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TALC LAWSUIT CASE UPDATE - NJ Plaintiffs Seek Punitive Damages Following Compensatory Award
January 15, 2020 - Plaintiffs in a New Jersey talc powder lawsuit who were previously awarded $37 million in compensatory damages are now seeking punitive damages from a new jury. After deciding in favor of the plaintiffs, who claim that talcum powder caused their injuries, new jurors must determine whether there is significant evidence to bring punitive damages against talc powder manufacturer, Johnson & Johnson.
Plaintiffs’ attorneys argued during Tuesday’s punitive damages trial that J&J was aware that their product contained asbestos but continued to sell it to consumers without warning. They directed jurors to J&J internal memos and employee testimony that indicated that J&J was aware of asbestos in their talc products and even coached employees to present the product to consumers as asbestos-free.
Acting as the key witness in Tuesday’s hearing, a terminally ill plaintiff gave his account to the jury.
David Etheridge, age 60, took to the stand to tell of his struggles living with terminal mesothelioma, which he claims he developed as a result of asbestos-containing talc powder. The Virginia Presbyterian minister explained that he had to retire early from his career once his illness became too debilitating for him to preach.
Etheridge developed mesothelioma three years ago, while on vacation with family. He has undergone numerous treatments, including an 11-hour operation that left him hospitalized for 22 days.
He has since undergone chemotherapy. However, his mesothelioma has become untreatable. According to Etheridge, all current treatments are an effort to make him more comfortable and extend his life.
Ethridge says he was first exposed to asbestos-tainted talc powder as a baby.
J&J representatives argued that the company met and even exceeded federal regulatory standards regarding asbestos testing in its products. The defendant’s attorneys also argued that two third-party testing agencies had both tested J&J talc products for asbestos, with both tests coming out negative for the presence of asbestos. The defendants also claimed that they had previously flagged products believed to contain asbestos to federal agencies, but testing indicated that it was only an asbestos-like product.
Additional co-plaintiffs – D’Angela McNeill-George, Douglas Barden, and the estate of Will Ronning – all claim to have been exposed to asbestos in J&J baby powder and are seeking punitive damages for their injuries.
Talc is the common ingredient in the soft, sweet-smelling powder products used on babies’ bottoms and by women in an effort to keep their skin dry and avoid rashes. Talcum powder is made from talc, a combination of magnesium, silicon, oxygen, and hydrogen. Links have been made between talcum powder and ovarian cancer, which has led to thousands of talcum powder lawsuit cases.
As early as the 1970s, scientists began looking at the connection between the dusting of female genitals with talcum powder and ovarian cancer. Based on the marketing of these products for use on babies and as a feminine ritual, most people assume that such a common household item is safe to use.
It is imperative that women are warned about the risk of using talcum powder in their daily feminine hygiene routine! Increasing evidence suggests that this staple of bathrooms and nurseries for generations may be linked to ovarian cancer.
A recent study shows that women who commonly apply talc products [to the vaginal area] have a 33% increased chance of developing cancer.
In 2006, the International Agency for Research on Cancer (IARC) scheduled a re-evaluation of talc. Based on limited data, they concluded that the inhalation of asbestos-free (pharmaceutical grade) talc was not carcinogenic to humans. But, based on the limited research for its link to ovarian cancer the IARC concluded that pharmaceutical grade talc could be “possibly carcinogenic to humans.”
Under the Federal Food, Drug and Cosmetic Act, “cosmetic products” and their ingredients (such as baby and shower powder) excluding additives, do not have to undergo FDA review or approval before they enter the market. But, companies do have a legal responsibility to properly label their products with safety information and the ingredients in their products but are not required to share this info with the FDA.
On the other hand, in 2009, the FDA took steps towards finding a link between talc and lung cancer. Of the nine talc suppliers asked by the FDA to provide samples of talc for the study, only four complied with their request. They also sampled talc-containing cosmetic products in the study. The survey found that no asbestos fibers or structures were present in any of the samples. Because of the limited number of samples, the FDA found the results “informative”, but did not prove that most or all products in the United States containing cosmetic grade talc are free of asbestos.
According to the Center for Disease Control and Prevention, nearly 20,000 women develop ovarian cancer in the U.S. annually. Of these cases, 14,500 are fatal.
