Having lost four talc cases worth more than $300 million, Johnson & Johnson is engaged in a tough legal battle against thousands of liability claims alleging routine use caused ovarian cancer. Despite the setbacks to date, one expert thinks the drugmaker will continue to take a tough stand against the cases rather than settle.
The drug giant is currently in the process of appealing the cases it's lost, and is prepping for more trials this year as it holds fast to its defensive strategy.
“If Johnson & Johnson thought the plaintiffs had a silver bullet, their strategy might be different,” attorney Mark Raffman of Goodwin told FiercePharma. Raffman said that plaintiffs are trying to prove an “industry conspiracy” to hide the risks of routine talc use, but that it might be a stretch.
“From what I’ve read, they don’t have evidence to back that up and aren’t going to find it.”
Instead, Raffman said, the “battleground” will turn to the science, which J&J believes is “firmly on their side.” So, the attorney thinks J&J will continue to fight the cases one by one rather than ink a massive settlement. A specialist in liability litigation, Raffman is a partner at Goodwin in Washington, D.C.
“I think they think it’s important to the enterprise that they defend these cases,” Raffman said. “My sense is that they have the resources, wherewithal and fortitude to keep fighting.”
So far, Johnson & Johnson has had some costly setbacks as juries have awarded $72 million, $55 million, $70 million and $110 million in Missouri talc liability cases. The company did prevail in one case there and in two others in New Jersey. It now faces about 4,800 talc claims, according to a recent quarterly filing with the SEC.
Ted Meadows, an attorney for thousands of the talc plaintiffs, told FiercePharma J&J has “certainly given every indication” that they don’t plan on settling.
“We’ve already shown that we are willing to try cases back to back and willing to endure a loss and come back,” he said. "If they want to keep trying cases one by one, then that’s what we will do.”
Meadows is currently at a trial in Los Angeles in the first talc case outside of Missouri in several years. He hit back at claims the cases lack evidence of conspiratorial conduct by pointing to the several costly jury verdicts to date. Further, Meadows said while baby powder is not a huge seller for the drug giant, it's an important product for J&J’s corporate image. That may make the company less inclined to settle or issue a warning for the product, he said.
All along, J&J has stood by its product's safety and pledged to appeal any losses. The company's website says "science, research and clinical evidence" have demonstrated that "few ingredients have the same performance, mildness and safety profile as cosmetic talc." A spokesperson on Friday referenced the National Cancer Institute’s Physician Data Query Editorial Board's conclusion that the "weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer."
"We are actively pursuing the appeals process in each of the verdicts in favor of plaintiffs and preparing for additional trials this year," a spokesperson said. "We will continue to defend the safety of Johnson’s baby powder because we are guided by the science.”
If J&J does in fact battle each case as Raffman thinks it will, the company's approach will mirror Merck's strategy back when Vioxx litigation was weighing on that drug giant.
Aside from the science, another key issue in the talc battle is jurisdiction. Adding a new twist is a Supreme Court ruling in a case brought by Bristol-Myers Squibb, which could jeopardize previous verdicts in appeals. The United States’ top court found plaintiffs need to have a connection to the jurisdiction where they sue drug companies.
Following that ruling, a St. Louis judge declared a mistrial in a case that consolidated claims claims for three deceased ovarian cancer victims from three different states. A J&J spokesperson said the BMS Supreme Court ruling “requires reversal of the talc cases that are currently under appeal in St. Louis.”
Meadows said his team believes J&J's relationship with a bottling and labeling company in Missouri should suffice for jurisdiction under the BMS ruling.