After tremendous pressure from activist groups filing lawsuits in California, the Environmental Protection Agency (EPA) settled on October 12 and agreed to further research asbestos fiber types and illnesses resulting from exposure to the silicate mineral.
Previous EPA reviews of asbestos published in December 2020 examined the effects of only a small segment of products and uses that contained asbestos. The December 2020 report studied chyrostile asbestos, the only variety of the substance that is presently imported and used in the United States for producing chlorine.
Activists groups, attorneys, and people suffering from the effects of asbestos exposure saw this study as severe mismanagement on the part of the EPA. As a result, lawsuits filed in California Federal District Court and the Ninth Circuit sought to force the EPA to paint a more accurate picture of asbestos’ effect on peoples’ health throughout the years.
This push for new research and review will include all six types of asbestos fibers, not just the chryostile asbestos originally studied, and will examine all diseases related to the substance. Asbestos used in the construction of buildings and machinery before it was considered a serious health hazard, known as Legacy Asbestos, continues to affect people across the country and is part of the new study’s focus.
Asbestos has been linked to a number of different devastating cancers and diseases, including mesothelioma, lung cancer, and ovarian cancer. Asbestos is naturally occurring and was used in ancient times, but came to sweeping popularity in the 1970s for use in construction and the automobile industry due to its fireproofing properties.
As part of the settlement, the EPA has agreed to complete its review by December 1st, 2024 with regular updates being released every 180 days.
Asbestos exposure injury lawsuits, including those exposed to asbestos in talc products, are still currently being filed for individuals who have been diagnosed with mesothelioma, cancer & other serious injuries.
Missouri’s highest court refused to consider Johnson and Johnson’s appeal of a $2.12 billion damages award to women who blamed their ovarian cancer on asbestos in its baby powder and other talc products.
Johnson & Johnson said it plans to appeal to the U.S. Supreme Court.
It said the verdict was the product of a “fundamentally flawed trial, grounded in a faulty presentation of the facts,” and was “at odds with decades of independent scientific evaluations confirming Johnson’s Baby Powder is safe, does not contain asbestos, and does not cause cancer.”
The New Brunswick, New Jersey-based company also said it will set aside a $2.1 billion reserve for the verdict, to be reflected in its year-end financial results. The company said in October that it faces more than 21,800 lawsuits claiming that its talc products cause cancer because of contamination from asbestos.
In its June decision, the Missouri Court of Appeals said it was reasonable to infer from the evidence that Johnson & Johnson “disregarded the safety of consumers” in its drive for profit, despite knowing its talc products caused ovarian cancer.
A New Jersey state appeals court revived a pair of suits that allege talc products from Johnson & Johnson caused two women to develop ovarian cancer, saying the trial court judge was wrong in dismissing the women’s experts’ opinions.
“The trial judge was called upon to assess whether the opinions were the product of reliable data and employed methodologies accepted by the scientific community,” the panel wrote. “Instead, he selected defendants’ scientific methodologies over plaintiffs’, a process well beyond the gatekeeping function and which resulted in an abuse of discretion.”
The trial court granted summary judgement to J&J and Imerys Talc America in 2016, finding that although Brandi Carl and Diana Balderrama’s experts were qualified, testimony from Dr. Graham Colditz and Dr. Daniel Cramer suffered from a slew of problems, such as the “narrowness and shallowness” of the scientific inquiries and evidence.
Both Cramer and Colditz’s explanations for how they interpreted and relied on studies on the link between talc and ovarian cancer were consistent with court standards. With their expert testimony reinstated, a dispute of material fact exists, and therefore the summary judgement must be reversed so the case can proceed.
“We have been fighting this fight for these courageous women since 2014 and are proud to be vindicated after all these years,” the plaintiffs’ attorney said. “Johnson & Johnson did the right thing earlier this year by removing talcum powder for the American shelves. Now it’s time to compensate these women and accept full responsibility.”
In 2015, the state Supreme Court granted multi-county litigation status to more than 100 suits over the talc products, with Carl’s and Balderrama’s actions selected as the first two to be tried.
A Missouri appeals court on Tuesday rebuffed Johnson & Johnson’s request that it take a second look at its decision that affirmed a jury’s finding that the company’s talcum powder products gave nearly two dozen woman ovarian cancer and upheld $2.11 billion in damages from the landmark $4.7 billion verdict.
