the company’s cancer-causing talcum products that have been sued.  As of March 2020, Johnson & Johnson has faced more than 19,000 lawsuits due to its talcum body powders. The company has lost some cases and won others, but it is appealing in almost every case it has lost.

In late 2019, Johnson & Johnson recalled approximately 33,000 bottles of baby powder after F.D.A. investigators reported asbestos in a bottle bought from an online retailer. Johnson & Johnson stated that its own tests cleared the baby powder after not finding any asbestos.

The company is fending off unrelated lawsuits as well as its talcum product lawsuits, such as lawsuits involving opioids. In August 2019, an Oklahoma judge ruled that Johnson & Johnson had oversold the benefits of the drugs while playing down their risks, and ordered the company to pay $572 million in damages.

“At some point, there is a reputational question that mass tort cases bring, and they’re going to have to be concerned,” said Carl Tobias, a law professor who teaches about product liability at the University of Richmond in Virginia.

“They’ve built their entire reputation on being a family-friendly product producer,” Mr. Tobias said. “The classic example of that is talc, and the injuries these women suffered are severe.”

Reference:  Rabin, Roni Caryn. “Women with Cancer Awarded Billions in Baby Powder Suit.” The New York Times, 23 June 2020, www.nytimes.com/2020/06/23/health/baby-powder-cancer.html

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Gayle Gerling Pettinga

Born and raised in Evansville, Gayle is a respected, experienced lawyer and a valued community leader. She graduated near the top of her class at Indiana University’s prestigious Maurer School of Law. She’s practiced law with one of the largest firms in Indianapolis as well as one of the largest pharmaceutical companies in the world. And that means she knows how big law firms and big companies think and how they operate – and she will put that knowledge to work for you.

Gayle has received numerous awards and honors including Martindale-Hubbell — Peer Review Rated: AV®, American Institute of Personal Injury Attorneys 10 Best Attorneys in Indiana for Exceptional and Outstanding Client Service, and YWCA Evansville 100 Years, 100 Women Honoree, 2011.

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