A New Gold Rush for Ambulance Chasers? Johnson & Johnson Talc Lawsuit Sets a Dangerous Precedent 

A Missouri jury has awarded 22 women a staggering $4.6 billion in damages after the women claimed that Johnson & Johnson’s (J&J’s) popular talcum powder was the root cause of their ovarian cancer. Gynaecologists have warned that the plaintiffs’ presumption that talcum powder led to their illness is “very, very unscientific” and can’t be backed up with existing studies, but the U.S. legal system has a history of handing down judgments that fly in the face of scientific fact. 

J&J insists that decades of studies show that its talc product is safe to use, and has vowed to appeal the ruling, which it derided as “the product of a fundamentally unfair process.” In its challenge to the ruling, J&J will undoubtedly point to a 2017 Supreme Court decision prohibiting combining plaintiffs to seek out the most favourable jurisdiction. Of the 22 women in the trial, 17 were from outside Missouri— a state known for being generally favourable towards plaintiffs. J&J will likely challenge such so-called “forum shopping” by defendants in its appeal, as well as the fact that the jury awarded the same compensation to each woman regardless of circumstance.

J&J has had a good track record getting similar cases dismissed. Its most recent victory came last month when a Missouri appeals court threw out a $55-million verdict in a lawsuit by a woman also claiming she developed ovarian cancer after using talc-based products. The Missouri Court of Appeals unanimously overturned the case on jurisdictional grounds, citing the Supreme Court decision against forum shopping. A similar $417 million verdict against J&J was thrown out by a Californian judge late last year, who criticised it as being “underpinned by errors and insufficient evidence… culminating in excessive damages.” In this most recent Missouri case, then, J&J has grounds to be optimistic it will eventually prevail.

Nevertheless, even if the verdict is quashed, observers have expressed concerns that it will result in a flood of similar lawsuits. There are already more than 9,000 suits currently claiming talc has caused cancer, and this number is expected to leap in the wake of the headline-grabbing Missouri ruling. With courts doling out such high-figure compensation awards, law firms have been actively—and almost shamelessly— pitching for business, setting up hotlines such as “1-844-BAD-TALC” and running fearmongering advertisements on TV warning that “Time is Running Out” and dangling the prospect of multimillion dollar payouts in front of cancer sufferers.

The latest rash of J&J talc powder lawsuits are part of a worrying broader trend of plaintiffs seeking someone to blame for their illnesses despite a lack of conclusive scientific evidence. A factory worker argued that an artificial sweetener caused his lung cancer—despite the fact that the pack-a-day smoking habit he had indulged in for decades was a more likely culprit. A Colorado man was awarded $7 million in damages after suing the manufacturer and retailers of his favourite microwave buttered popcorn for causing his respiratory problems after he ate two bags daily for more than a decade. It seems no matter how absurd the health claim, or dubious the scientific evidence, there’s always a law firm willing to patch together a case in the hopes of a big payout.

One of the most serious instances of this pattern, other than the thousands of talc cases, concerns the hundreds of plaintiffs which have jumped on a now-discredited 2015 report alleging that glyphosate, the world’s most popular herbicide, causes cancer. The International Agency for Research on Cancer (IARC), the only major organisation to assert that glyphosate is carcinogenic, has fallen into international disrepute and been dragged before a U.S. congressional committee after it came out that its glyphosate report had been edited and manipulated in order to overstate the risks posed by the chemical.

Despite IARC’s sinking credibility, hundreds of lawsuits against manufacturers of glyphosate products continue to make their way through U.S. courts, using IARC’s assessment of the herbicide to justify their claims. Dozens of these have been combined to be heard in the court of U.S. District Judge Vince Chhabria, who recently ruled—after months of deliberations—that the liability lawsuits will be allowed to proceed to the next stage. Chhabria didn’t give an enthusiastic green light to the plaintiffs’ case, however—he ruled that the scientific evidence they presented was “shaky, but admissible,” and that they would face a “daunting challenge” convincing jurors that glyphosate indeed caused their cancer.

International observers are often mystified by how uniquely permissive the U.S. legal system is of this type of excessive and opportunistic lawsuit. British oncology nurse Tracie Miles, for example, expressed how disappointing she found the talc lawsuits against Johnson & Johnson. Declaring that the plaintiffs’ arguments were grounded in “pseudo-science,” she insisted that the case would never have had a prayer of making it through British courts. These cases are far from harmless quirks of the American legal apparatus. While their soaring costs only line the pockets of self-serving law firms, they draw attention away from more serious lawsuits that are grounded in scientific fact.

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