(AP) — Johnson & Johnson
has asked the Supreme Court
to review a $2 billion verdict in favor of women
who claim they got ovarian cancer
from using the company's talc
The case features a slew of high-profile attorneys, some in unusual alliances, such as former independent counsel Kenneth Starr, who is representing the women who sued Johnson & Johnson, as well as the nation's largest business
groups backing the company, and a justice's father also appears due to his long association with the trade group for cosmetics and personal care products.
The court may decide whether or not to intervene as soon as Tuesday.
At its core, Johnson & Johnson claims that it was not given a fair shake in a trial
state court that resulted in a $4.7 billion verdict in favor of 22 women who used talc products and developed ovarian cancer.
A state appeals court reduced the verdict by more than half and dismissed two of the plaintiffs, but upheld the outcome of a trial in which lawyers for both sides presented opposing expert testimony about whether the company's talc products contain asbestos and whether asbestos-laced talc causes ovarian cancer.
The jury found in favor of the women on both counts, and Judge Rex M. Burlison wrote that the evidence at trial demonstrated “particularly reprehensible conduct on the part of the Defendants.”
Burlison wrote that the evidence showed that the company was aware of the presence of asbestos in products marketed to mothers and babies, was aware of the potential harm, and “misrepresented the safety of these products for decades.”
According to plaintiffs' lawyers, nine of the women died from ovarian cancer.
Johnson & Johnson denies that its talc products cause cancer, and the Missouri trial verdict was described as “at odds with decades of independent scientific evaluations confirming Johnson’s Baby Powder
is safe, is not contaminated by asbestos, and does not cause cancer.” The company also manufactures one of three COVID-19 vaccines
approved for use in the United States
concerns about talcum powders have prompted thousands of lawsuits in the United States by women who claim asbestos in the powder caused their cancer. Talc is a mineral with a similar structure to asbestos, which is known to cause cancer, and they are sometimes obtained from the same mines. In 1976, the cosmetics industry agreed to ensure that its talc products do not contain detectable amounts of asbestos.
In the largest study to date, a U.S. government-led analysis of 250,000 women last year found no strong evidence linking baby powder to ovarian cancer, though the study's lead author called the findings "very ambiguous."
The findings were described as “overall reassuring” in an editorial published alongside the study in the Journal of the American Medical Association in January 2020. The study was not conclusive, but more conclusive research
is unlikely due to a declining number of women using powder for personal hygiene, according to the editorial.
A few months later, the company announced that it would no longer sell its iconic talc-based Johnson's Baby Powder in the United States and Canada
, citing declining demand due to what it called health-related misinformation
The disputed link between cancer and talc is not really a part of the high court case; rather, the company claimed it should not have been forced to defend itself in a single trial against claims by women from 12 states, with varying backgrounds and histories of using Johnson & Johnson talc-containing products.
The $1.6 billion in punitive damages is excessive and should be reduced, according to the company, in a brief written by Neal Katyal, a Washington lawyer who supports progressive causes while also representing corporate clients. Katyal, who served as the acting top Supreme Court lawyer during the Obama administration, declined an on-the-record interview
Among the business organizations supporting Johnson & Johnson's appeal are the United States Chamber of Commerce and trade associations for manufacturers, insurers, and the pharmaceutical industry
Joyce, president of the American Tort Reform Association, stated that the length of time it took the trial judge to read the jury's instructions demonstrated how unfair the trial was to Johnson & Johnson.
“When a defendant is facing a case where the judge takes over five hours to read the jury instructions to the jury, you just have to wonder what we are doing here,” said Joyce, whose organization generally supports liability lawsuit limits.
“As the jury found, and as every judge who has reviewed this six-week trial record has concluded, Johnson & Johnson’s conduct over decades was reprehensible,” Starr said in an interview with The Associated Press
Other members of the women's legal team, in addition to Starr, include former Attorney General John Ashcroft and Washington lawyers David Frederick and Tom Goldstein, both of whom have appeared before the Supreme Court on numerous occasions.
When Starr investigated President Bill Clinton's affair with Monica Lewinsky, which resulted in Clinton's impeachment
, Justice Brett Kavanaugh worked for him.
E. Edward Kavanaugh, the late president of the Cosmetic, Toiletry, and Fragrance Association and the justice's father, is another name that appears in some documents in the case.
Kavanaugh's group fought efforts to classify talc as a carcinogen or to require warning labels on talc products; Kavanaugh has since retired, and the group is now known as the Personal Care Products Council.
According to ethicists contacted by the AP, they have seen nothing that would require the justice to recuse himself from the case.
Justice Samuel Alito reported last year that he owned $15,000 to $50,000 in Johnson & Johnson stock, and federal law prohibits judges
from sitting on cases in which they have a financial interest.