In 2017, the FDA’s Office of Women’s Health (OWH) took another step to establishing a link between talcum powder and ovarian cancer. The OWH awards research grants for one to two-year projects designed to advance the study of women’s health issues. One of those research grants was awarded to a team investigating the link between talcum powder and cancer. The research summary states that the connection between the two not been investigated adequately and there was a larger “need for studies with longer exposure periods and more detailed evaluation of the early events in genital system tissue transformation.”
Currently, there are more than 4,000 talcum powder lawsuit cases pending against talc products, but since these powders are cosmetic products, regulatory authority by the FDA is limited, leaving women in the hands of the manufacturers. Johnson & Johnson continues to market their profitable talcum powder as a safe and consumer-friendly product.
Cosmetic grade talc is produced so that it conforms to the specifications of the United States Pharmacopeia (USP), which requires all cosmetic grade talc to be free of asbestos. However, in its natural form, talc contains asbestos, a proven cause of lung cancer.
Although all talcum products used in homes in the United States since the 1970s have been asbestos-free, those individuals that mine for talc, and similar jobs, involve a high risk of long-term exposure to natural talc fibers. Those fibers, containing asbestos, may contribute to a higher chance of developing lung cancer from inhaling them which could lead to a chemical exposure lawsuit.
January 6, 2020 - J&J announced midtrial today that they had agreed to settle with a plaintiff who claims that J&J talc contained asbestos which caused the plaintiff to develop mesothelioma.
The California court was one of the first to hear testimony regarding the FDA’s findings from October, in which the agency confirmed to have found chrysotile asbestos in a blind test of J&J talc products.
J&J subsequently announced that its own independent testing found no asbestos in its talc product line.
The California trial was set to be the first talc lawsuit in which the jury would be able to weigh in on the FDA’s findings. Because of the settlement, the jury will no longer be able to issue an opinion on the matter.
Linda and Mark O’Hagan, spouses and plaintiffs in the California talc lawsuit, claim that Linda developed mesothelioma in August 2018 as a result of asbestos present in J&J baby powder.
November 20, 2019 - For decades, the Food and Drug Administration downplayed concerns over cancer-causing asbestos found in talc contained in baby powder and cosmetics. A Reuters investigation found that over the past 50 years, the agency has repeatedly ignored concerns from experts and consumers while leaving testing for asbestos to the companies themselves.
Reuters reports that the FDA downplayed risks, failed to issue warnings, and did not impose proper safety standards, according to documents produced in court proceedings. The agency said it did not have the authority to require manufacturers of powders and cosmetics to test for asbestos. The agency rarely conducted independent tests until recent pushback led to changes.
FDA Acts, Finds Talc Containing Asbestos
Following increased scrutiny in Congress and from the public, the FDA commissioned testing and found asbestos in 11 talc-based cosmetics, including Johnson & Johnson Baby Powder. J&J recalled 33,000 bottles following the testing. The company was already facing lawsuits alleging they failed to warn customers about asbestos in its products.
The FDA’s findings revealed what many feared. So why did it take so long for the agency to act? FDA officials responded to questions from Reuters, stating that the agency does not have the authority to require manufacturers to test for asbestos or report results. The FDA also does not have the authority to force companies to pull products off of shelves or ensure the safety of cosmetics.
No Known Safe Levels of Asbestos in Talc
FDA officials said they now recognize that there is no known safe level of asbestos for products. This recognition was made by the World Health Organization and other public health agencies years ago. The agency said it uses the best available information to make decisions, and that the new tests improved “understanding of how and why asbestos fibers are hazardous.”
Following the tests, the FDA has moved to increase the regulation of talc-based products. FDA officials said the agency’s current policy is to act quickly and to encourage recalls if necessary when small amounts of asbestos are discovered. The agency announced a voluntary recall of the tainted products in March. Agency officials said they stand by recent tests despite pushback from Johnson & Johnson.
The FDA now faces increased pressure to regulate talc powders and cosmetics to ensure they are free from asbestos. This year’s testing by the agency followed jury verdicts against J&J that exceeded $5 billion in cancer lawsuits. A December 2018 Reuters report found that J&J was aware of its raw talc and powders occasionally tested positive for asbestos and did not report the findings to the FDA.
