Summary
With a claimant firm now primed and ready to help individuals in the UK bring claims for injuries arising from the contamination of Johnson & Johnson’s talc products, Richard Burrows and Keith Jones look at the history of talc litigation in the US, and how this might translate to claims closer to home.
Transcript
Keith Jones: Hello, and welcome to the latest Law Behind the Headlines podcast. I'm Keith Jones. I'm a Partner in the Weightmans national disease team. And I'm joined once again today by Richard Burrows, Principal Associate who also works for me along with the disease team. Hi, Richard. Welcome Thanks for coming along.
Richard Burrows: Thanks, Keith.
Keith: Today's topic relates to the latest in the Johnson & Johnson talc litigation in the United States, which was previously something which was potentially a risk in the UK. There's been recent developments that have seen that risk become more real. Would you agree with that?
Richard: Yeah, that's right. So one of the founding partners of the legal firm, which was successful in securing billions of dollars of compensation for US claimants — or plaintiffs as they're known in the US — and who had allegedly developed cancer from the use of Johnson & Johnson's talcum powder is now considering similar claims in the UK.
Richard: So this partner is joining forces with a number of barristers in the UK to set up a firm which specialises in talc litigation claims. And they've already set up a dedicated website, which is there to attract potential claimants to register their interest in bringing in a personal injury claim.
Keith: Ok, so that suggests that they could possibly be brought in the future in the UK as well, or there's a risk of that, certainly. It'd be useful, I think, if you could start taking us right back to the start. And what's the connection between asbestos and talc and how some talcum powder powder became contaminated with asbestos?
Richard: So talc and asbestos are both naturally occurring minerals and talcum powder is predominantly made of talc — surprisingly — and which is composed of hydrated magnesium silicates.
Richard: So when talcum powder is manufactured, the mineral talc is ground down until it's a fine powder, which has the properties which it's well known for. So it absorbs moisture and it also reduces friction.
Richard: The contamination has occurred as during the mining process to extract the talc, some naturally-occurring asbestos has also been disturbed. Now sometimes talc and asbestos can occur naturally, very close together and that makes it very difficult for mining practices to actually separate the two from one another.
Keith: Right so we can see that talcum powder could be contaminated with asbestos. I mean, how many claims have been brought in the United States? Is it just a handful or are we talking about hundreds of thousands of claims?
Richard: So litigation arising out of the use of Johnson & Johnson's talcum powder has been bubbling away for a number of years — probably for the best part of a decade. Claims have been brought in relation to asbestos contamination of a number of bottles of Johnson & Johnson's bottles of powder. And it got to the point where they didn't actually know which batches would be contaminated or not.
Richard: So sources vary when referring to the quantity of these claims, but it's believed that probably in excess of 30,000 have actually been brought so far and the numbers are increasing over time.
Richard: So going back to 2014, for example, less than 1,000 claims were brought, but by October 2021, in 2021 alone at that point, so within that 10 month period over 12,000 claims have been brought, and that's likely due to the marketing campaigns that were run in the US in relation to these claims, which is obviously something which we could potentially see replicated here in the UK.
Keith: Well, certainly a lot of claims. I mean, while these claims for I mean, how would plaintiffs alleging that Johnson & Johnson were at fault?
Richard: Some research suggest that Johnson & Johnson had actually been aware that their talc had been contaminated for many years and possibly going back as early as the 1970s, but this hasn't been explicitly confirmed.
Richard: And so the plaintiffs in the US were suggesting that due to the use of talc containing products, they developed predominantly ovarian cancer or, in some instances, mesothelioma.
Richard: So the claims are product liability claims and the plaintiffs brought their actions against Johnson & Johnson as the manufacturer of the talcum powder. So it was effectively alleged that Johnson & Johnson knew that the products have been contaminated with asbestos, yet they continue to sell the same to consumers.
Keith: Right I mean, you mentioned at the start about plaintiffs in the United States being awarded billions of dollars. I mean, I can imagine that's because of the differences in the legal system between us and the United States, to be fair, and I can't recall sums at that level being awarded for any personal injury claimants in the UK, whatever that injury.
Richard: Yeah as you say, if the US legal system is completely different to the UK and they tend to hand out much greater awards for damages than we're used to seeing in the UK courts. So one example. In July 2018, a jury in Missouri awarded 22 women who had allegedly developed ovarian cancer due to the use of talc, $550 million for their injuries and an additional $4.1 billion in punitive damages. And that's an absolutely eye watering sum — you wouldn't want to be requesting the payment on that claim.
