The United States Supreme Court has rejected an appeal from J & J seeking to undo a $2.1 billion award over allegations asbestos in its talc powder products, including baby powder, caused women to develop ovarian cancer. The court announced in their order, without any noted dissent that it will not hear the case. Justices Alito and Kavanaugh recused themselves from consideration of the case.
Johnson & Johnson asked the court to review the penalty against it after the amount was upheld by the Missouri Supreme Court last year. A Missouri state appeals court previously reduced the penalty against Johnson & Johnson from more than $4 billion.
The dispute featured former acting solicitor general Neal Katyal arguing on behalf of Johnson & Johnson and Ken Starr, the former Whitewater prosecutor, representing women with ovarian cancer who sued the company.
Johnson & Johnson stopped selling their talc-based baby powder in the United States and Canada in May 2020, citing reduced demand “fueled by misinformation around the safety of the product and a constant barrage of litigation advertising.” The company faced in excess of 21,000 lawsuits over its talc products. Plaintiff’s attorney Ken Starr
wrote in his brief urging the justices not to review the case that Johnson & Johnson “knew for decades that their talc powders contained asbestos, a highly carcinogenic substance with no known safe exposure level. They could have protected customers by switching from talc to cornstarch, as their own scientists proposed as early as 1973. But talc was cheaper and petitioners were unwilling to sacrifice profits for a safer product,” he wrote.
Defense attorney Neal Katyal argued “federal regulators and respected health organizations have rejected calls for warnings on talc, and comprehensive epidemiological studies tracking tens of thousands of talc users have found no meaningful association between cosmetic talc use and ovarian cancer.” Katyal said attorneys for the victims searched the country “for women who were both diagnosed with ovarian cancer and among the millions who used Petitioners’ talc products.”
“They put dozens of plaintiffs on the stand to discuss their experiences with cancer, and the jury awards billions of dollars in punitive damages supposedly to punish Petitioners,” he wrote.
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