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Johnson & Johnson Wins First Mesothelioma Trial


. By Anne Wallace

On November 16, 2017, a jury in Los Angeles Superior Court rejected Tina Herford’s argument that Johnson & Johnson’s Baby Powder and Shower to Shower talc products caused her mesothelioma. Her lawyer remains sanguine: “J&J is still selling contaminated baby powder. It is a matter of time before juries begin holding them to account,” he said of her talcum powder lawsuit. “We just missed on the first one.”

The mesothelioma cases are distinct from the talcum powder lawsuits that focus on ovarian cancer. Two reasons stand out: first, mesothelioma cancer has an extremely long latency period, sometimes as long as 50 years. The longer the elapsed time, the greater the possibility is that there was an intervening cause. J&J made that argument at trial.

Second, since the asbestos levels in talc have been monitored since the mid-1970s, winning a mesothelioma talcum powder lawsuit requires proving that 40 or 50 years ago the talcum powder in question was contaminated with asbestos. It’s hard to find samples that old. Plaintiffs had to fall back on eBay and collectors. In its defense, J&J relied on contemporaneous testing, which may have used different methodology and standards.

The causal link between asbestos exposure and talc is well established. Although circumstantial at best, the possibility that talc might be contaminated with asbestos fibers is plausible since the minerals often occur in natural outcroppings together.

More specifically, according to internal J&J reports from 1973 and 1974, possible asbestos contamination appears to have been a source of concern at talc mines in Vermont and Turin where J&J sourced talc. As reported in Bloomberg, company documents initially unsealed in a different lawsuit concluded that the talc used by J&J to make its products “is not now, nor has it ever been, free from asbestos and asbestiform fibers.’’

Finally, in what appears to have been an attempt to mislead consumers, the company exerted pressure on its Italian supplier to stop the distribution of a booklet that revealed the discovery of trace amounts of asbestos in the talc from that mine. J&J also allegedly trained its employees to reassure anyone concerned about asbestos contamination that the substance had never been found in its baby powder.

Although the jury found for J&J in Herford’s case, there seems to be more than enough smoke to suggest fire. More mesothelioma talcum powder lawsuits can be expected.

The case is Herford et al v. AT&T Corp et al, Los Angeles Superior Court, No. BC646315.

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