Talc-based cosmetic products have been linked to ovarian cancer, mesothelioma, and other serious health problems in recent years. Start here to understand the link between talc and asbestos, the potential liability of manufacturers of products like baby powder, and key considerations when filing a talc-cancer lawsuit.
Talc is a naturally-occurring mineral that is used in a number of products, including makeup, cosmetics, and baby powder. Talc is often mined alongside (and can contain traces of) asbestos, another naturally-occurring mineral, but one that's a known carcinogen. Once used in a wide range of products, for decades asbestos has been linked to the development of mesothelioma (a form of cancer) and other serious illnesses.
In October 2019, the U.S. Food and Drug Administration (FDA) reported that, after a year-long study of talc-containing cosmetic products, 43 samples came back negative for asbestos, but nine were positive. The agency then worked with a number of manufacturers on recalls of some of the asbestos-containing products, including Johnson & Johnson, which ended up recalling a single lot of its popular Johnson's Baby Powder later that month. Then, in April of 2020, already facing thousands of lawsuits alleging a link between its talc products and cancer diagnoses, J&J announced that it would no longer sell its Johnson's Baby Powder product in the U.S. or Canada.
These weren't the first headlines linking J&J products to asbestos. According to a 2018 investigative report by Reuters, the company may have known about the presence of asbestos in its talc products for decades, with company documents and sworn testimony indicating that both raw talc used by the company and certain finished products tested positive for low levels of asbestos over the years.
Beyond baby powder, a November 2020 lab test of talc-based cosmetics by the Environmental Working Group found that almost 15 percent of the products sampled contained asbestos. According to an EWG news release, the cosmetics industry in general is doing an inadequate job of screening its supplies of talc.
While there is no consistent, definitive link between asbestos and talc products, with only a small percentage of products testing positive, the key here is that there is no known safe level of exposure when it comes to asbestos. So the presence of any amount of asbestos in baby powder or any other cosmetic product raises legitimate health concerns, and nudges open the door to liability on the part of manufacturers like Johnson & Johnson. That's especially true when a consumer probably wouldn't reasonably expect cosmetic products to contain asbestos. We're not talking about brake pads and insulation.
Filing a personal injury lawsuit against the manufacturer or seller of a talc-based product like baby powder means being able to demonstrate that you've developed an illness (like ovarian cancer) that might be attributable to your use of the product, usually over an extended period of time (that typically means years, not weeks).
The mere fact that you've used baby powder or a similar product (or that you have a bottle of it in your medicine cabinet) isn't enough to file an injury/illness lawsuit against a company like Johnson & Johnson. It's also not enough to sue over the company's failure to warn consumers of potential health risks linked to use of the product. These cases require measurable harm, and it all starts with an accurate diagnosis.
Diagnosis of a talc-related illness like ovarian cancer goes straight to the nature and extent of your losses ("damages" in legalese). The plaintiff in a talc-cancer case almost always experiences both "economic" damages (including the cost of past and future medical treatment, lost income, and other quantifiable losses) and "noneconomic" damages such as "pain and suffering" and similar, more subjective impacts related to their health problems.
A lawsuit alleging illness caused by a talc product will almost certainly be based on a personal injury fault theory known as "product liability," which can be used to hold manufacturers responsible for injuries and illnesses linked to a defective or unsafe product, or for failure to warn consumers of risks associated with the product's use. (Learn more about proving a product liability case.)
With any lawsuit, a big first consideration is the case-filing deadline in your state, but in a talc-cancer case, these time limits can sometimes take center stage, at least initially.
Deadlines for filing any kind of lawsuit are set by a law called a "statute of limitations." In some states, the statute-of-limitations deadline that will apply to a talc-cancer lawsuit is the same as the one that applies to most personal injury cases. Other states have a separate statute of limitations for product liability lawsuits. Whichever statute applies, you'll typically have two to three years to get your lawsuit filed (the deadline is shorter in some states, longer in a few), but it's not always easy to figure out when the "clock" starts ticking in these kinds of cases.
A lawsuit for illness linked to a product like baby powder isn't like most other kinds of personal injury cases. If you slip and fall on a wet floor, for example, your injuries typically make themselves known right away, and there's little doubt about the cause of your harm. When you're alleging illness linked to long-term use of a product, it's nearly impossible to determine exactly when that use actually caused health problems. This is a big reason why the statute of limitations "clock" might not necessarily start running on the date of your last use of a talc-based product.
Under the "discovery rule" in most states, the clock might start only when the plaintiff discovers (or should reasonably have discovered) that they were harmed by use of a talc product like baby powder. That date might coincide with a diagnosis of a health problem linked to talc or asbestos, or the plaintiff's first experience of symptoms of such a health problem (alongside public indications that talc may be linked to those symptoms). But keep in mind that if a significant number of years have passed between your last use of a talc product and the onset of your illness, another time limit called the "statute of repose" might prevent you from bringing a case against the product manufacturer. (Learn more about how statutes of limitations and statutes of repose work in product liability cases.)
Regardless of how long it's been since you last used a talc product, talk to an attorney for details on lawsuit-filing deadlines and how they might apply to your specific situation.
