The plaintiffs behind these lawsuits are women who developed ovarian cancer after using talcum powders for many years in feminine hygiene, which they say is clearly an intended purpose of such products. Though Johnson & Johnson’s representatives claim that the company will fight these pending lawsuits with vigor, some members of the legal community suggest that talcum powder settlements may soon become a possibility.
Johnson & Johnson Found Liable In 4 Major Verdicts
Thousands of talc powder lawsuits are currently pending in district courts across the country. Only six have gone to trial so far. However, the majority of these verdicts are very encouraging for current and future talc plaintiffs. Johnson & Johnson has been found liable for negligence, failure to warn and other counts put forward by plaintiffs. In just five verdicts, the company has been ordered to pay almost $720 million in compensation to ovarian cancer patients and their families.
Deane Berg Refuses Talc Settlement
In 2009, Deane Berg became the first woman to file a talcum powder lawsuit against Johnson & Johnson. Her case, which went to trial in 2013, ultimately convinced a South Dakota jury that Johnson & Johnson should be held responsible for failing to warn the public of talc’s potential risks.
While the jurors agreed that Johnson & Johnson’s conduct amounted to negligence, they made the curious choice to award the Plaintiff herself no compensation. In subsequent interviews, including a powerful piece in the New York Post, Berg revealed that Johnson & Johnson had actually offered her a settlement, $1.3 million, before trial. Instead of accepting the company’s money, she chose to take her case public, in hopes of warning other women about what she considered an intolerable risk.
Why J&J May Offer Talc Powder Settlements
Beyond the early settlement offer extended to Deane Berg, there’s no evidence that Johnson & Johnson intends to settle other talcum powder cases. Company representatives claim that the plaintiffs’ attorneys have misrepresented the research linking ovarian cancer to talcum powder, saying that “the science” has always supported the safety of their products.
In public press releases, the company has repeatedly announced that it will fight each lawsuit in court. Time will tell whether or not this commitment is borne out.
How Do Settlements Work?
A settlement is an amount of compensation offered by a defendant to a plaintiff in order to resolve a lawsuit out of court. It’s an agreement, one that ideally will serve the interests of both parties involved. Settlement negotiations can be initiated at any time during a litigation. Many settlements are offered before a lawsuit even goes to trial. In large litigations, like the current talcum powder litigation, where thousands of similar lawsuits are pending, some defendants even choose to set up a “global” settlement fund that contains enough money to resolve all of the pending lawsuits, as well as future lawsuits regarding the same products.
Often, in order to receive compensation from a settlement fund, a particular percentage of plaintiffs must agree to settle their lawsuits. This creates pressure for all or most of the plaintiffs to settle in order to obtain damages and also to prevent other plaintiffs from being deprived of compensation. Unfortunately for future plaintiffs, settlement funds are often finite and and this may be used up by the current lawsuits. This is another reason why it’s crucial to file suit as soon as possible. If you file your lawsuit too late there may no longer be funds in a global settlement available for you.
Settling As Damage Control
Why would a major company like Johnson & Johnson consider offering settlements to plaintiffs? One main reason would be to prevent or minimize damage to their public image. Though Johnson & Johnson’s baby and body powders only produce a small percentage of the healthcare giant’s annual profits, Johnson’s Baby Powder is one of its most well-known and iconic products. As a result, the public’s perception of J&J’s talc powders could have a considerable impact on the company’s reputation as a whole.
Another consideration, of course, is whether or not Johnson & Johnson believes it has a good chance of winning further trials. Four juries have already decided to hold the company responsible; Johnson & Johnson is on the hook for $200 million in damages, although those awards could be cut down during the appeals process. In many ways, this is a cost-benefit analysis that the company will have to make. Pursue more lawsuits in court and Johnson & Johnson risks losing even more money, along with the trust and goodwill of consumers. How many losses can Johnson & Johnson sustain before settlements look like a better option?
Talc Litigation Echoes Asbestos Controversy
Asbestos, a group of six minerals that form long thin fibers, used to be employed in numerous products, particularly in building materials, fire retardant and all kinds of consumer products. However, starting in the 60’s, researchers began to find evidence that people exposed to asbestos, especially on a regular basis, were at a higher risk for developing lung cancer and other deadly respiratory conditions. Despite the increasing scientific evidence for the significant risks posed by asbestos, manufacturers refused to issue warnings, instead choosing to challenge the research.
As more and more people developed mesothelioma and lung cancer, however, regulatory agencies began to step in. By the 1980s, the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA) and other federal agencies started enacting bans on asbestos. Construction workers began filing lawsuits against asbestos suppliers. Soon, asbestos litigation became, by far, the largest mass tort litigation in US history. Tens of thousands of lawsuits were filed over asbestos and millions of dollars in compensation were awarded to injured employees and their families. Eventually, asbestos manufacturers decided to cut their court losses and established a number of trust funds. Mesothelioma victims were no longer required to file their lawsuits in court. Instead, they could file claims directly with a trust fund, securing compensation based on their injuries.
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