The United States Supreme Court (SCOTUS) has rejected Johnson & Johnson’s (J&J) challenge of a $2.1 billion judgment awarded to 20 women who brought product liability claims against the company for its talc-based powders.
The plaintiffs of the 2015 lawsuit alleged that these J&J products contained asbestos, that the multinational corporation knew about the asbestos and concealed this information, and that the talc products caused the plaintiffs’ ovarian cancer. In 2018, a Missouri jury found J&J liable and awarded $4.7 billion to the plaintiffs. J&J appealed the decision, which was ultimately upheld by a Missouri appeals court in 2020. However, the court reduced total damages to approximately $2.1 billion.
Refusing to concede, J&J petitioned SCOTUS to hear the case, claiming unfairness in the Missouri court proceedings. SCOTUS decided not to hear the case, meaning the $2.1 billion verdict stood.
No dissenting opinions were written in the judgment, however, Justice Samuel A. Alito, Jr. and Justice Brett M. Kavanaugh recused themselves from the decision to hear J&J’s case. Alito’s family owns J&J stock, and Kavanaugh’s father, a cosmetic-industry lobbyist, had lobbied against talc cosmetic products warning labels.
A History That is Catching Up
Mass tort attorney Mike Papantonio, of Levin Papantonio Rafferty, spoke with RT Network about the SCOTUS decision during an “In Question” video segment.
Papantonio’s firm represents many J&J talcum powder plaintiffs, and Papantonio has been fighting the corporate Goliath for years. He explained that J&J has had a long, blemished history of apathy toward its customers, as he outlined the company’s timeline of greed—beginning in the 1800s when J&J began selling baby powder to women, always touting the product’s “purity and safety.”
As early as the 1950s, the company had become aware of talc’s potentially harmful effects on the female reproductive system, Papantonio said. When the 60s rolled around, J&J learned that their powder’s talcum contained asbestos—a known carcinogen. “Everybody knew it then, everybody knows it now,” Papantonio stressed.
“And the timeline gets even uglier from there,” he said, adding that in the 70s, research had uncovered talc deeply embedded in ovarian tumors. This prompted real concern that talc-based products used for feminine hygiene could find its way into the ovaries and cause cancer. “[J&J’s] own scientists were telling that in the 1970s, and [J&J] ignored it,” Papantonio said. All the while, J&J and the talc industry had adopted an asbestos-testing methodology, but they still could not guarantee that the company’s products were free of asbestos.
J&J pulled its talc-based baby powder from U.S. and Canada markets in 2020. Rather than admitting to the product’s cancerous risks, the Johnson & Johnson press release cited reduced demand “fueled by misinformation around the safety of the product and a constant barrage of litigation advertising.”
For many women, including six plaintiffs who died before the SCOTUS’s decision, the distribution move came a day late and a dollar short. Ken Starr urged justices to consider the decades that J&J continued to produce, market, and distribute their talc products, knowing they contained a carcinogenic substance, and refusing to warn the public about the risks of its use.
“They could have protected customers by switching from talc to cornstarch, as their own scientists proposed as early as 1973,” wrote Ken Starr, the heavy-hitting counsel for the plaintiffs and former Whitewater prosecutor. “But talc was cheaper, and petitioners were unwilling to sacrifice profits for a safe product.”
It’s a New, Darker Day for Unethical Corporations
This sketchy history had to be factor for SCOTUS as it considered J&J’s petition for an appeal. “The string of cases that J&J is involved in right now is overwhelming,” Papantonio remarked, giving a nod to a whole universe of lawsuits the company faces for product safety and marketing tactics for medical devices, drugs, and alleged facilitation of the nation’s opioid addiction epidemic.
“To suggest that, gee whiz, the punitive damages [in the talc ovarian cancer lawsuit] were too high is ridiculous,” Papantonio asserted. “It’s no surprise that the Supreme Court did exactly what they should have responsibly done.”
The SCOTUS decision marks a turn in what has been a long-lived culture of corporate favoritism in the country, according to Papantonio. He said that, although for years, J&J considered itself “bulletproof” due, in large part, to their easy access to Washington.
But Papantonio sees that times are changing. “A jury doesn’t simply turn their back to a corporation and believe that a corporation always has the best interest of consumers at mind,” he said. “We’re seeing a major shift here.”