Talcum powder cancer litigation has become one of the most significant mass torts in recent years. With nearly 38,000 lawsuits filed, it is the second-largest multidistrict litigation in the United States. The litigation concerns claims that talcum powder products can lead to ovarian cancer and mesothelioma. Since October 2021, the litigation has been in a holding pattern due to Johnson & Johnson’s controversial bankruptcy filings.
About Talcum Powder Lawsuits
Talc is a naturally occurring mineral that companies have used for decades in personal care products such as baby powder and cosmetics. Companies pulverize talc to create talcum powder, known for its absorbent, soothing, and odor-resistant properties. Talc is often mined in close proximity to asbestos, a carcinogenic mineral highly regulated in the United States.
Asbestos was once a popular addition to thousands of U.S. products, such as insulation, automotive parts, cement, building materials, and electrical parts. Once more information became available on the dangers of asbestos, the U.S. began to phase out this mineral but has stopped short of banning it. When mining for talc, companies may extract talc with trace amounts of asbestos.
However, asbestos is not the only alleged carcinogen in talc. Plaintiffs claim other heavy metals in talc, including heavy metals like lead, cadmium, arsenic, and mercury, can cause ovarian cancer. In addition to asbestos, trace amounts of these toxic metals may be found in talc, further highlighting the danger of this mineral.
Despite this risk, talcum powder remained a prevalent ingredient in many personal care products. As a result, thousands of lawsuits have been filed by individuals who allege that using talcum powder products gave them cancer. These lawsuits argue that manufacturers knew about the potential risks of talc but failed to warn consumers.
Companies Involved in Talcum Powder Claims
Several companies have incorporated talcum powder into their products, but the primary target of talcum powder lawsuits remains Johnson & Johnson.
Johnson & Johnson is a well-known consumer goods and pharmaceutical company that used talcum powder in its products for more than a century. The company has been a major player in the talc industry, with its iconic baby powder product being one of the most recognized talc-based products in the world.
Over the years, Johnson & Johnson has faced increasing scrutiny over its use of talcum powder in personal care products, with several studies and lawsuits alleging these products may contain cancer-inducing asbestos. Johnson & Johnson has vigorously defended the safety of its talc products. Yet, the company announced in 2022 that it would remove all talc-based products globally in 2023.
Individuals have also filed talcum powder lawsuits against the following companies:
- Colgate-Palmolive – manufactured the talc-based powder Cashmere Bouquet
- Imerys Talc America and Vanderbilt Materials – two of the largest talc mining operations
- Avon – cosmetics company that used talcum powder in its products
- Mary Kay
Injuries Connected to Talcum Powder Products
Prolonged exposure to talc-based products may result in severe forms of cancer. In particular, many women have used talcum powder products in their feminine hygiene routine, but these products may increase the risk of ovarian cancer. Additionally, talcum powder products contaminated with asbestos may cause mesothelioma, a rare and aggressive type of cancer.
Typically, ovarian cancer goes unnoticed, as it is usually unaccompanied by symptoms in the early stages. Without proper identification and treatment early on, ovarian cancer can spread to the pelvis and belly in later stages. At this point, it is challenging to treat and can prove fatal. Ovarian cancer ranks fifth in cancer deaths among women, accounting for more deaths than any other female reproductive system cancer. The American Cancer Society’s estimates for ovarian cancer in the United States for 2023 are:
- About 19,710 women will be diagnosed with ovarian cancer.
- About 13,270 women will die from ovarian cancer.
Research suggests that using talcum powder for feminine hygiene may increase the risk of developing ovarian cancer. The theory is that talc particles when applied to the genital area, can travel through the female reproductive system, and settle in the ovaries. Once in the ovaries, these particles can cause inflammation, increasing the risk of cancerous growth and tumors.
Mesothelioma is a rare and aggressive form of cancer that affects the lining (mesothelium) of the lungs, abdomen, heart, and other organs. Asbestos exposure is the leading risk factor for developing mesothelioma, accounting for 80% of all cases. When using a talcum powder product, an individual may inhale or ingest asbestos fibers that can then become lodged in the lining of their organs. Tumors can form along the damaged tissue, resulting in mesothelioma.
The life expectancy for mesothelioma patients is short, with the annual death rate nearly matching the rate of incidence. Approximately 2,500 people die of mesothelioma every year, compared to the 3,000 who are diagnosed annually.
MDL for Talcum Powder Lawsuits Against Johnson & Johnson
The first talcum powder lawsuit against Johnson & Johnson was filed in 2009. By 2016, Johnson & Johnson had already lost two state trials, and the company had accumulated at least 1,800 talcum powder lawsuits in St. Louis. In response to the growing number of claims, the U.S. Judicial Panel on Multidistrict Litigation (JPML) established a multidistrict litigation (MDL) to consolidate talcum powder cancer lawsuits against Johnson & Johnson in October 2016.
These lawsuits allege that Johnson & Johnson’s talcum powder products, primarily Johnson’s Baby Powder and Shower to Shower body powder, cause ovarian cancer and mesothelioma. The MDL examines the risk of cancer posed by talc and talc-based body powders, whether Johnson & Johnson knew or should have known of this alleged risk, and whether the company provided adequate instructions and warnings to the public.
