In the first judgment against the J&J spinoff in a ten-year legal battle over the product, the family of an Illinois woman who claimed the companies’ baby powders caused her to develop a fatal cancer was awarded $45 million against Kenvue Inc. and Johnson & Johnson.
Jurors deliberating on the case in Chicago late Friday found that Kenvue bore 70% of the blame for the demise of Theresa Garcia, a grandmother and mother of six, who passed away in 2020 from mesothelioma, a cancer associated with asbestos exposure. According to court documents, her family claimed J&J and Kenvue’s former company sold their talcum-based baby powder knowing it was contaminated with asbestos.
The panel found J&J and one of its units were responsible for the remaining 30% of the verdict, one of the first wins by a talc plaintiff since a judge last year threw out the bankruptcy filing of a J&J unit aimed at forcing a settlement of the talc cases. A Florida jury rejected similar claims against the company on Thursday.
J&J has maintained that its talc-based products don’t cause cancer and that it has marketed its baby powder appropriately for more than a century.
Officials of Kenvue, which now sells baby powder, confirmed earlier this month it no longer makes or sells a talc-based version of the product. Prior to the spinoff, J&J said it would take talc off the North American market by 2020 and worldwide by December 2023 and switch to a cornstarch replacement. It cited sliding sales for the move.
Melissa Witt, a Kenvue spokeswoman, didn’t immediately respond to an email Saturday seeking comment on the verdict. Erik Haas, the head of J&J’s in-house litigation section, said the company would appeal the jury’s finding. “We expect to prevail as we typically do with aberrant adverse verdicts that have no basis in the law or science and are predicated on clearly erroneous rulings by the trial court,” Haas said in an emailed statement.
J&J is one of many large pharmaceutical companies that have sold off or are preparing to sell off lower-margin but consistently profitable consumer businesses in order to concentrate on the riskier but more lucrative task of developing novel medications. Through the sale of its shares and the offering of Kenvue debt, J&J was able to generate $13.2 billion in cash. Popular J&J goods like Listerine mouthwash, Tylenol pain reliever, and the brand-new cornstarch-based baby powder are now produced in Kenvue.
According to securities filings, Kenvue obtained an indemnity agreement from J&J as part of the spinoff to cover any talc liability that arises in North America. According to the filings, Kenvue has to deal with talc verdicts from courts outside of its jurisdiction.
According to Jessica Dean, the family’s attorney, Garcia’s family was prepared for trial in 2021 when J&J’s LTL Management unit filed its first Chapter 11 case, aiming to promote a settlement of all ongoing and upcoming talc cases. The family was only able to have a jury hear its case after that case, along with another attempt to use the bankruptcy courts to control the talc litigation, was dismissed, according to Dean.
“After years of delay caused by Johnson & Johnson’s bad faith abuse of the bankruptcy system,” the family is grateful jurors saw through the ‘deceptions’ put forth by J&J and Kenvue about whether talc can cause cancer, Dean said in a release. “The defendants knew that talc contains asbestos impurities that were mined and put in the bottles of baby powder J&J sold,” she added.
In the Florida case, a state court jury dismissed the family’s allegations that Patricia Matthey’s use of asbestos-tainted baby powder contributed to her ovarian cancer diagnosis in 2016. Following the decision, Haas stated that the panel’s decision had vindicated the company. “The jury appropriately found that talc is safe, does not contain asbestos and does not cause cancer, which is the same outcome the company achieved in 16 of 17 ovarian cases tried to date,” Haas stated in a statement sent by email.
In Garcia’s Chicago case, her family contends the plaintiff was a long-time user of J&J’s talc-based baby powder and used the product on her children and grandchildren. The family contends J&J was aware of concerns about asbestos in its talc and failed to warn consumers. Stephanie Salcedo, Garcia’s daughter, filed the case on behalf of her family.
“J&J knew that asbestos exposure, including asbestos exposure from inhaling asbestos-containing talc, can and does cause fatal diseases such as mesothelioma,” the family said in its lawsuit against the companies.
J&J reported earnings this week, beating estimates in a step towards boosting profitability after the spinoff of Kenvue.
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