In a pair of single-sentence orders, the Eastern District Court of Appeals succinctly denied both J&J’s motion for rehearing and its application for transfer to the Missouri Supreme Court, both of which were filed earlier this month.
J&J spokesperson Kim Montagnino told Law360 that the denials of its motions were a “procedural next step” in the appeal, and that the company’s following move will indeed be asking the Missouri high court to hear the case.
“The verdict was the product of a fundamentally unfair process that allowed plaintiffs to present a group of 22 women, most of whom had no connection to Missouri, in a single case all alleging that they developed ovarian cancer,” she said. “We continue to believe this was a fundamentally flawed trial, grounded in faulty presentation of the facts, and will pursue further review of this case by the Supreme Court of Missouri.”
On June 23, the appellate court slashed nearly $2.6 billion from the record-setting verdict won in June 2018 by a group of plaintiffs who alleged asbestos and other carcinogens in J&J talc products gave 22 women ovarian cancer.
In its motion for a rehearing, J&J argued that the verdicts were based on flawed expert testimony that should not have gone to the jury. The company further argued that the appellate court’s jurisdictional ruling meant new trials should be ordered on the surviving plaintiff’s claims – and that the court had overlooked the significant differences in those claims, which warrant having them split into separate trials.
“Considering the number of differences among plaintiffs, the sheer volume of the jury instructions and the number of different state laws involved, the relatively short time spent in deliberations, and the identical awards that followed those deliberations, it is inconceivable that the jury considered each claim separately based only on the evidence presented on each plaintiff,” J&J argued.
Since the JPML centralized all federally filed talcum powder ovarian cancer lawsuits in 2016; legal representatives have been working toward preparing a limited number of cases for early trial. District Judge Freda L. Wolfson issued a court order announcing 1,000 randomly selected cases will now go into a bellwether discovery pool.
According to the order, plaintiffs and defendants have several tasks now to complete pertaining to these 1,000 cases:
- Within 90 days of the order, plaintiffs in each of the selected cases shall complete a verified Plaintiff Profile Form, produce medical record retrieval authorizations, and promptly order and produce core medical records.
- The core records will include all medical records or reports related to the plaintiff’s ovarian cancer and any other gynecologic diseases or conditions, as well as the decedent’s death certificate if applicable.
Johnson & Johnson tried to have the lawsuits dismissed by questioning the validity of the plaintiff’s scientific experts. However, Jude Wolfson determined that most of the expert opinions would be permitted.
While J&J has advertised its talc-based products for decades as being safe and suitable for use all over the body, studies published as far back as the 1970s suggestion association between talc and ovarian cancer.
J&J maintains that its products are safe, but in May 2020, announced it would stop selling its Johnson’s Baby Powder in the U.S. due to decreased demand.
Johnson & Johnson’s bid to escape a $186 million punitive award over its sale of baby powder was thrown out by a New Jersey state judge. The court cited the pharmaceutical company’s “direct lies” to consumers and regulators regarding its baby powder allegedly contaminated with asbestos.
Judge Ana C Viscomi denied the company’s motions to reduce the compensation, saying jurors could find by “clear and convincing evidence presented” that J&J engaged in a series of misdeeds. She also noted that the company lied to the FDA by “editing unfavorable test results from reports” and lied to consumers by claiming a cleansing procedure “removed all impurities” from its talc powder products.
“J&J’s conduct here was reprehensible,” Judge Viscomi said while issuing her decisions, later adding: “ The award, modified by the Punitive Damages Act, is not so clearly disproportionate to the injury and does not shock the conscience of the court.”
The judge later reduced each punitive award due to the state’s statutory cap on punitive damages to make it five times the amount of the respective compensatory verdict. Viscomi elaborated on her reasons for denying J&J’s motions for a mistrial, including the company’s mistrial bid over the judge’s ruling to strike the closing argument of then J&J attorney Diane Sullivan.
Judge Viscomi indicated that she struck the closing argument after Sullivan had ignored the judge’s admonishments throughout the trial.
“Counsel was warned what would happen if she continued her conduct. It was her choice to make,” said the judge, adding that Sullivan “chose to continue willful violations of court orders.”
A spokesperson from J&J did not immediately respond to a request for comment.