June 1, 2021- 11:29 a.m.
WASHINGTON — The Supreme Court declined Tuesday to take up Johnson & Johnson’s appeal of a multibillion dollar verdict in favor of women who said they developed ovarian cancer from using the company’s talcum powder products.
The company argued that it didn’t get a fair trial when a jury in Missouri state court awarded nearly $5 billion to 22 women who used Johnson’s Baby Powder and Shower to Shower Shimmer Effects, both made with talcum powder that their lawsuit claimed was contaminated with asbestos, a known carcinogen.
A state appeals court reduced the damage award to more than $2.1 billion.
Talc, the mineral from which talcum powder is made, is chemically related to asbestos. Both are mined and may occur close together in the ground, making asbestos contamination a known production problem. But Johnson & Johnson denied that its products were tainted or that they caused cancer.
Whether those products did cause cancer was not the issue the Supreme Court had been asked to review. Instead it had been asked to consider the company’s argument that the Missouri courts unfairly combined the cases of nearly two dozen women from several different states whose cancer severity varied widely.
Some of the women had a genetic or family predisposition for cancer, while others did not. Putting all the cases together confused the jury and blurred the legal distinctions separate to each claim, the company said.
Because the laws of 12 different states were involved, it took the judge more than five hours to give the jury instructions before deliberations began.
Johnson & Johnson said the Supreme Court should take the case “to curb due-process abuses in mass-tort suits” and give corporate defendants the same rights to a fair trial as everyone else. The company also said the amount of punitive damages was too far out of line with the actual or monetary damages.
“The matters that were before the court are related to legal procedure, and not safety,” the company said in response to the Supreme Court’s order. “Decades of independent scientific evaluations confirm Johnson’s Baby Powder is safe, does not contain asbestos, and does not cause cancer.”
But lawyers for the women said consolidating several plaintiffs in product liability cases is a widely accepted way to preserve the resources of the courts, especially “when common issues — such as the product’s safety and the defendants knowledge of its danger — predominate, as they did here.”
And the women said the size of the damage awards is within the range that courts have concluded does not amount to disproportionate punishment.
The case brings an unusual lineup of lawyers. The women are represented by former solicitor general Kenneth Starr, who was a member of former President Donald Trump’s legal team during the first Senate impeachment trial; former U.S. Attorney General John Ashcroft, who served under President George W. Bush; and Tom Goldstein, the publisher of SCOTUSBlog who has served as an NBC News legal analyst.
Johnson & Johnson is represented by Neal Katyal, who served as acting solicitor general under former President Barack Obama. He was part of the team behind the Minnesota attorney general’s prosecution in the George Floyd case and has also been an NBC News legal analyst.
As for potential health hazards of talc products, the American Cancer Society has said “it is not clear if consumer products containing talcum powder increase cancer risk.” A U.S. government study of thousands of women found no strong evidence linking baby powder to ovarian cancer, but the lead author said the results were “very ambiguous.”
Concern over the possible connection has prompted thousands of lawsuits nationwide. Johnson & Johnson no longer sells talcum-based baby powder in the United States or Canada.