Richard: It was eventually halved in 2020 when it was discovered that some of the claimants ought not to have been included in the action as they actually resided outside of Missouri. And that's, again, one of the nuances of the US legal system in that there's differences in the legal systems of various different states, even within the US.
Keith: Well the certainly eye watering figures, aren't they? So how are things currently stand in the US? Are still claims being submitted and brought?
Richard: Yeah, as far as I'm aware, the claims continue to be brought in increasing numbers as time goes by. Johnson & Johnson have now actually removed their talc products from sale across the globe and they've actually shifted to replacing the talc-containing elements to cornstarch-containing elements now instead. But that obviously doesn't turn back the clock and it doesn't remedy any potential exposure in the past by previous consumers. So claims are still likely going to be brought for many years to come.
Keith: So that's the situation in the United States where obviously claims are still well under the way and progressing. What do you think we can expect in the UK? Do you think we'll see similar volumes here?
Richard: Well, from the work that you and I have done, Keith, we're both familiar with volume and bulk litigation claims, so I anticipate it'll be a similar situation to whiplash claims and claims for noise-induced hearing loss in that we will potentially see some firms — indeed we've already got the first one here on our shores, as I mentioned earlier in this talk — specialising solely, or at least heavily in these claims, driving marketing campaigns focused on attracting potential claimants and raising awareness of talcum powder contamination.
Richard: What's actually interesting from the media coverage, which this threat of a wave of claims has attracted to date is that actually no potential claimants have yet come forward. Now, that might be because it's still difficult and perhaps not completely certain that talc does cause ovarian cancer. And even the medical evidence, which has been relied upon in the US is questionable.
Richard: Cancer Research UK, for example, is actually arguing that the evidence of a link between use of talc containing products and ovarian cancer is weak and still needs more research to be carried out to prove on the balance of probabilities. And it says that there are a number of other factors which attracts a high risk of developing ovarian cancer than using talc.
Richard: So it might therefore be difficult for claimants to establish with the proof being on them and based on the expert evidence available to date, that use of talcum powder can actually cause ovarian cancer.
Keith: So clearly causation is going to be difficult on these cases. So with that in mind, what do you predict for the likelihood of the future of UK talc claims? Do you think there's a possible talk of a class action? Is that likely?
Richard: Well, we've seen that a firm has already been specifically set up to deal with these claims in the UK, it does suggest that they will likely be brought in the coming years. But that said, we have had similar situations in the past, for example, with claims for opioid dependency and head injuries in sports, which have both moved at a much slower pace in the UK than their corresponding claims in the US. So it isn't a certainty and it isn't a certainty exactly when the claims will be brought.
Richard: But I think until potential claimants come forward to explore bringing a claim, we can't actually know for certain what number of claims will be brought or indeed what appetite there is for doing so. The average person in the general public will unlikely have been keeping an eye on litigation in the US, so they may be unaware of the connection between ovarian cancer and possibly mesothelioma and talc exposure and use. But once this awareness increases, that may see a corresponding increase in the interest in pursuing these claims.
Richard: As to whether a class action akin to what was brought in the US will be brought. Such actions are far less common in the UK, with claimants more likely to pursue their own claim individually, albeit on occasion, some claims are consolidated if that were the same injury and arise not the same circumstances.
Richard: So just because class actions are less common doesn't mean that they're an impossibility. In my opinion, one thing which is likely more certain is that the damages awarded to any successful claimants in the UK are going to be far less than those in the US.
Richard: The English and Welsh courts will rarely award damages in the millions and billions of pounds and our Judicial College Guidelines, which sets out recommendations of general damages awards for various injuries, are much more conservative than the unlimited and punitive awards which we've seen in the US.
Keith: Well, thanks, Richard, as always. That was extremely insightful and I think there are lots of other emerging trends and risks, this will be one to watch and I think it's probably a much more advanced stage and some of the other risks that were on the horizon.
Keith: That's all for this edition of Law Behind the Headlines. Hopefully you found it useful and insightful. As ever, please do not hesitate to contact myself or Richard, if you've got any questions around this or any other previous Law Behind the Headlines podcasts. And please also continue to subscribe to our channel and we'll let when the next episode is available. Thanks so much for joining us. Goodbye