A California jury has rejected claims that Johnson & Johnson and its talc supplier were responsible for the deadly cancer of a woman who blamed her illness on breathing asbestos fibers from contaminated body powders.
On a 9-3 vote, the jury Thursday in Pasadena absolved J&J of negligence in the sale of Johnson’s Baby Powder and another talc product, Shower to Shower. The Los Angeles Superior Court jury also cleared Imerys Talc America, Inc., a supplier of talc to J&J.
The trial was the first against J&J alleging that asbestos-contaminated talc powders caused mesothelioma.
The case was brought by Tina Herford, who suffers from mesothelioma, an asbestos-related cancer, and her husband, Douglas Herford. Their lawsuit claimed that during the 35 years she used the powders–first as a baby, when she was dusted by her mother–they contained traces of asbestos.
Herford, 61, of Camarillo, Calif., was diagnosed last year and, according to testimony in the four-week trial, is likely to survive for just a few more months. Mesothelioma, an almost invariably fatal cancer of the lining of the lung or abdomen, is strongly linked to asbestos exposure. But Herford had received aggressive radiation treatments for breast cancer in 1998, and therapeutic radiation is also known to raise the risk of mesothelioma. Lawyers for J&J and Imerys argued that the radiation treatments–not use of talc powders–had caused her mesothelioma.
The trial was the first against J&J alleging that asbestos-contaminated talc powders caused mesothelioma. Such cases are distinct from the flood of lawsuits against J&J by ovarian cancer victims who say they contracted the disease from use of the company’s talc powders for feminine hygiene. More than 5,000 talc-ovarian cancer cases are pending in courts across the country, most of them in Missouri, California and New Jersey. In the few ovarian cancer cases tried so far, plaintiffs blamed the talc itself–not asbestos–as the cause of the ovarian cancers. Juries found J&J liable in five of six trials, and awarded huge damages. But two of those verdicts have been reversed and the other three appear likely to be stricken on appeal.
“It is a matter of time before juries begin holding them to account. We just missed on the first one.” — Chris Panatier
“We are pleased with today’s verdict and believe that the dismissal of talc lawsuits in New Jersey and verdict reversals in Missouri and California have forced plaintiff attorneys to pivot to yet another baseless theory,” said J&J spokeswoman Carol Goodrich in a prepared statement. “Johnson’s Baby Powder has been around since 1894 and it does not contain asbestos or cause mesothelioma or ovarian cancer,” she said.
“Imerys commends the jury for following the science that establishes the safety of our talc,” a company spokeswoman said. “Imerys sympathizes with anyone suffering from cancer, but there is no evidence that talc caused Ms. Herford’s cancer.”
“Even when I disagree with a jury’s decision, I often understand their perspective,” said Chris Panatier, lead attorney for the Herfords. “J&J is still selling contaminated baby powder,” he said. ”It is a matter of time before juries begin holding them to account. We just missed on the first one.”
Talc, the softest of minerals, has been widely used in body powders and cosmetics, as a filler in capsules and pills, and even to polish rice and keep chewing gum from sticking to the wrapper. But talc deposits sometimes are contaminated by asbestos, which can cause fatal diseases in those who inhale its microscopic, lung-scarring fibers.
During the trial, the Herfords’ lawyers put in evidence internal documents from the 1950s, ’60s and ’70s that they said proved that J&*J’s talc supplies and even finished products were tainted by asbestos. But this information was never shared with consumers, the lawyers said. A plaintiff’s expert also testified that he found microscopic asbestos fibers in containers of J&J powders that were purchased from collectors or on eBay.
Defense lawyers disputed the findings, saying that in some cases positive tests for asbestos were not confirmed by follow-up tests. In other cases, they said, non-asbestos particles detected in talc had been wrongly classified as asbestos.
Dozens more talc powder-mesothelioma cases are pending against Johnson & Johnson and other talc suppliers and powder manufacturers.
Ed’s Note: This story was reported by FairWarning, a nonprofit news organization based in Pasadena that focuses on public health, consumer and environmental issues. Myron Levin is the editor of FairWarning.