In September 2019, KCIC attended the DRI Talc Litigation Conference in Washington, DC. The conference had an incredible selection of speakers who provided great insight into the emerging talc litigation landscape. Since then, there have been several extremely large verdicts, as well as scientific studies, continuing to develop a better understanding of talc’s potential correlation to cancer.
As mentioned in one of our previous blog posts, a 2017 plaintiff verdict in Los Angeles was reversed in part due to the fact that the evidence linking talcum powder to ovarian cancer was inadequate. A recently published observational JAMA study collected data from over 250,000 women from four US analyses that took place between 1976 and 2017. In conclusion, the researchers found no statistically significant association between powder use and ovarian cancer.
In January of this year, Johnson & Johnson (J&J) settled a mesothelioma talc case in the middle of trial in California for around $2 million dollars. This settlement value is significantly less than the nuclear verdicts that have been previously observed. Prior to the settlement, the company’s defense was complicated by an FDA test performed on one J&J talc bottle that identified “sub-trace” levels of asbestos. In October 2019, J&J recalled one lot of the product as a measure of precaution. They then tested various bottles and found that the batch did not contain any asbestos. The discrepancy between the FDA and J&J’s findings further contributes to the conflicting information that is surrounding talc litigation.
The Wall Street Journal published an editorial about another verdict against J&J in New Jersey. In 2019, the first phase of this case resulted in a jury awarding $37.3 million in compensatory damages to four plaintiffs who contracted mesothelioma. On February 6, 2020, a new jury ordered J&J to pay $750 million in punitive damages to the four plaintiffs who claimed the use of talcum powders caused their cancer. However, the judge trying the case is planning to reduce the punitive award to $186.5 million. J&J has stated that they will appeal the verdicts from both phases of the trail. Thus far, every verdict that has been through the appeals process has been overturned.
In early March, the FDA released data from their year-long study which tested talc-containing cosmetic products for the presence of asbestos. The AMA Analytical Services, Inc. performed the blind study, and found that 43 of the samples tested negative for asbestos while nine samples tested positive. However, the FDA stated that “the occurrence of positive samples in the 2019 testing should not be interpreted as reflecting the overall frequency of positive samples in the marketplace”. While this study highlights that asbestos could be present in cosmetic products containing talc, it is still inconclusive as to what percentage of cosmetic talc products currently in market circulation legitimately contain asbestos.
Overall, the materializing trends in the talc litigation landscape include nuclear verdicts that eventually get overturned, a lack of scientific evidence supporting the relationship between talc and cancer, and inconclusion as to whether talc or asbestos within talc products is the catalyst for the observed cancer diagnoses. As the investigation continues to determine the relationship between talcum powder and various cancers, we will continue to monitor talc litigation along with emerging scientific research.
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Amanda Schultze has partnered with KCIC clients on various matters including litigation management, analysis of claims data, allocation of claims costs to insurance coverage, development of claims processing procedures and systems, and claims administration. Furthermore, she has assisted in the research and analysis involved in assessing the credit risk of insurance companies, which has provided the foundational support for expert testimony reports.Learn More About Amanda