In the October edition of the Disease Review we reported that in a US decision Eva Echeverria received an award of damages against Johnson & Johnson in the sum of $417m, having alleged that she developed ovarian cancer as a result of using talcum powder. Since our article the Los Angeles Superior Court reversed the decision and ordered a retrial. J&J has now begun facing claims in the United states for mesothelioma, which is alleged to have been caused by asbestos in talcum power. The court has rejected those allegations and has ruled in favour of Johnson & Johnson.

The ovarian cancer claims

The jury at the trial awarded the claimant $417 million for her ovarian cancer on the basis that it was found J&J was negligent in failing to warn of the risks of cancer. Much of the case focused on the epidemiological studies in to the correlation between use of talcum and ovarian cancer. Shortly after the initial judgment was granted in the claimant’s favour she died of the cancer which had plagued her.

Since the initial verdict and order that J&J pay $417 million, the matter proceeded to an appellate court where the Los Angeles Superior Court Judge, Maren Nelson reversed the jury's rulings and ordered a new trial on the basis that there had been an “insufficiency of the evidence as to causation…" and also ruled that there had been an error in law occurring at the trial and misconduct on the part of the jury which led to excessive damages. The error in law was the defendant made an application for ‘judgment notwithstanding verdict’ akin to an application for summary judgment, which was dismissed. The superior court was also critical of the lack of proper evidence of causation. A copy of the appellate judgment is available here.

The matter will be reheard in the new year.

The mesothelioma claim

J&J has also begun to face claims that its talcum powder contained asbestos. In November of this year the Los Angeles Superior Court heard the claim of Tina Herford et al. v Johnson and Johnson et al. in which the plaintiffs alleged that talcum powder contained asbestos and had resulted in the development of mesothelioma.

As is common in the US the matter was heard by jury and it was found that J&J had not been negligent either in the manufactural design of its talcum powder or shower products. It was also found that J&J did not fail to warn consumers that its products caused mesothelioma.

As part of the litigation J&J provided expert evidence from a geologist who gave evidence that the claimant had inaccurately tested samples of the talcum powder and had presented harmless minerals as asbestos.

Commentary

Given that this litigation continues to take place in the United States there won’t be any immediate impact in the UK but there is no doubt that claimants and insurers alike will continue to watch and see the way in which these claims progress as a litmus for what might happen in the UK.

While a 2013 study which pooled and examined eight research papers on the risks to women of cancer form using talcum powder, found an increased risk of between 20% and 30% for ovarian cancer (link here).

The scientific investigations in to whether talcum is carcinogenic are currently not conclusive. Notwithstanding that, it seems that J&J had some serious discussions about the right several years before any litigation. An internal memo from a medical consultant employed by J&J was relied on in the litigation which stated that “anybody who denies [the] risks” between “hygienic” talc use and ovarian cancer would be publicly perceived in the same light as those who denied a link between smoking cigarettes and cancer.” This is the sort of material which will keep this litigation in the limelight until either side of the dispute can compile a compelling case on causation.