Business Maverick

J&J, Colgate Ordered to Pay Almost $10 Million in Talc Case

By Bloomberg 13 June 2019
Caption
SAN FRANCISCO, CA - JULY 13: In this photo illustration, a container of Johnson's baby powder made by Johnson and Johnson sits on a table on July 13, 2018 in San Francisco, California. A Missouri jury has ordered pharmaceutical company Johnson and Johnson to pay $4.69 billion in damages to 22 women who claim that they got ovarian cancer from Johnson's baby powder. (Photo by Justin Sullivan/Getty Images)

Johnson & Johnson and Colgate-Palmolive Co. must pay almost $10 million to a dying California woman who blamed the companies’ talc-based products for her rare cancer.

The jury verdict in state court in Oakland is another setback for J&J, the world’s largest maker of health-care products, marking its 11th loss since trials over cancer claims tied to J&J’s talc-based powders began in 2016, according to data compiled by Bloomberg.The jury concluded Wednesday that the companies’ body powders were a cause of Patricia Schmitz’s mesothelioma, a cancer specifically linked to asbestos exposure. Schmitz, a former fifth-grade teacher, told jurors she applied either J&J’s Baby Powder or Colgate’s Cashmere Bouquet for most of her life after showering. The jury rejected her claim for punitive damages.

J&J and Colgate were each 40% responsible for Schmitz’s illness — amounting to about $4.8 million in damages against each company, the jury found. It also concluded Avon Products Inc. was responsible for about $2.4 million in damages based on Schmitz’s testimony about purchasing Avon products as a young woman. Avon wasn’t named as a defendant in the case and it’s unlikely Schmitz will be able to recover that portion of the award.

It’s J&J second trial loss in two weeks in cases accusing the firm of hiding the health risks of its talcum powder. J&J faces more than 14,000 lawsuits claiming its powders caused ovarian cancer and mesothelioma. The company was set for trials around the country but has asked a federal judge to halt the litigation and move all the cases to Delaware.

Pharmaceutical Company Johnson & Johnson To Pay 4.6 Billion Dollars To 22 Women Over Baby Powder Ovarian Cancer Lawsuit
Johnson’s Baby Powder

Kim Montagnino, a J&J spokeswoman, said the company would appeal the verdict because its baby powder doesn’t contain asbestos or cause cancer.

“There were serious procedural and evidentiary errors in the proceeding that required us to move for mistrial on multiple occasions and we believe provide strong grounds for appeal,” she said in an emailed statement.

Allison Klimerman, a Colgate-Palmolive spokeswoman, didn’t immediately respond to a request for comment.

“They should take this cancer-causing product off the market,” Joe Satterley, Schmitz’s lawyer, said in an emailed statement. The two companies “still allow carcinogens (asbestos) on babies and that is just awful.”

J&J has won in seven trials while jurors deadlocked in three others. The company also settled four cases. Some of the plaintiffs’ verdicts have been overturned while others are still being appealed.

In Schmitz’s case, the woman’s lawyers asked jurors to hold J&J and Colgate liable for failing to warn consumers their talc-based products were laced with asbestos.

Jurors rejected the companies’ claims that their talc products were asbestos-free based on electron-microscopic photos that came into evidence, said Carmen Best, an energy analyst who lives in Berkeley, California, and served on the panel.

Those photos showed asbestos fibers in talc samples tested by Schmitz’s lawyers, Best said. Jurors also were swayed by “internal documents from Johnson & Johnson’’ talking about the presence of asbestos in its baby powder, she said.

No Punitive Damages

The panel rejected punitive damages because the companies’ mishandling of the products didn’t rise to the level of malice or fraud, Best said. “To me, it came down to irresponsible behavior, but it didn’t cross that threshold to malice,” she said.

Schmitz, 61, told the jury that her mother used Johnson’s Baby Powder on her when she was a baby. When Schmitz was 13, she started applying Colgate-Palmolive’s Cashmere Bouquet after showering. She continued the practice until the early 2000s. At some point, she also used Avon’s talc-based Night Magic, she said.

Doctors diagnosed Schmitz last year with mesothelioma, discovered near her heart, according to court filings. Her lawyers said the disease is in an advanced stage and she isn’t expected to live past the summer.

Joe Satterley, one of Schmitz’s lawyers, told jurors in closing arguments experts found asbestos in more than 70 bottles of Johnson’s Baby Powder they tested and in all 20 bottles of Cashmere Bouquet they examined. Colgate ceased sales of its talc-based product in 1995. J&J continues to use talc and declined to follow one jury’s recommendation to add a warning label.

Satterley said J&J and Colgate had a duty to warn customers about the asbestos in their products, but instead pushed for lax testing requirements as part of an organized cover-up. J&J was involved in a drawn-out effort to “keep the public from knowing there was asbestos in talc and baby powder,’’ he told the panel.

J&J’s lawyers said repeated tests have shown there’s no asbestos in the company’s baby powder and there never has been any. They argued the company’s talc wasn’t a cause of Schmitz’s cancer. “Fifty years of science supports the safety of Baby Powder,’’ Alexander Calfo, J&J’s lead lawyer, told the jury.

Calfo denied that J&J engaged in any cover-up and cited as evidence of its good faith the fact that it kept documents about its handling of the mineral stretching back 70 years. He urged jurors to put their sympathy for a dying mother aside and consider only the evidence in the case.

Gary Sharp, Colgate’s attorney, disputed Schmitz’s contention that talc causes any kind of cancer and argued that the company’s test regime would have caught the presence of any asbestos in Cashmere Bouquet.

“Nothing that Colgate did or didn’t do had anything to do with Ms. Schmitz’s situation,’’ Sharp told the panel.

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