More than 2,000 women who have sued health care giant Johnson & Johnson, claiming the company’s baby powder causes ovarian cancer, have won an important legal battle in ongoing multidistrict litigation in the U.S. District Court for the District of New Jersey.
At issue were documents subpoenaed by the plaintiffs that are currently in the possession of three companies (referred to as the “Third Parties”). Colgate Palmolive is a manufacturer of talcum powder products. Whittaker Clark & Daniels, and Brenntag Specialties, Inc. both distribute talcum powder. All three companies obtain talc from Imerys Talc, the company that supplies Johnson & Johnson. Imerys is one of the defendants in the MDL.
Over the objections of Johnson & Johnson, former U.S. District Judge Joel Pisano, who was recently appointed special master overseeing the discovery process for all the talcum powder lawsuit cases consolidated in the New Jersey court, has decided that the plaintiffs will be permitted to view select communications and documents from the three companies.
Specifically, the plaintiffs requested to see communications regarding foreign trade relations that took place between the Third Parties and several defendants named in the case. One of those defendants is the Personal Care Products Council, a trade association representing the cosmetic and personal care products industry. In 2005, the Council was reported to have lobbied heavily to defeat a California law (California Safe Cosmetics Act) that requires cosmetics manufacturers to label ingredients that appear on state or federal lists of chemicals that cause cancer or birth defects.
The women will also be able to see communications between the three companies and defendants Imerys Talc, Luzenac America, which was purchased by Imerys in 2011, and Rio Tinto Minerals, the former owner of Luzenac. Imerys, Luzenac and Rio Tinto Minerals have all mined talc used by Johnson & Johnson to make its baby powder products.
Talcum Powder Documents May Hold Key Evidence in Ovarian Cancer Link
The significance of the documents was explained in a November 6 letter from Judge Pisano to attorneys representing both sides of the dispute. Summarizing the plaintiff’s view, Judge Pisano wrote that these defendants and the talc industry have tried to influence “the development of the science of causation, testing, and regulation on talc.” Foreign regulators rely on domestic analysis of the science linking talcum powder to ovarian cancer and vice versa, and the FDA relied on reports sponsored by the defendants and the Third Parties. Plaintiffs believe that communications between the Third Parties and the defendants might well shed light on what the defendants knew about the link between talcum powder and ovarian cancer, and how the defendants planned to influence the scientific record to deny the association.
Johnson & Johnson objected to the women obtaining the documents, claiming they were irrelevant. Judge Pisano, however, sided with the plaintiffs, concluding that discovery of the talcum powder documents may lead to admissible evidence and approving the document request.
“Communications between the Defendants and the Third Parties have the potential to show Defendants’ knowledge of the risks of talc and/or its products, as well as any efforts by Defendants to sway the studies.” — Judge Joel Pisano, Special Master overseeing discovery, U. S. District Court, District of New Jersey
Efforts to influence or deny the scientific record may ultimately prove futile since the evidence linking genital talcum powder use to ovarian cancer continues to grow. Two recent studies, one published in the August 2017 issue of Epidemiology and the other in the July 2017 issue of the European Journal of Cancer Prevention, both reported statistically significant associations between genital use of talcum powder and ovarian cancer. Plaintiffs cite more than two dozen other studies that have found similar statistically significant associations.
“In general, there is a consistent association between perineal talc use and ovarian cancer.” — Penninkilampi, Ross; Eslick, Guy D, “Perineal Talc Use and Ovarian Cancer: A Systematic Review and Meta-Analysis,” Epidemiology, August 31, 2017
Plaintiffs also subpoenaed test results, correspondence, and documents from the Colorado School of Mines, which provided mine validation studies and raw material testing for the talc industry during the time period in question. The Colorado School also provided opinions on studies and papers that dealt with talc mining and talc purity. Plaintiffs specifically requested documents related to raw talcum powder that was sent to the Colorado School or that was mined or supplied by several other companies that received talc from the same mines as the defendants.
What Happens Next for the Baby Powder Cancer Lawsuits
The goal of discovery here is to determine levels of contaminants, including asbestos, heavy metals, and other minerals, that might have been present in talc supplied to Johnson & Johnson for its talcum powder products. The purity of the talc, plaintiffs argued, is directly related to the cancer-causing potential of the talcum powder sold by the defendants. Judge Pisano agreed, stating, “Testing and evaluation of talc from Defendants’ competitors and others in the talc industry during the relevant time period, particularly from companies that received talc from the same sources as Defendants, may reveal a link between the talc utilized by Defendants and ovarian cancer.”
If neither party objects to Judge Pisano’s decision it will become binding and would then be reviewed by New Jersey District Court Judge Freda Wolfson, who is presiding over the MDL.
Johnson & Johnson is currently facing approximately 5,500 lawsuits from women who allege that its baby powder causes ovarian cancer. If you have used talcum powder products for feminine hygiene and have been diagnosed with ovarian cancer, we urge you to contact one of the personal injury attorneys at Baum Hedlund Aristei & Goldman for a free, no-obligation consultation to discuss possible legal remedies.
