In the long-running legal battle over allegations that the talc in Johnson & Johnson’s baby powder is linked to ovarian cancer, the plaintiffs won a gradual victory Monday: A federal appeals court rejected J&J’s effort to bring more than 38,000 claims to a bankruptcy court.
Plaintiff Deborah Smith’s case was delayed for 15 months due to the attempted maneuvering, a legal strategy known colloquially as the Texas Two-Step. J&J’s approach was based on creating a subsidiary called LTL Management that could take responsibility for talc-related legal claims. Within days of its creation in 2021, LTL filed for Chapter 11 bankruptcy.
At that point, more than two years had passed since Smith filed his lawsuit. The Two-Step news, he said, felt like “a slap in the face.”
“If that was someone in your family, would they drag him out like this?” Smith said. “It’s almost like they’re playing a waiting game to see how many people will die or just stop fighting.”
Smith was diagnosed with ovarian cancer in 2003, she said, after her doctor discovered a tumor during a procedure to remove a uterine fibroid. She underwent two surgeries and three cycles of chemotherapy, she added, which caused her hair to fall out in clumps. She never grew back properly, so Ella Smith said that she still wears wigs.
According to Smith’s lawsuit, she used J&J baby powder as a feminine hygiene product to absorb sweat and keep her skin dry for more than 15 years. The lawsuit says Smith also used Shower to Shower, a talc-based product previously made by J&J, until 2003.
Smith’s lawsuit cites more than 25 published studies have a date back to 1982 evaluating a link between talc and ovarian cancer risk. The lawsuit alleges that nearly all of those studies document a particular risk associated with the use of talc in the genital area. The World Health Organization’s International Agency for Research on Cancer considers this use to be “possibly carcinogenic.”
Smith is seeking punitive damages, as well as compensation for medical bills and pain and suffering. Her cancer has been in remission since 2005, she said.
“Even though I’ve been cancer-free all those years, when I go to the doctor for any kind of test, I always wonder if they’ll find something wrong,” Smith said.
J&J has been facing mounting lawsuits for about a decade, with the plaintiffs alleging that their ovarian cancer, or mesothelioma, a rare cancer that affects the thin layer of tissue that lines the chest and abdomen, was caused by asbestos found in in the company’s baby powder. J&J has consistently denied that its talc-based products contain asbestos.
“We continue to support the safety of Johnson’s baby powder, which is safe, does not contain asbestos and does not cause cancer,” a J&J spokesperson said.
However, a 2018 Reuters investigation suggested that J&J knew that some of its baby powder was contaminated with trace amounts of asbestos since the 1970s. Reuters reported that it obtained J&J company memos, internal reports, confidential documents, and deposition and trial testimony. According to that investigation, the first known lawsuit linking ovarian cancer and J&J baby powder was filed in 1997. J&J denied to Reuters that it was aware of or concealed any talc-related safety issues and said independent testing had shown that its talc did not contain asbestos.
Dr. Arthur Frank, professor of environmental and occupational health at Drexel University, He said the protocols used in the independent asbestos tests that J&J relied on are not as sensitive as other detection methods.
“Depending on which lab you go to that does a more diligent search than the industry did, you can certainly find asbestos in a lot of products,” Frank said.
J&J withdrew its talc-based baby powder from the North American market in 2020 and switched to a formula that uses cornstarch. The company said it remained confident in the safety of its baby powder and that its decision was based on decline in consumer demand due to “misinformation about product safety”. J&J has said it will stop selling baby powder globally this year.
Talc and asbestos form together in nature, so raw talc collected through mining may contain asbestos fibers that can end up in talc-based products.
“There is no process that these manufacturers use that can remove asbestos from the talc materials that they are putting out,” Frank said.
Asbestos can cause several types of cancer, including mesothelioma and lung, larynx and ovarian cancer. No amount of exposure is considered safe. according to the Occupational Safety and Health Administration. People who are routinely exposed to asbestos fibers or are exposed to large amounts face a greater health risk, Frank said.
The WHO considers talc containing asbestos carcinogenic, but does not classify pure talc as a cancer-causing agent.
Mary Ann Bingheri, who lives in Houston, used J&J baby powder as a feminine hygiene product between 1968 and 2016, according to her lawsuit. Her suit says that she also used Shower to Shower.
bingheri said she was diagnosed with stage 3 ovarian cancer in 2008, which required a year of chemotherapy. The cancer returned in 2012, she said, prompting another year of chemotherapy treatments and about 35 rounds of radiation.
“The first time it was the size of a melon. The second time they found it, the tumor was the size of a larger golf ball,” she said.
Bingheri said she lost her job as an office manager after taking time off to undergo chemotherapy and surgery. Her lawsuit has also been delayed due to legal maneuvering by J&J.
“I have gotten to the point where I just want to see justice done for everyone who has been through this,” Bingheri said.
Leigh O’Dell, an attorney with the Beasley Allen law firm representing both Bingheri and Smith, said both lawsuits cite the same body of scientific evidence.
Bingheri said she now fears her two daughters, aged 37 and 48, may also be at increased risk of cancer, having used the powder as babies. For asbestos-related diseases, the time between exposure and symptoms can vary. from about 10 to 50 years.
In the recent decision of the appeals court, the judges determined that LTL Management does not have financial problems and has the resources to pay the claims, therefore the court dismissed the bankruptcy declaration of the subsidiary.
It was the first time an appeals court ruled against Texas’ two-step maneuver., according to legal experts. (The court did not invalidate the strategy, but ruled that J&J cannot use it in this case.)
In recent years, several other companies have tried similar strategies, Reuters reported, including construction giant Saint-Gobain and Koch Industries-owned manufacturing company Georgia-Pacific. The name of the scheme refers to the Texas law used to break up a defendant company to form a subsidiary that can absorb liability. J&J initially planned to award LTL $2 billion to compensate the current 38,000 claimants, as well as future claimants. according to Reuters.
A J&J spokesperson said LTL Management has initiated the process to transfer the claims to the bankruptcy court in good faith to benefit all parties. LTL website suggests that the cases could be solved faster that way, while “addressing each and every talc case individually could take thousands of years.”
“The Chapter 11 process brings everyone to the table to negotiate a settlement, provides the fastest and most efficient resolution for people with talc-related legal claims, and provides certainty for all parties,” the website says.
Neal Katyal, outside counsel for LTL Management and MSNBC Contributing Legal Analyst, said the company will seek another hearing before the full Court of Appeals for the Third Circuit, unlike the three-judge panel that ruled against J&J.
Lawyers representing plaintiffs in the lawsuits against J&J said the latest decision finally allows their clients to move forward toward trial.
“Our clients, once again, will have the opportunity to obtain justice in their lifetimes, either through arm’s length agreements negotiated with the threat of a jury trial over the heads of both parties or through a verdict. This right to a jury trial is guaranteed in the Seventh Amendment to the Constitution,” said Jonathan Ruckdeschel, an attorney representing plaintiffs in several talc cases.
O’Dell said she was “pleased to see the court reject a strategy that J&J employed essentially to get these cases out of places where they felt they weren’t succeeding and transfer them to bankruptcy court, where they felt they weren’t succeeding.” could control the environment.”
So far, J&J has faced $3.5 billion in verdicts and settlements in talc-related cases, Reuters reported. Of that, $2 billion came from a single lawsuit involving 22 women. An appeals court reduced that award from a initial verdict of $4.7 billion.
However, the courts have dismissed another 1,500 talc lawsuits against the company.