Company Push Back, Legal Battles Continue
Johnson & Johnson disputed Reuters’ 2018 report as “one-sided, false and inflammatory.” J&J officials told Reuters the company has cooperated and supported the FDA’s mission to protect public health, and suggestions that the company pushed for reduced standards of regulation are “just false.” Officials said the company was under investigation by the U.S. Justice Department and Securities Exchange Commission.
Following the FDA testing that found asbestos in J&J Baby Powder, the company issued a statement that is was recalling the 33,000 bottles as an “abundance of caution.” J&J announced 11 days later that tests conducted by labs the company hired found no asbestos in the talc in baby powder. J&J written responses to Reuters said the company systematically tests the talc and has consistently found the product to be pure and safe.
Regulatory Standards in Flux
Last year, FDA cosmetic chief Dr. Linda Katz began organizing a symposium and public hearing on talc testing following renewed asbestos concerns. The symposium, set to take place at some point in 2020, will likely address contention over which particular mineral powders cause cancer. The meeting might also set precedence for how the FDA plans to navigate industry and consumer concerns in the future.
The symposium follows 2018’s “Asbestos in Talc Symposium” that the FDA sponsored. The 2018 event set formal recommendations on talc testing, but Reuters investigations raised concerns over industry influence for the procedures. Reuters reviewed reports of the session that discouraged counting fibers that “may or may not be asbestos” as hazardous, an issue of courtroom contention nationwide. This contradicts other U.S. and European public health official positions that consider mineral fibers that even look like asbestos to toxic.
Dr. David Egilman, a clinical professor of family medicine at Brown University, issued concerns over the lack of medical professionals present at the 2018 symposium; most non-government participants had backgrounds in mineral testing or geology. Egilman told Reuters that if the FDA was guided by geologists and industry consultants, it could be overlooking which mineral fibers cause cancer. Egilman offered his expertise as a physician and researcher, but an FDA official said his expertise was not required.
Push for Public Assurance
Raja Krishnamoorthi, an Illinois congressman, is chair of a U.S. House subcommittee that is investigating talc safety. Krishnamoorthi told Reuters that the FDA and other regulators need to stop depending on manufacturers for safety assurance. He said the agency needs to bring consumers and advocates into the discussion moving forward.
“When something as serious as cancer or carcinogens are at issue,” he said, “self-regulation doesn’t make a lot of sense.”
May 31, 2019 - A New York state jury hit Johnson & Johnson with $300 million in punitive damages after finding the company responsible for Donna Olson's mesothelioma which she developed after years of using J&J's talcum powder products. The Friday verdict is an extension of the earlier verdict in May which awarded Olson and her husband $25 million in compensatory damages, bringing the total verdict to $325 million.
The punitive damages were a result of finding there was "clear and unequivocal evidence that J&J's misconduct was wanton and reckless," according to the Olson's attorney, Jerome Block of Levy Konigsberg LLP.
March 13, 2019 - In the latest talcum powder trial in California, the jury found Johnson & Johnson's baby powder product contained asbestos causing cancer and was a big factor in causing the woman's mesothelioma.
According to Law360, "The jury awarded $291,000 to Teresa E. Leavitt for past medical expenses, $1 million for future medical, $1.2 million for loss of earnings, $7 million for past physical pain and mental suffering, and $15 million for future physical pain and mental suffering." The verdict also gave her partner a combined $5 million for past and future love and companionship.
February 2019 - Cases on file around the country and in the MDL continue to move forward. State court dockets are seeing additional trials, which have gone well for plaintiffs. Most of these verdicts are in various stages of appeals, so while the jury response has been encouraging, ultimate success remains to be seen.
January 23, 2019 - St. Louis, Missouri Judge Rex Burlison of the 22nd Circuit Court ruled to uphold the $4.7 billion verdict against talc product manufacturer Johnson & Johnson in Ingham, et al. v. Johnson & Johnson, et al.
The verdict, which consisted of $4.14 billion in punitive damages and $550 million in compensatory damages is the sixth-largest verdict in a product liability lawsuit in U.S. history – it is the largest verdict against J&J.
