$417 Million Verdict in Talc Powder Ovarian Cancer Case Negated by Judgment NOV

              

 

Eva Echeverria won a verdict of $417 million against Johnson & Johnson in August, 2017.   She had used the company’s baby powder daily in her genital area for more than 50 years beginning when she was age 11. In 2007 she was diagnosed with ovarian cancer. Her lawsuit claimed the company did not adequately warn consumers about talcum powder’s potential cancer risks although it knew of them for three decades. A California judge has now granted a judgment NOV (reversed the jury’s verdict because of insufficient evidence to support it), and granted plaintiff a new trial.

When a product causes potential health risks and the manufacturer knows or should know of those hazards, a duty arises for the manufacturer to warn of those perils. In this case, plaintiff needed to prove that the talc was more likely than not the cause of her ovarian cancer, and that Johnson & Johnson knew or should have known that talc probably would cause cancer.

Talc is widely used in cosmetics and personal care products to absorb moisture, prevent caking, and reduce friction. Its link to cancer is inconclusive. The World Health Organization classifies genital use of talcum-based body power as “possibly carcinogenic to humans.” The American Cancer Society (ACS) says more research is needed. The ACS reports that research examining a possible link between talcum powder and ovarian cancer is mixed, with some studies showing a slightly increased risk in women who used the product in their genital areas while other studies found no increased risk. The Federal Food and Drug Administration, the federal agency charged with minimizing risks associated with medical products among others, has been urged to require manufacturers of talc powders to warn of a potential link to ovarian cancer. However, it has declined to do so.

The jury’s award included $68 million for compensatory damages (an amount of money designated to reimburse plaintiff for losses caused by the defendant) and $340 million for punitive damages (money in excess of compensatory damages awarded only when a jury determines defendant acted with malice, meaning a willful and conscious disregard of the rights and safety of others).

In reversing the verdict, the judge determined that the evidence was insufficient to prove the necessary link between talc and cancer, and therefore insufficient to determine that Johnson & Johnson knew or should have known that talc was a probable cause of cancer. Thus, no duty to warn existed. Said the court, “. . . the best that can be said is that there was (and is) an on-going debate in the scientific and medical community about whether talc more probably than not causes ovarian cancer . . . .”

A Johnson & Johnson spokesperson said that the company sympathizes with women suffering from ovarian cancer but “. . . it is not caused by the cosmetic-grade talc we have used in Johnson’s Baby Powder for decades. The science is clear and we will continue to defend the safety of Johnson’s Baby Powder. “

The court noted that, if causation is proved on retrial, a $2 million compensatory award to plaintiff would be justified based on the following. Due to the cancer, Echeverria underwent surgery and multiple rounds of chemotherapy, including clinical trials, and “endured their side effects for ten years” including complications and multiple hospitalizations. She had pain from tumors that developed since her surgery. She was hospitalized with sepsis, a serious condition resulting from an infection, and can lead to death. She feared death and experienced great sadness at the potential of not seeing her young grandson grow up. Her 16 year old daughter took on the responsibility for plaintiff’s care, necessitating a delayed her high school graduation.. This too caused plaintiff much sorrow.

While civil actions typically take numerous years to complete, Echevarria was given an expedited trial (preference in court scheduling) due to her medical situation and expected death.

More than 1,000 similar cases have been filed. Many are still pending. Of the completed cases, some plaintiffs won tens of millions of dollars, some won much lower amounts, and other cases have been rejected by judges who, like the trial judge in Echeverria’s case, ruled that the plaintiffs’ lawyers did not present sufficient evidence linking talc to ovarian cancer.

For more information see Echeverria v. Johnson & Johnson et al, 2017 WL 4780572 (Ca. Super., 2017).

DISCUSSION QUESTIONS:

  1. Under what circumstances should a judge grant a judgment NOV? Under what circumstances should such a judgment not be granted?

  2. What additional evidence would plaintiff need to prove her case at a retrial?

  3. What factors might have led to the varying outcomes in cases seeking recovery for ovarian cancer allegedly caused by talc powder?

  4. How might the varied outcomes impact Johnson and Johnson’s willingness to settle the remaining cases?