A jury in Brunswick, New Jersey (NJ), in early April 2018 awarded a married couple $37 million in their lawsuit against talcum baby powder product manufacturer Johnson & Johnson and its supplier of talc. The jury apportioned 70 percent of the award to Johnson & Johnson, and 30 percent to co-defendant Imerys Talc America, which mined talc that was used by J & J in baby powder. The compensatory damages were awarded to Stephen Lanzo III and his wife, Kendra Lanzo representing the jurors’ decision that Johnson & Johnson failed to warn the 47-year-old man about mesothelioma-causing asbestos in the personal care baby powder products he had used throughout most of his adult life. Under New Jersey law, the jury will further consider punitive (punishment) damages in a separate damages trial unless that issue is settled.
This is the first time that a jury has linked asbestos in talc-containing J & J baby products to the development of mesothelioma. Other cancers have been repeatedly connected to the talc mineral fibers in products like J & J Shower to Shower and Baby Powder, in particular ovarian cancer.
In October 2016, my Virginia dangerous and defective product attorneys and I commented on a jury in St. Louis jury awarding a little over $70 million to a woman who was dying from ovarian cancer she attributed to decades of daily use of Johnson & Johnson talcum powder products. Evidence presented by the plaintiff’s lawyers at that trial convinced jurors that the company knew since the middle of the last century that its talcum powders contained measurable amounts of asbestos yet failed to alert consumers of this cancer risk.
Cases brought on the grounds that a product manufacturer failed to meet its duty to warn must establish several facts. These include
- The company knew about a risk to users.
- The risk was more than negligible.
- Having the risk become a reality would inflict serious injury, incapacitating illness or death.
- The company owed consumers a duty to protect by virtue of making, marketing, or selling the dangerous product.
- The illness, disability or death resulted from the plaintiff’s use of the product and not some other cause.
Companies named in failure to warn cases will challenge each of these contentions and others. For instance, during the trial in New Jersey, Johnson & Johnson told jurors that that the man who developed mesothelioma had lived in a home that needed to have asbestos removed from its basement. The company also argued that the man had attended an elementary school that contained asbestos insulation. Jurors considered evidence of the hundreds if not thousands of times Mr. Lanzo used baby powder in his personal space, as opposed to possible exposures to asbestos in alternative locations. The Lanzos were ably represented by Moshe Maimon of Levy, Kronigsberg and Joseph Satterley of Kazan, McClain, Satterly & Greenwood.
Jurors dismissed the company’s defense theories of cancer causation and also determined that Johnson & Johnson would still have owed the man a warning about the possible dangers of using its talc-contained products. This strikes me as the correct conclusion.
As I wrote elsewhere about talcum powders,
The presence of asbestos is problematic because it is the single-known cause of mesothelioma. That cancer of the lining around the lungs and gut is always fatal. In addition, it is well known medically that talc can enter a person’s body through tiny abrasions. Talcum powder tainted with asbestos could, therefore, also be linked to cases of ovarian cancer, uterine cancer, and other cancers of the female urinary tract.
Thousands of lawsuits over the are currently in progress over the link between talc products and cancer. Johnson & Johnson is, so far, contesting each one. Jury verdicts like the ones in St. Louis and New Jersey show that the company can be held accountable for failing to protect consumers by issuing adequate warnings.