Will Johnson & Johnson Talcum Ovarian Cancer Claims Settle?
While no major talcum powder settlements have yet been announced, multiple large jury verdicts have brought the possibility of settlements into focus.
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Thousands of women have filed lawsuits against Johnson & Johnson, claiming the company’s talcum powders products, household staples for over a century, can cause ovarian cancer. In claim after claim, women and their families accuse one of the world’s largest corporations of concealing decades of medical research while failing to warn consumers about baby powder’s alleged risks.
Are Talcum Powder Settlements On The Way?
When ovarian cancer patients began to file these lawsuits more than 5 years, it was far from certain whether or not their legal arguments and evidence would carry the day in court. Today, the legal terrain is markedly different.
Across the country, juries have found Johnson & Johnson liable for failing to warn the public, holding the company liable for devastating injuries and harm caused by its baby powder products. In nearly a dozen jury verdicts, ovarian cancer sufferers and their loved ones have been awarded over $5 billion in compensation.
With these major plaintiff victories in the books, legal experts have begun to ask a new question: is a global talcum powder settlement on the horizon?
J&J Could Suffer From Massive Litigation
At this point, there’s no way to answer that question, but multiple jury losses have definitely put Johnson & Johnson’s corporate defense attorneys on notice. To date, despite these verdicts and the overwhelming evidence relied upon by plaintiffs, Johnson & Johnson has continued to contest its liability, standing behind its Shower-To-Shower and Johnson’s Baby Powder products at every turn. There has been no indication, at least in public, that the company intends to settle these claims.
In considering whether J&J plans to settle these claims, we cannot forget that baby powder is one of Johnson & Johnson’s flagship brands. Settlement does not require an admission of wrongdoing; in fact, most settlement agreements allow defendants to resolve a case without admitting anything. If Johnson & Johnson were to begin settling baby powder cases, it’s highly likely that the agreement would include a clause in which the company denies any and all wrongdoing. Even so, settling massive litigation filed over the “soft” and “gentle” talcum powder products probably wouldn’t be good for Johnson & Johnson’s public image.
However, like any large corporate defendant, especially one faced with mounting litigation and enormous potential liability, Johnson & Johnson will, at some point, have to make a strategic decision. Is raising a continued defense sustainable? The cost of litigating tens of thousands of individual talcum powder lawsuits is certain to be astronomical, even for a corporation that rakes in almost $45 billion in gross income every year.
Multi-District Litigation Could Spur Settlement Talks
In discussing the possibility of settlement, it’s extremely important to note that many of the talcum powder cases have now been consolidated in a Multi-District Litigation. More than 18,000 federally-filed claims have been transferred to the United States District Court for the District of New Jersey, where the Honorable Freda L. Wolfson has been appointed to preside over the centralized litigation.
What Is A Multi-District Litigation?
Multi-District Litigation, or MDL, is a legal mechanism utilized in the federal court system after a large number of similar lawsuits are filed in different venues across the country. Instead of allowing these lawsuits to proceed in isolation in the various venues across the country, a panel of federal judges referred to as the Judicial Panel on Multi-District Litigation has the authority to consolidate these lawsuits by order that all of the similar lawsuits must be transferred to a single court. In their new transferee court, the consolidated lawsuits undergo pre-trial proceedings as a group, allowing the litigation to take a more efficient path.
A similar legal mechanism, known as Multi-County Litigation, or MCL, can be used to coordinate the processing of claims filed in state courts. In New Jersey, over 500 talcum powder lawsuits have been coordinated in an Atlantic County state court, while nearly 2,000 similar cases have been centralized in the St. Louis Circuit Court in Missouri. A parallel litigation is proceeding in the Los Angeles Superior Court, where over 800 state court talcum powder claims are currently pending.
How A Consolidated Proceeding Impacts The Possibility Of Settlement
In many ways, MDL and MCL proceedings are structured to encourage settlement. Many MDL and MCL judges will schedule mandatory settlement conferences, to be held as the cases proceed toward trial. In some MDL proceedings, plaintiffs’ attorneys are ordered to appoint a settlement panel, which focuses on nothing but negotiating a pre-trial resolution to the claims.
Whether or not Judge Wolfson will take any of these measures in structuring the consolidated talcum powder litigation is unknown; it’s far too early in the MDL for these considerations. Even so, the history of past Multi-District Litigation proceedings suggests that settlement, not a protracted series of court trials, will be the goal.
Settlements can be reached at any point during litigation. Some MDL proceedings are resolved before even the first trial takes place. In cases when a settlement does not appear forthcoming, when both sides are willing and eager to have a jury hear the evidence in court, many MDL judges decide to allow the facts to be presented to a jury which then issues a verdict at the conclusion of the trial.
After the cases have been prepared for trial, MDL judges frequently schedule a series of “bellwether” trials. These bellwether trials act like test cases, allowing both sides in the dispute to evaluate their arguments and evidence before an actual jury.
The verdicts rendered in bellwether trials are very real, but they are only binding on the plaintiff directly involved in that specific lawsuit. For other plaintiffs in the litigation, however, the results of bellwether trials can be very important. In part, these verdicts come to structure ongoing settlement negotiations, helping attorneys on both sides place a financial value on various types of cases.
Though a number of juries have scrutinized the claims of ovarian cancer patients at trial, no bellwether trials have yet been held in the consolidated Multi-District Litigation. The trials that have been held thus were heard in Missouri and California state courts.
What Is A Global Settlement?
Multi-District Litigation, since it brings numerous cases together in a single jurisdiction, makes the prospect of a global settlement possible. Because the claims have been consolidated, defendants are no longer required to enter into settlement agreements with each plaintiff individually. Instead, the cases can be settled together, in one global settlement.
In many MDL proceedings, global settlement involves the creation of a special trust fund from which the plaintiffs can secure financial awards. Generally, awards are decided in proportion to a plaintiff’s injuries; patients who suffered greater degrees of harm, or were required to undergo more rigorous treatments, will be eligible to secure more compensation.
In most cases, the total settlement amount will be set in advance; it won’t change, even if formerly-unidentified plaintiffs come forward to make their own claims against the settlement trust fund. If, for example, 999 plaintiffs deplete the settlement fund through their own claims, the 1,000th plaintiff would not receive any compensation, no matter how severe their case of ovarian cancer.