By December 2021, the MDL had accrued more than 37,000 lawsuits from individuals who claimed that Johnson & Johnson’s talc-based products caused them to develop ovarian cancer or mesothelioma.
Johnson & Johnson’s “Texas Two-Step” Bankruptcy
In October 2021, faced with mounting talcum powder lawsuits, Johnson & Johnson resorted to what is known as the “Texas Two-Step” legal maneuver. The company established a new subsidiary, LTL Management, in Texas and transferred all talc-related liabilities and products to this new entity.
Shortly after, LTL Management filed for bankruptcy, effectively pausing all talcum powder lawsuits against Johnson & Johnson. The move also included a $2 billion trust set up by Johnson & Johnson to settle future talcum powder litigation. However, many attorneys argued that the $2 billion trust was inadequate to cover the tens of thousands of remaining lawsuits, given that Johnson & Johnson had already lost $3.5 billion in verdicts related to talcum powder cases.
This tactic sparked outrage as plaintiff attorneys accused the company of abusing the bankruptcy system to evade the increasing number of talcum powder cases and limit its financial exposure. Opponents of the bankruptcy contended that J&J is a multibillion-dollar corporation with the necessary resources to battle litigation in multidistrict litigation. While Johnson & Johnson proclaimed it had enacted this bankruptcy to efficiently and fairly resolve talcum powder claims, plaintiffs and their attorneys remained unconvinced.
Much to the dismay of plaintiffs, Johnson & Johnson received the approval of U.S. Bankruptcy Judge Michael Kaplan to continue with its Chapter 11 petition in February 2022. Judge Kaplan reasoned that the bankruptcy court is an appropriate venue for J&J to reach a global settlement to pay current and future talc lawsuits rather than litigating individual claims in court.
Appeals Court Dismisses Johnson & Johnson’s Bankruptcy
On January 30, 2023, the U.S. 3rd Circuit Court of Appeals in Philadelphia overturned Judge Kaplan’s decision. The court found that LTL Management was not in financial distress and therefore did not meet the requirements for filing for bankruptcy under the Bankruptcy Code’s safe harbor provision. Because LTL Management possesses J&J’s talcum powder products and brands, valued at more than $61.5 billion, and its parent company’s valuation exceeds $400 billion, the court held LTL Management has access to ample funding to litigate talcum powder claims outside of bankruptcy.
Johnson & Johnson asked the 3rd Circuit Court of Appeals in Philadelphia to reconsider its position, but the court rejected this request. The company then asked the court to delay its ruling from taking effect until J&J could pursue a U.S. Supreme Court appeal. However, the 3rd Circuit denied this request to pause its ruling and instead directed U.S. Bankruptcy Judge Michael Kaplan to dismiss LTL’s Chapter 11 bankruptcy case on March 31, 2023.
Johnson & Johnson’s Second Bankruptcy Attempt
Johnson & Johnson has refused to give up on resolving talc litigation through bankruptcy court. It became apparent to the company that the appeals court would not reconsider its ruling and that the U.S. Supreme Court was unlikely to hear its plea to overturn the dismissal. In a last-ditch effort, Johnson & Johnson initiated a second bankruptcy filing on April 4, 2023. The company announced that it would fund an $8.9 billion talc settlement to pay current and future plaintiffs, a substantially larger fund compared to the $2 billion it proposed with its first bankruptcy attempt.
Johnson & Johnson claimed the settlement had garnered overwhelming support from plaintiffs, citing law firms representing more than 60,000 claimants as having backed the plan. However, many plaintiff attorneys consider Johnson & Johnson’s second bankruptcy attempt fraudulent, calling for courts to dismiss this renewed plan. These opposing attorneys note that most firms that signed in support of J&J have never filed a talc-related lawsuit against the company. Also, lawyers have criticized the company for transferring $50 billion in assets from LTL Management to get around the appeals court’s assessment that it was not in financial distress.
On April 24, 2023, the Official Committee of Talc Claimants filed a motion urging the court to dismiss Johnson & Johnson’s second bankruptcy filing.
Status of Talcum Powder Litigation
The dismissal of Johnson & Johnson’s first bankruptcy filing lifted the stay placed on talcum powder claims. Seven new cases had been filed and transferred into MDL. 2738 following the dismissal, bringing the total number of actions pending in federal court to 37,523 in April 2023.
However, Johnson & Johnson’s second bankruptcy has once again paused talcum powder lawsuits in the MDL. As of May 2023, it is uncertain whether Johnson & Johnson’s second bankruptcy filing and $8.9 billion settlement will prevail. The company wants plaintiffs to vote on the settlement, which would require a 75% approval rate to pass.
Talcum Powder Settlements and Verdicts
There have been fifteen talcum powder cancer trials between 2013 and 2021, resulting in seven plaintiffs’ verdicts, six defense verdicts, and two mistrials. While there is no global settlement for talcum powder claims, Johnson & Johnson agreed to settle roughly 1,000 cases for more than $100 million in 2020.