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Big talcum verdicts stemmed from lawyers’ deep data dive

Johnson's Baby powder.  February 26, 2014.  Photo: Austin Kirk via Wikimedia Commons
Johnson’s Baby powder. February 26, 2014. Photo: Austin Kirk via Wikimedia Commons

By Amanda Bronstad, From The National Law Journal

When attorney Ted Meadows first heard about a 2013 verdict finding Johnson & Johnson negligent for a woman’s ovarian cancer, he “put the word out” that he wanted to start filing lawsuits over talcum powder. Although the jury didn’t award damages, its decision on liability caught his attention. The first person to call him was R. Allen Smith, the plaintiffs lawyer who got the verdict.

For more than 30 years, medical researchers had studied whether there was a link between talcum powder use in the genital area and ovarian cancer. The answer? It depended on whom you asked.

Meadows, who had just finished handling cases brought by women alleging the hormone replacement drug Prempro caused their breast cancer, wanted to take a closer look at the studies, which he said generally reported a 30 percent increased risk.

“Oftentimes, lawyers shy away from those types of cases because they want to see something closer to a 100 percent increased risk,” he said. But Meadows said he was able to “dig a little deeper,” examine the data behind the studies and find that when women used the product for long periods of time the risk of ovarian cancer was in the 100 to 300 percent risk range.

His digging paid off. This year, juries in two separate trials in St. Louis found that Johnson & Johnson had failed to warn its customers that using its baby powder and Shower to Shower product for feminine hygiene might cause ovarian cancer. The awards were substantial: $75 million on Feb. 22 to the family of a woman who died from the disease and $55 million to a survivor on May 2.

The awards were also big news among the plaintiffs bar. Meadows, a principal at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, and Smith, a solo practitioner in Ridgeland, Mississippi, were asked to host a plaintiffs bar conference on May 17 in Charleston, South Carolina, solely about the litigation. “I’ve been on the phone quite a bit,” Meadows said.

Johnson & Johnson’s lawyers, who have denied the company’s liability, have been quick to criticize the plaintiffs lawyers. After the latest verdict, Gene Williams, a Houston partner at Shook, Hardy & Bacon, said in an email: “The evidence presented to the jury misrepresented and distorted the science regarding talc and ovarian cancer.” Johnson & Johnson declined to comment for this story.

In a filing this month with the U.S. Securities and Exchange Commission, the company estimated about 1,400 people have claims over talcum powder, most in about a dozen cases in the same Missouri state court as this year’s verdict—a venue termed plaintiff-friendly by tort reformers. (Johnson & Johnson unsuccessfully has tried to transfer or remove the talcum powder cases to federal court.) Another 140 are filed in state courts in New Jersey, where Johnson & Johnson is headquartered.

At the same time, Johnson & Johnson is defending a suit filed in 2014 by the Mississippi Attorney General. The lawsuit, also naming Valeant Pharmaceuticals, which purchased Shower to Shower in 2012, alleges that they intentionally targeted minority women by failing to warn about ovarian cancer risks on talcum powder product labels.

The company in its SEC filings said it expects the number of cases to rise. So does Meadows.

“I do think there are a lot of lawyers out there finally ready to commit and get in and prosecute cases,” Meadows said.

At both trials, Smith and Meadows were armed with more than 20 studies they claim link the genital use of talcum powder to ovarian cancer. They also told jurors about internal documents they say prove that Johnson & Johnson had been aware of the link for decades but failed to warn its customers.

“We presented an even better science case than Allen was able to put on in Berg, and a better liability case because from looking at the internal documents we have a better feel of what exactly went on over the decades,” Meadows said, referring to the 2013 trial on behalf of Deane Berg.

In the most recent trial, Johnson & Johnson lawyer Christy Jones of Butler Snow in Ridgeland, Mississippi, told the jury that the studies cited by plaintiffs lawyers showed only “weak associations” and were “at best inconsistent,” according to video coverage by Courtroom View Network. The studies were based on statistics, not clinical data, and were “just looking at the same data multiple times,” she said. Johnson & Johnson’s lawyers have cited two other studies they claim are more accurate.

In making their winning arguments, Meadows and Smith have relied much on their own expert, a Harvard Medical School professor whose 1982 study found that women had a 92 percent increased risk of getting ovarian cancer if they regularly used talcum powder. Both women in the Missouri trials, Jacqueline Fox and Gloria Ristesund, had used the products for decades.

The lawyers also had more than science up their sleeves: “One thing that gives the case its best legs is not simply the science but also the documents that go with it,” said Mark Lanier of The Lanier Law Firm in Houston, who has filed cases on behalf of 150 women. “There are some pretty damning documents at Johnson & Johnson.”

Smith told the jury in the opening statement of his second trial, according to Courtroom View Network video, that internal documents would show Johnson & Johnson knew of the potential litigation risks associated with talcum powder and “wielded corporate influence” to fight regulatory agencies. “The evidence in this case will show that the defendants put profit over human life and the human lives of women,” he said.

Jones, in the same trial, countered that several regulatory agencies, including the U.S. Food and Drug Adminis­tration, have been unable to find a ­definitive link, according to the Courtroom video. She tried to portray the documents in a different light: Johnson & Johnson was monitoring the science, meeting with researchers and doing its own research.

In the end, juries came up with $112 million in punitive damages against Johnson & Johnson.

The company has vowed to appeal both verdicts.

Photo: Austin Kirk via Wikimedia Commons

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