Judge Burlison refused to grant J&J’s motion for judgment notwithstanding the verdict, new trial, and new trials on damages, on a basis of what Burlison concluded was “substantial evidence” to support the $4.7 billion award.
“First, substantial evidence was adduced at trial of particularly reprehensible conduct on the part of defendants, including that defendants knew of the presence of asbestos in products that they knowingly targeted for sale to mothers and babies, knew of the damage their products caused, and misrepresented the safety of these products for decades,” Burlison wrote. “Second, defendants’ actions caused significant physical harm and potential physical harm, including causing ovarian cancer in plaintiffs or plaintiffs’ decedents.”
Representatives for the defendant argued that the Missouri court lacked jurisdiction over the company, which is based in New Jersey. The defense went on to argue that the plaintiffs had failed to prove their claims in court.
A spokesperson for J&J said that the company plans to file an appeal within the coming weeks.
December 20, 2018 - In a landmark decision, Johnson & Johnson lost its motion to reverse a verdict that awarded $4.69 billion to women who blamed their ovarian cancer on asbestos in the company's talcum powder product.
August 2018 - A St. Louis jury has awarded $550 million in compensatory damages and an additional $4.14 billion in punitive damages to the 22 women who proved that Johnson & Johnson talcum powder products caused them to develop ovarian cancer. The trial was held in the Circuit Court of the City of St. Louis, Missouri. The Plaintiffs proved that J&J and its talc supplier, Imerys Talc America, concealed the fact that their talc was contaminated with asbestos.
The plaintiff's argued that J&J sold its archetypal product, white-bottled baby powder, knowing that the talc-based product was contaminated with asbestos and failed to warn consumers of the contamination in order to protect the company's own image. All 22 plaintiffs habitually used J&J white-bottled baby powder for feminine hygiene, and all 22 were subsequently diagnosed with ovarian cancer.
The plaintiff's lead attorney, Mark Lanier, said that concerned with profits alone, J&J has been concealing evidence of asbestos's presence in talc since 1973.
"This is not the Johnson & Johnson of yesteryear, the Johnson brothers of 1875," Lanier said. "This is a multi-national corporation. It still plays on the idea because it will evoke warm feelings of trust. That's why they (J&J) call it (baby powder) their golden egg, their sacred cow."
Lanier went as far as to call the defense's witnesses "hired guns" who took part in "junk science" to serve the needs of the manufacturers.
Lanier cited the findings of Dr. William Longo, an electron microscope research scientist whose research has linked asbestos' presence in talc to higher risks of ovarian cancer. Dr. Longo's testimony has been key to many of the prosecutorial arguments in past talc cases.
J&J unceasingly defended its staple product, countering throughout the month and a half long trial that the prosecution's claims were unfounded. "The talc in Johnson's Baby Powder does not contain asbestos or cause ovarian cancer and we will continue to defend the safety of our product," said J&J spokesperson Carol Goodrich in a statement prior to jury deliberations. J&J presented expert witnesses who testified that other risk factors, such as inherited prior family histories of cancer and mutating genes unrelated to talc, were the reasons that the plaintiffs developed ovarian cancer.
Although this is not the first claim against J&J talc products, the stakes in this St. Louis lawsuit were much higher.
Unlike previous claims against J&J talc, which argued that talc itself caused women to develop ovarian cancer, this is the first argument to focus on the claim that the talc products were contaminated with asbestos, a known carcinogen, and that asbestos itself caused plaintiffs to develop ovarian cancer.
Asbestos is a mineral that is often found near talc deposits.
J&J has previously defended claims that their talc products contained asbestos and that inhalation of the product caused consumers to develop cancer. This is the first case where the direct application of talc products supposedly containing asbestos caused the plaintiffs to develop cancer near or around the application point.
Because the jury has found in favor of the plaintiffs, this decision opens the floodgates for similar talcum powder lawsuits to be tried in state and federal courts nationwide, with a potential for J&J to face billions of dollars in future verdicts.
Prior juries have found that J&J talc products caused women to develop ovarian cancer, but never as a result of asbestos exposure. Previous single-plaintiff verdicts have surpassed $100 million, which explains why this talc powder verdict, which included 22 plaintiffs, was so great in comparison.
J&J is also facing a number of other legal battles against claims that their talc products caused consumers to develop mesothelioma (link page here), a form of lung cancer closely linked to asbestos exposure.
