Potential Class Action: Baby Powder Injuries

Two class-action lawsuits were filed against Johnson & Johnson in 2014 claiming that the company’s talcum powder products have been causing ovarian cancer in women. The two products the lawsuit cites are Johnson’s Baby Powder and Shower to Shower. One of the class-actions is being filed in California, and the other in Illinois.

The class-actions come on the heels of a victory by Plaintiff Deane Berg in a U.S. District Court in South Dakota in 2013. (Berg v. Johnson & Johnson Consumer Cos., 983 F. Supp. 2d 1151). In Ms. Berg’s suit, the jury found that Johnson & Johnson was negligent in failing to warn that the talcum-based products were linked to ovarian cancer.

Berg used four types of experts in her case; an epidemiologist to testify that talc use in the genital area has a strong causal association with ovarian cancer, a toxicologist who testified about talc’s immunotoxic potential and how such potential relates to ovarian cancer, an expert in microscopy who examined tissue taken from Berg’s reproductive system and found talc particles to be present, and lastly two experts in the field of forensic human factors and warnings, who discussed whether it would have been reasonable for Johnson & Johnson to warn its consumers or provide a reasonable alternative to using talc in its products.

The California class action was filed by a woman named Mona Estrada in the Eastern District of California on April 14, 2014. Ms. Estrada, who has not developed ovarian cancer herself despite using Johnson & Johnson talcum-based products from 1950-2013, brought charges against Johnson & Johnson for violating consumers’ legal remedies, violating the Unfair Competition law and business and professions code, negligence, and breach of implied warranty. Ms. Estrada’s claim cites research dating back to 1961. This showed the harmful effects of talcum powder, as well as a list of studies linking talc to ovarian cancer. Because of the prevalence of these studies, Ms. Estrada claims that Johnson & Johnson knew of, or should have known of the dangers of its powder products, and failed to warn its consumers about these dangers.

The Illinois class action was filed by Barbara Mihalich in the Southern District of Illinois. Just one month after the California suit was filed. Ms. Mihalich’s suit claims that Johnson and Johnson violated the Illinois Consumer Fraud and Deceptive Business Practice Act. In addition, it profited unjustly from its talcum powder products. Like Ms. Estrada, Ms. Mihalich has also not been diagnosed with ovarian cancer.

According to cancer.org, a website run by the American Cancer Society, the causation between the talcum powder and ovarian cancer is not definitive up to this point. It has been suggested that talcum powder might cause ovarian cancer if it travels to the ovary. However, lab studies have shown mixed results. While some studies have found a slightly increased risk of cancer, others have failed to find any causal link. Case-control studies, on the other hand, have found a higher likelihood of causation. However, these type of studies begin after the subject has already been diagnosed with the cancer. As such they are highly dependent on the person’s memory of talcum powder use, and can be biased for this reason.

Because of this uncertainty, experts will play a pivotal role in these class-action lawsuits. The party that can provide the best testimony to the jury regarding the amount of causation between these products and ovarian cancer will likely find themselves with a favorable verdict.