In the long legal fight over allegations that talc in Johnson & Johnson baby powder is linked to ovarian cancer, plaintiffs got an incremental victory on Monday: A federal appeals court rejected J&J’s effort to move more than 38,000 lawsuits to bankruptcy court.
Plaintiff Deborah Smith’s case was held up for 15 months because of the attempted maneuver, a legal strategy colloquially known as the Texas Two-Step. J&J’s approach relied on the creation of a subsidiary called LTL Management that could take on the liability for talc-related legal claims. Within days of its creation in 2021, LTL filed for Chapter 11 bankruptcy.
By that time, more than two years had passed since Smith filed her suit. The news of the Two-Step, she said, felt like “a slap in the face.”
“If that was someone in their family, would they drag it out like that?” Smith said. “It’s almost like they’re playing a waiting game to see how many people will just die or just give up fighting.”
Smith was diagnosed with ovarian cancer in 2003, she said, after her doctor discovered a tumor during a procedure to remove a uterine fibroid. She had two surgeries and three cycles of chemotherapy, she added, leading her hair to fall out in bunches. It never grew back properly, so Smith said she still wears wigs.
According to Smith’s suit, she used J&J’s baby powder as a feminine hygiene product to absorb sweat and keep her skin dry for more than 15 years. The suit says Smith also used Shower to Shower, a talc-based product formerly manufactured by J&J, until 2003.
Smith’s lawsuit cites more than 25 published studies dating back to 1982 that evaluate a link between talc and ovarian cancer risk. The suit alleges that nearly all those studies document a particular risk associated with using talc on the genital area. The World Health Organization’s International Agency for Research on Cancer considers this use to be “possibly carcinogenic.”
Smith is seeking punitive damages as well as compensation for medical expenses and pain and suffering. Her cancer has been in remission since 2005, she said.
“Even though I’ve been cancer-free all those years, when I go to the doctor to have any kind of test, I’m always wondering if they’re going to find something wrong,” Smith said.
J&J has faced mounting lawsuits for roughly a decade, with plaintiffs alleging that their ovarian cancer or mesothelioma — a rare cancer affecting the thin layer of tissue that lines the chest and abdomen — was caused by asbestos found in the company’s talc-based baby powder. J&J has consistently denied that its talc-based products contained asbestos.
“We continue to stand behind the safety of Johnson’s Baby Powder, which is safe, does not contain asbestos and does not cause cancer,” a J&J spokesperson said.
However, a 2018 Reuters investigation suggested that J&J knew some of its baby powder was contaminated with small amounts of asbestos as early as the 1970s. Reuters reported that it obtained J&J company memos, internal reports, confidential documents, and deposition and trial testimonies. According to that investigation, the earliest known lawsuit linking ovarian cancer and J&J baby powder was filed in 1997. J&J denied to Reuters that it knew of or hid any talc-related safety issues and said independent tests had shown its talc did not contain asbestos.
Dr. Arthur Frank, an environmental and occupational health professor at Drexel University, said the protocols used in the independent asbestos tests that J&J has relied on aren’t as sensitive as some other detection methods.
“Depending on which laboratory you go to that does a more diligent search than the industry did, you can certainly find asbestos in many products,” Frank said.
J&J pulled its talc-based baby powder from the North American market in 2020 and switched to a formula that uses cornstarch. The company said it remained confident in the safety of its baby powder and that its decision was based on declining consumer demand due to “misinformation around the safety of the product.” J&J has said it will stop selling talc-based baby powder globally this year.
Talc and asbestos form together in nature, so raw talc collected via mining may contain asbestos fibers that can wind up in talc-based products.
“There’s no process that these manufacturers use that can remove the asbestos from the talcum materials that they’re putting out there,” Frank said.
Asbestos can cause several types of cancer, including mesothelioma and lung, laryngeal and ovarian cancer. No amount of exposure is considered safe, according to the Occupational Safety and Health Administration. People who are routinely exposed to asbestos fibers or get exposed to large amounts face a greater health risk, Frank said.
The WHO considers talc that contains asbestos to be carcinogenic but does not classify pure talc as a cancer-causing agent.
Mary Ann Bingheri, who lives in Houston, used J&J’s baby powder as a feminine hygiene product from 1968 to 2016, according to her lawsuit. Her suit says she used Shower to Shower as well.
Bingheri said she was diagnosed with stage 3 ovarian cancer in 2008, which necessitated a year of chemo. The cancer returned in 2012, she said, prompting another year of chemo treatments and around 35 rounds of radiation.
“The first time it was the size of a cantaloupe. The second time they found it, the tumor was the size of a larger golf ball,” she said.
Bingheri said she lost her job as an office manager after taking time off for chemo and surgery. Her lawsuit has also been held up due to J&J’s legal maneuver.
“I’ve come to the point where I just want to see justice being done for everybody that’s gone through this,” Bingheri said.
Leigh O’Dell, a lawyer at Beasley Allen law firm who represents Bingheri as well as Smith, said both suits cite the same body of scientific evidence.
Bingheri said she now fears that her two daughters, ages 37 and 48, could also be at higher risk for cancer, since she used the powder on them as babies. For asbestos-related diseases, the time between exposure and symptoms can range from around 10 to 50 years.
In the recent appeals court decision, judges determined that LTL Management is not in financial distress and has the resources to pay claims, so the court dismissed the subsidiary’s bankruptcy filing.
It was the first time an appeals court has ruled against the Texas Two-Step maneuver, according to legal experts. (The court did not invalidate the strategy but ruled that J&J cannot use it in this instance.)
In recent years, several other companies have attempted similar strategies, Reuters reported, including construction giant Saint-Gobain and manufacturing company Georgia-Pacific, owned by Koch Industries. The maneuver’s name refers to the Texas law used to divide up a company being sued in order to form a subsidiary that can absorb liability. J&J initially planned to give LTL $2 billion to compensate all 38,000 current plaintiffs, as well as any future claimants, according to Reuters.
A J&J spokesperson said LTL Management initiated the process to transfer lawsuits to bankruptcy court in good faith to benefit all parties. LTL’s website suggests that cases could be resolved more quickly that way, whereas “addressing each and every one of the talc cases on an individual basis could take thousands of years.”
“The Chapter 11 process brings everyone to the table to negotiate an agreement, provides for the quickest and most efficient resolution for people who have legal claims related to talc and provides certainty for all parties,” the website says.
Neal Katyal, outside counsel for LTL Management and a contributing legal analyst for MSNBC, said the company will seek another hearing by the entire Third Circuit Court of Appeals, as opposed to the three-judge panel that ruled against J&J.
Lawyers representing plaintiffs in suits against J&J said the latest decision finally allows their clients to resume moving toward trial.
“Our clients will, once again, have a chance to obtain justice in their lifetimes — whether through arm’s length settlements negotiated with the threat of a jury trial hanging over both parties’ heads or through verdict. This right to a jury trial is guaranteed in the Seventh Amendment to the Constitution,” said Jonathan Ruckdeschel, a lawyer representing plaintiffs in several talc cases.
O’Dell said she was “pleased to see the court reject a strategy that J&J employed essentially to move these cases out of venues where they felt that they were not being successful, and to transfer them into a bankruptcy court, where they felt that they could control the environment.”
Thus far, J&J has faced $3.5 billion in verdicts and settlements in talc-related cases, Reuters reported. Of that, $2 billion came from a single suit involving 22 women. An appeals court reduced that award from an initial verdict of $4.7 billion.
However, courts have dismissed another 1,500 talc lawsuits against the company.