This decision will shape the context of the arguments for the nearly 9000 talc-related claims pending against J&J nationwide.
April 2018 - There are more than 6,000 plaintiffs whose cases are filed in federal court. There are more than 1,500 plaintiffs whose cases are on file in various state courts. There are cases being prepared for trial, and tried cases in varying stages of appeals.
October 2017 – The $72 million awarded to Jackie Fox is thrown out by a Missouri appeals court stating the out-of-state plaintiff did not have the right to sue in a Missouri court.
August 2017 – Eva Echeverria was awarded the largest individual talcum powder verdict to date, but the verdict was later overturned and is now under appeal.
August 24, 2017 - On Monday, August 21, a landmark verdict was reached in a lawsuit against Johnson & Johnson in California. The jury, agreeing that Johnson & Johnson’s talcum powder caused Eva Echeverria to develop terminal ovarian cancer, ruled in favor of the plaintiff, awarding Echeverria $417 million.
This particular case acted as a bellwether for similar cases in the Johnson & Johnson consolidated talcum powder lawsuits in California. The California state court verdict is a milestone for not only other talcum powder lawsuits but for many other individuals taking on the corporate giant, Johnson & Johnson because it indicates there may be a higher chance for plaintiffs in similar cases to win.
The verdict surpasses another impressive benchmark verdict brought against Johnson & Johnson's talcum powder earlier this year – when a St. Louis, Missouri jury awarded $110.5 million to a woman who had also developed ovarian cancer. Last year, trials in the St. Louis court resulted in various verdicts of $72 million, $70.1 million and $55 million in damages to plaintiffs who had suffered similar injuries. In 2016, Johnson & Johnson was hit with four out of the five biggest product liability verdicts in the country. In total, more than 1,000 talcum powder lawsuits have been filed against Johnson & Johnson's talcum products thus far.
In addition to the talcum powder lawsuits, Johnson & Johnson is facing lawsuits for a number of other pharmaceutical drugs and products, including Xarelto, a blood thinner; Risperdal, an antipsychotic drug; hip implants; and transvaginal mesh. In 2017, the company will face 17 different trials alleging one of its products caused injuries or death. Many of the lawsuits are ongoing.
At TorHoerman Law, we spend a significant part of our practice going after big pharmaceutical companies and manufacturers that don't adequately warn of the risks of prescription medicines or medical devices that they put on the market. You can keep up-to-date with all the ways we are challenging big pharma by checking out our current litigations.
June 27, 2017 - The nationwide pharmaceutical corporation Johnson & Johnson (J&J) has filed a motion to dismiss a large number of cases brought against their talcum powder products, seizing upon a United States Supreme Court ruling which could potentially restrict the courts where plaintiffs can file lawsuits.
The Supreme Court decision in Bristol-Myers Squibb Co vs Superior Court restricted Plaintiffs in that case to file personal injury lawsuits in either the district where J&J is incorporated or has its principal place of business or the district where the injury occurred. Though the decision was specific to Bristol-Myers Squibb Co, J&J hopes to apply it to other pending cases throughout the country.
J&J ultimate goal is to restrict and dismiss the number of cases filed against their talcum powder products in state courts. There are nearly 6,000 lawsuits currently filed against J&J claiming that their talc products increase the likelihood of ovarian cancer in women. J&J failed to warn consumers of these increased risks. In fact, the company still denies that these risks even exist.
Of the 5,950 lawsuits against J&J’s talc products, around twenty percent (20%) are pending in Missouri state courts (primarily in the city of St. Louis) where juries have already awarded nearly $307 million in verdicts for Plaintiffs who were injured by talc.
A number of these St. Louis Plaintiffs are not Missouri residents, which is why J&J argues that they should be dismissed because the court lacks personal jurisdiction. In essence, personal jurisdiction arises out of issues of federalism, state sovereignty, and the due process rights of the defendant (here J&J). Ultimately, personal jurisdiction determines whether a state can constitutionally enter judgment against a defendant. In order to establish jurisdiction, there must exist sufficient minimum contacts by the defendant such that the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice.
