The Department of Justice launched a criminal probe last week into whether J&J lied about possible cancer risks of its baby powder. It has convened a grand jury in Washington DC to investigate the matter, according to media reports. (Reuters.com)
The grand jury is looking at documents related to what Johnson & Johnson company officials knew about carcinogens in their talcum powder-based products. J&J issued its annual report in February, which stated it had gotten federal subpoenas from DOJ and the SEC related to baby powder litigation that is going on currently in thousands of cases across the country.
2018 Reuters Report Revealed J&J Officials Knew About Possible Cancer Risks
The above criminal probe is being launched largely because of J&J internal documents that became public during a baby powder cancer lawsuit in 2017. News agency Reuters performed an extensive examination of thousands of those documents in 2018. (Reuters.com)
Their report showed that from 1971 to the early 2000s, J&J’s raw talc and finished baby powder sometimes had small amounts of asbestos. Company employees – including executives, mine managers, lawyers, and doctors – discussed the problem and what to do about it. But they never disclosed the matter to the public or federal regulators.
The revealed internal documents also show how J&J was successful influencing regulators’ intentions to limit how much asbestos could be in talc products for consumers.
A small number of the reviewed documents have been examined in state and federal baby powder cancer trials and cited in many media reports. Many of the documents were not able to be viewed by the public before because of court orders. J&J was able to keep those documents confidential for many years. But that changed in 2018.
‘Rather High’ Levels of Asbestos
The earliest mention of asbestos in talc was in 1958 in a consulting laboratory’s report to the company. The scientists described talc that came from one Italian supplier as ‘fibrous and acicular’ tremolite. That is one of the six minerals that is classified as asbestos.
In various documents from the 50s through the early 2000s, reports by scientists, outside laboratories and suppliers reported the same information. The reports stated that contaminants in both raw talc and finished powders were asbestos, and usually used terms that refer to asbestos, such as ‘fiberform’ and ‘rods.’
Further, in 1976, FDA was considering limits on asbestos in consumer talc-based products. J&J told the agency that no asbestos was detected in samples of talc from the end of 1972 to the end of 1973. But it declined to tell FDA that a minimum of three tests by three different labs did find asbestos in their talc. One report said the level was ‘rather high.’
It is true that most asbestos tests from the company that Reuters looked at did not find any trace of asbestos. But as the testing methods used at J&J did improve over time, the company always had limits that allowed some trace contaminants not to be detected. Also, only a tiny fraction of its talc is ever tested.
No Safe Level of Asbestos Exposure
According to the World Health Organization and other international authorities, there is no safe level of asbestos exposure. Most people who are exposed to do not get cancer, but for some people, even a small amount of asbestos exposure can cause cancer sometimes decades later.
Many baby powder cancer plaintiffs argue that the amount of asbestos they were exposed to when they dusted their bodies with talcum powder were enough.
The evidence of what company officials knew came to light after people who thought baby powder caused their cancers hired attorneys experienced in asbestos exposure lawsuits. Some attorneys knew from those cases – usually involving manufacturing and industrial workers exposed to asbestos at work – that talc-based products did sometimes test positive for asbestos. So, they started demanding the release of J&J’s lab testing documents.
What J&J released in response to those attorney demands allowed the lawyers to hone their arguments. The culprit, they said, was not the talc, but was the asbestos that the talc sometimes contained. That argument, backed by many decades of science showing that asbestos causes cancer such as mesothelioma and is associated with ovarian cancer, has had some success in courts.
Some Plaintiffs Awarded Millions of Dollars
In two cases in 2018 in NJ and CA, juries awarded millions of dollars to plaintiffs who blamed talc-based products from J&J for causing the mesothelioma or ovarian cancer.
Another verdict in St. Louis was a major legal headache for the company. In that case, 22 plaintiffs were awarded a stunning $4.7 billion by the jury for J&J’s products allegedly causing their ovarian cancer. Ovarian cancer is much more common than mesothelioma, so J&J’s legal exposure became much greater.
However, juries often also reject the argument that J&J Baby Powder was ever tainted with asbestos, so some litigants end up losing in court.
J&J Claims ‘Junk Science’
J&J always appeals any baby powder cancer verdicts that go against it. It continues to claim in public statements that all of its talc is safe. It also claims that this has been proven by years of testing and that the information it was required to divulge in the Reuters-reported documents has confused juries and is based on ‘junk science.’ J&J also has said unfair court rules and aggressive plaintiff attorneys looking to cash in have led to some of the ‘unjust’ jury verdicts.
For the Reuters report, J&J officials declined to make any comment. Reuters requested comments from the company for two months, but no executives would grant an interview. The only response J&J has made has come from outside litigation counsel. One of those attorneys dismissed the Reuters report as ‘false and misleading.’ Attorney Peter Bicks representing J&J said that the scientific consensus is that talc that is used in baby powder does not lead to cancer, no matter what is actually in the talc.
J&J Faces Criminal Probe Related to Baby Powder. (2019). Retrieved from https://www.reuters.com/article/us-johnson-johnson-talc-probe/jj-faces-u-s-criminal-probe-related-to-baby-powder-bloomberg-idUSKCN1U726J
Special Report: J&J Knew for Decades That Asbestos Lurked in Its Baby Powder. (2018). Retrieved from https://www.reuters.com/article/us-johnson-johnson-cancer-special-report/special-report-jj-knew-for-decades-that-asbestos-lurked-in-its-baby-powder-idUSKBN1OD1RQ