What next for talc litigation?

On 11 August Johnson & Johnson (J&J) announced that it is to stop global sales of its talcum-based powders in 2023, switching to cornstarch-based baby powder.

At the same time, J&J reiterated its stance that its talc-based powder does not contain asbestos and does not cause cancer. The American multinational corporation has been defending tens of thousands of mesothelioma and ovarian cancer claims in the US since 2009, attracting widespread media attention.

J&J stopped selling its talc-based powder in the US and Canada in 2020. The official reason given at the time was an economic one, namely the declining sales due to “misinformation” fuelled by the huge number of injury lawsuits brought against the company.

Talcum powder is a naturally occurring mineral that has been used by the cosmetics and personal care industry for more than 100 years. It exists in seams which need to be mined, and these seams are often found proximate to seams of asbestos. It is plausible that trace amounts of this carcinogenic ingredient could contaminate the talcum powder at the extraction stage. The likelihood of contamination was officially recognised by the International Agency for Research on Cancer (part of the World Health Organisation) in 2016, when it declared that perineal use of talcum powder could be “possibly carcinogenic”. The majority of scientific studies in this field have, however, not found overwhelming evidence supporting a link, presumably because they have relied on a person’s memory of their talc use throughout a long period of time. Findings have been mixed, with some studies showing an increased risk and others reporting no increase.

Other risk factors, such as a genetic disposition, hormone replacement therapy and obesity, are widely accepted as increasing the risk to a person of contracting ovarian cancer. Coupled with the fact that ovarian cancer is not common, the scientific evidence supporting a link between the use of talcum powder and cancer is not unequivocal. In 2018, a Reuters investigation found that J&J had known for decades that its raw and finished talc products contained asbestos and therefore posed a carcinogenic threat to its consumers.

Jury verdicts against J&J in the US have been mixed. Some claimants have been awarded millions in damages, such as in St Louis, where various appellate courts have declined to overturn an award of $2.5bn in favour of 20 women who alleged their ovarian cancer was caused by talc. But in some other cases, juries have declined to find against J&J, or verdicts have been overturned on appeal. Nevertheless, the exposure is a huge issue for J&J and it has been battling to contain its liability in the more than 38,000 remaining claims.

J&J is thought to have incurred more than $1bn in legal fees and paid out $3.5bn in settlements to date. J&J is attempting to use a bankruptcy process in North Carolina Bankruptcy Court for LTL Management (LTL), the subsidiary created solely to hold its talc liability. This move includes a $2bn provision to resolve current and future talc claims. Earlier this year, LTL survived motions to dismiss its Chapter 11 case when a New Jersey judge said the bankruptcy offers the best opportunity for claimants to receive damages. In July, the judge ordered an estimation process to establish the combined value of all the talc injury claims in the Chapter 11 case.

The rigorous medical causation test in the UK would more than likely prevent the same types of claims being brought here, and to date we have not seen any claims activity, but could that prediction change in light of the global sales ban?

In January 2020, the NHS reiterated the findings of a new review that there is “no evidence” that talcum powder causes ovarian cancer. Although UK insurers continue to monitor the progress of lawsuits in the US, it does seem unlikely that talc litigation will take off. The decision in Gee v DePuy & Ors [2018], a case that was concerned with allegations of defective prostheses, appears to represent the most definitive gauge of the UK’s position. In short, it was considered that the evidence cited by the claimants could not be relied on because there were too many potentially confounding factors skewing the findings, much of the primary data was unreliable and the underlying studies referred to in reports were inadequate.

Any potential defendants in future talc litigation will refer to Gee as a good example of how scientific studies into healthcare products fail to stand up to judicial scrutiny, and the global sales ban is unlikely to have any bearing on the stringent medical causation test applied in the UK courts.

Contributed by David Wynn, partner in the disease team at Clyde & Co

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