For J&J, it should be fair to state that even out-of-state cause of actions clearly relates to J&J’s contacts with Missouri. In other words, it can be argued that out-of-state Plaintiffs’ injuries resulted from the tortious sale of talcum powder, and J&J carries on that the same injurious activity in Missouri. Even further, J&J should not be surprised if they are sued in a Missouri court to answer for their tortious sale of talc powder. If J&J did not want to take responsibility for their actions in Missouri, then they should never have directed their sales to Missouri.
If the judge allows J&J's motion to dismiss based upon a lack of personal jurisdiction, these out-of-state cases will be dismissed and potentially never see their day in court.
Following the Supreme Court ruling, a St. Louis judge declared a mistrial in a talc product trial that had already been proceeding for nearly a week. Two of the three Plaintiffs, in that case, were not residents of Missouri.
"We believe the recent U.S. Supreme Court ruling on the Bristol-Myers Squibb matter requires reversal of the talc cases that are currently under appeal in St. Louis," J&J said of the matter.
This decision could have implications on other cases throughout the court, including but not limited to, California lawsuits against Bayer's Essure and Illinois and California lawsuits against GlaxoSmithKline's Paxil. A large number of plaintiffs in both lawsuits are filing from out-of-state and could be vulnerable to dismissal based on the Supreme Court's limiting decision.
May 2017 – Lois Siemp was awarded $110.4 million out of Missouri. The verdict was later upheld on appeal.
February 2017 - The FDA's Office of Women’s Health granted funding to a lab to research the connection between talcum powder and ovarian cancer. According to the research summary, talcum powder's "effects on female genital system tissues have not been adequately investigated." This proposed research, it says, "will help to fill some of the existing data gaps in the molecular and genetic events associated with early ovarian oncogenesis, as these are largely unknown."
October 2016 - Deborah Giannecchini was awarded $70 million at a court in St. Louis, MO.
May 2016 – Gloria Ristesund, who was diagnosed with ovarian cancer, was awarded $55 million but a jury in Missouri.
February 2016 – $72 million was awarded to a woman who used talcum powder for 35 years in a talcum powder lawsuit.
In early 2016, a talcum powder lawsuit was filed in a St. Louis County court against Johnson & Johnson Inc. One plaintiff, Marvin Fox, filed suit on behalf of his mother, Jacqueline Salter Fox, who developed fatal ovarian cancer after 35 years of using Johnson & Johnson baby powder and shower products. Fox's suit was part of a 60 person civil suit filed in Missouri. The jury charged the pharmaceutical company with fraud, negligence, and conspiracy, and awarded Fox $10 million in damages and $62 million in punitive damages.
Fox was a loving mother, a foster mother, a caretaker, a hard-working American, and, sadly, just one of the thousands of women who were put at an increased risk of ovarian cancer by using Shower-to-Shower. Just months before her death, Fox explained to attorneys, that she was "raised on" Johnson & Johnson's Baby Powder and Shower-to-Shower talc. Like many women in the African American community, Fox was taught to use Shower talc as part of her daily feminine hygiene routine – just the way J&J intended it to be used.
The Fox case was important in bringing forward some risk factors previously not considered. Although studies show that Caucasian women are at a higher risk than any other race to develop ovarian cancer, documents brought out during the trial show that Johnson & Johnson intentionally targeted African American and Hispanic women in their advertising of "A Sprinkle A Day." And in fact, many African American and Hispanic women note that using talc for feminine hygiene was second nature and it had been a routine they followed as long as they can remember. The Fox case is likely to be the first of many cases brought by African American women and we expect to talk to many women in the Hispanic community for similar reasons.
African American woman who contract ovarian cancer as a result of talc use, have a much higher mortality rate – 7.2 black women per 100,000 died of cancer compared to 4.1 per 100,000 for all other races.
2006 - The International Agency for Research on Cancer (IARC) scheduled a re-evaluation of talc. It was found that pharmaceutical grade talc could be "possibly carcinogenic to humans."
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Last Modified: January 15th, 2020 @ 04:21 pm
Talcum powder is made up of a mineral, talc. When used as a powder, talc can help to reduce moisture and prevent rashes, making it a popular ingredient for products such as Johnson & Johnson's baby powder, among others, including various cosmetics. Talcum powder lawsuits throughout the country allege that talcum powder can cause ovarian cancer.
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