As of January 2021, there is no current class action involving claims that use of baby powder or a similar talc-product caused illness or injury. That's partly because, in a class action, one or a few individuals represent the interests of all class members, and everyone in the class is bound by the result. With lawsuits alleging illness caused by baby powder or another talc product, even among plaintiffs who have used the same product, there's too much disparity among individual cases (in terms of variables like severity of illness and impact on the plaintiff's life and livelihood) to make a class action appropriate.
The largest single consolidation of talcum powder product claims is a federal "multidistrict litigation" (MDL) action over Johnson & Johnson products (like Johnson's Baby Powder), which includes thousands of lawsuits. The MDL (called "Johnson & Johnson Talcum Powder Litigation") is being handled by Judges Freda L. Wolfson and Lois H. Goodman in the U.S. District Court for the District of New Jersey. Note that this MDL includes a number of cases originally filed in state court and later "removed" to the MDL, usually at Johnson & Johnson's request. Keep in mind that the MDL is a consolidated group of individual cases in which the plaintiffs still largely control their own legal destinies. Your attorney will determine the best course of action for your case.
As with all injury-related legal claims, the value of a talcum powder lawsuit will depend on the plaintiff's unique experience and circumstances, including:
(Get more tips on damages in a product liability case.)
As with all personal injury cases, most talc-cancer lawsuits will end up reaching an out-of-court settlement at some point (the vast majority won't end up in a trial, in other words). But it's not easy to predict how much a plaintiff might receive in settlement. That's because every case is different when it comes to clarity of the defendant's liability and the spectrum of the plaintiff's damages. And comparison of settlement outcomes is usually impossible because, by their very terms, settlement agreements are almost always confidential. The plaintiff agrees to accept a certain amount of compensation to resolve his or her case and release the product manufacturer from any future liability over the incident, the manufacturer promises to pay the plaintiff the agreed-upon dollar amount, and both sides agree to keep the terms of the settlement private.
A notable talcum powder-related settlement deal emerged in October 2020, when Bloomberg reported that Johnson & Johnson had paid over $100 million to resolve 1,000 lawsuits in which consumers alleged that Johnson's Baby Powder caused their cancer. That works out to around $100,000 per lawsuit, although there are no details on whether the funds will be distributed equally, based on the severity of a given claimant's illness, or according to some other formula.
It should be noted that while Johnson & Johnson is facing upwards of 35,000 lawsuits over the safety of their talc-based products, it's not the only big company being dragged into court. Other manufacturers named in similar cases include Revlon, Chanel, Avon, and Colgate-Palmolive. Talc suppliers and even drug stores have also been sued by consumers. The wave of litigation has many cosmetic companies pivoting away from use of talc in their products, according to Reuters.
Jury verdicts after product liability trials aren't necessarily the best yardstick against which to measure the value of your potential talc-cancer lawsuit. When a plaintiff wins a trial like this, they often win big. And most talc-cancer lawsuits to reach the trial stage as of early 2021 have only involved cases against Johnson & Johnson. Having said that, let's look at a few recent plaintiffs' verdicts and appeals courts decisions:
If you're thinking about filing a lawsuit over your development of ovarian cancer or some other health problem linked to use of a talc product (like baby powder), having the right attorney can make a big difference in the outcome of your case. But how do you choose a lawyer who's right for you?
Asking for a referral from someone you know and trust can be a good way to find legal help. If someone in your inner circle has had a positive experience with a certain lawyer, it might make sense to reach out to that lawyer as a first step. Even if he or she doesn't handle product liability cases against big companies like Johnson & Johnson, they may be able to refer you to a qualified lawyer in their network.
State bar associations usually have websites that allow you to research lawyers and find out the kinds of cases in which they specialize, and whether they've been subject to any discipline. And online resources like Nolo let you connect with lawyers via chat and information submission features, or just put together an initial list of candidates you might want to get in touch with.
Whether you talk to a lawyer in person, over the phone, or online, here are some topics you might want to ask about:
Remember to consider any special needs you might have, and any practicalities. Check out more questions to ask a potential personal injury attorney.
As touched on above, your talcum powder cancer lawsuit will almost certainly be handled on a "contingency fee" basis. This means if your case settles, or you receive a verdict in your favor after a civil trial, your lawyer receives an agreed-upon percentage of your compensation. A standard contingency fee agreement in an injury case sees the lawyer receiving one-third of the plaintiff's compensation, but especially in more complex kinds of litigation like talcum powder cancer lawsuits, the lawyer's percentage might increase as the case progresses. If the client receives nothing from the defendant, the lawyer doesn't receive compensation for his or her legal services.
Always read the fine print of any attorney-client agreement before signing, especially when it comes to who is on the hook for case expenses or "costs", and when (whether the deduction of costs will come before or after the attorney takes his or her percentage of a settlement or judgment, for example).
Even if you think you have a good case, be prepared for a lawyer to turn down the opportunity to represent you. Many lawyers do not take cases if they fall below a certain potential recovery amount, or if a key element of the case is less than clear. Maybe you have a long history of using baby powder or a similar product, but haven't received a diagnosis of a specific health problem, for example. Be prepared to keep looking for help with your case, or to look again as your situation changes. (Get more tips on getting help from an injury lawyer.)