WASHINGTON (AP) – Johnson & Johnson are seeking Supreme Court review of a $ 2 billion verdict in favor of women who claim to have developed ovarian cancer while using the company’s talc products.
The case includes a range of high profile lawyers, some in unusual alliances, including former independent lawyer Kenneth Starr, who represents the women who have sued Johnson & Johnson. The country’s largest trading groups back the company, and a judge’s father is also making an appearance due to his long association with the cosmetics and personal care trade group.
The court could say as early as Tuesday whether it will engage.
At the root, Johnson & Johnson argues the company did not get a fair answer in a lawsuit in Missouri state court that resulted in an initial verdict of $ 4.7 billion in favor of 22 women who used talcum products and developed ovarian cancer.
A state appeals court cut more than half of the verdict money and eliminated two of the plaintiffs, but also upheld the outcome of a trial in which lawyers for both sides presented testimony experts duel over whether the company’s talc products contain asbestos and asbestos. talcum powder can cause ovarian cancer.
The jury ruled in favor of the women on both points, after which Judge Rex M. Burlison wrote that the evidence at trial showed “particularly reprehensible conduct on the part of the defendants.”
The evidence, Burlison wrote, included that the company knew there was asbestos in products for mothers and babies, knew of the potential harm, and “warped the safety of these products for decades.”
Nine of the women died of ovarian cancer, the plaintiffs’ lawyers said.
Johnson & Johnson denies its talcum products cause cancer and called the Missouri trial verdict “at odds with decades of independent scientific evaluations confirming that Johnson’s baby powder is safe, is not not contaminated by asbestos and does not cause cancer. ” The company is also the manufacturer of one of three COVID-19 vaccines approved for use in the United States.
Health concerns related to talcum powders have sparked thousands of lawsuits in the United States by women who claim the asbestos in the powder caused their cancer. Talc is a mineral similar in structure to asbestos, which is known to cause cancer, and they are sometimes obtained from the same mines. The cosmetics industry agreed in 1976 to ensure that its talc-based products did not contain detectable amounts of asbestos.
Last year, a US government analysis of 250,000 women found no strong evidence linking baby powder to ovarian cancer in the largest analysis to examine the issue, although the lead author of the study described the results as “very ambiguous”.
The results were called “broadly reassuring” in an editorial published with the study in January 2020 in the Journal of the American Medical Association. The study was not definitive, but more conclusive research is probably not feasible as a decreasing number of women use powder for their personal hygiene, according to the editorial.
A few months later, the company announced that it would stop selling its iconic Johnson’s talc-based baby powder in the United States and Canada, citing a drop in demand due to what it called misinformation about health problems.
The disputed link between cancer and talc is not really part of the High Court case. Instead, the company said it shouldn’t have been forced to defend itself in a single lawsuit against allegations by women from 12 states, with different backgrounds and with varying histories of using Johnson products. & Johnson containing talc.
The $ 1.6 billion in punitive damages are irrelevant and should be reduced, the company also argued in a brief written by Neal Katyal, a Washington lawyer who aligns with progressive causes and also represents client companies. Katyal, who served as the senior acting Supreme Court attorney for a time in the Obama administration, declined an official interview.
The United States Chamber of Commerce and professional associations of manufacturers, insurers, and the pharmaceutical industry are among the trade organizations supporting Johnson & Johnson’s appeal.
Tiger Joyce, president of the American Tort Reform Association, pointed to the time it took for the trial judge to read his instructions to the jury as an indication of the unfairness of the trial against Johnson & Johnson.
“When an accused faces a case where it takes more than five hours for the judge to read the jury’s instructions to the jury, it suffices to ask what are we doing here,” said Joyce, whose group generally supports them. limits of liability claims. .
Starr said in an interview with The Associated Press that none of Johnson & Johnson’s legal arguments were worth the court’s time. “As the jury found and as each judge reviewing this six-week record concluded, Johnson & Johnson’s conduct for decades was reprehensible,” Starr said.
Besides Starr, other members of the women’s legal team are former Attorney General John Ashcroft and Washington attorneys David Frederick and Tom Goldstein, frequent attorneys before the Supreme Court.
Judge Brett Kavanaugh worked for Starr when he investigated the affair between President Bill Clinton and Monica Lewinsky, which led to Clinton’s impeachment.
Another name that appears in some documents in the case is E. Edward Kavanaugh, who was the longtime president of the Cosmetics, Toiletries and Perfumes Association and is the father of justice.
Kavanaugh’s group fought efforts to list talc as a carcinogen or to put warning labels on talc products. Kavanaugh is retired and the group is now called the Personal Care Products Council.
The ethicists contacted by the PA said they had seen nothing that would justify justice withdrawing from the case.
Already, a judge will almost certainly not participate. Judge Samuel Alito reported last year that he owned $ 15,000 to $ 50,000 in Johnson & Johnson stock. Federal law prohibits judges from sitting in cases in which they have a financial interest.
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