Baby Powder Lawsuits in Mississippi and Elsewhere

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Last year, a court permitted a talcum powder lawsuit against Johnson & Johnson to go forward. Although the lawsuit was not venued in Mississippi, the federal court’s findings may bear on future talcum powder lawsuits in our state. The case arose in 2006 when a woman was diagnosed with ovarian cancer. Before that she had used baby powder as a form of feminine hygiene for more than 30 years.

One of her experts had published a study back in 1982 about the connection between using talc as feminine hygiene and the development of ovarian cancer. Johnson & Johnson was aware of those studies, staying current on the potential hazards of their product.

The plaintiff brought a product liability action against Johnson & Johnson because the baby powder did not have any warnings about the possible hazards of using talcum for feminine hygiene. She had four experts: an epidemiologist, a toxicologist, a microscopy expert that found talc particles in her tissues, and experts in forensic human factors and warnings to ascertain if the hazards of this use were open and obvious among other things.

The defendants made a motion to exclude much of the expert testimony on grounds of reliability. For example, they tried to exclude the epidemiologist’s methodology for failing to rule out alternative causes of the cancer. The court rejected this finding that an expert’s explanations about conclusions not ruled out went to the weight of the evidence, not whether it was admitted at all.

The district court explained summary judgment wasn’t proper if there was any dispute in the facts that could affect the case’s outcome. The defendant had argued that (1) no evidence of causation, (2) no evidence that would impose a duty to warn, and (3) Berg couldn’t show their failure to warn had caused her ovarian cancer. The defendants had argued there was no causation assuming the court would grant their motions to exclude expert testimony. However, the court found most of the expert testimony admissible.

The court found the plaintiff’s use of talcum and diagnosis undisputed facts. She had also put forward admissible expert evidence that her use of the defendant’s talcum powder had caused her ovarian cancer.

The epidemiologist had opined that talcum had a strong causal association with ovarian cancer. The toxicologist had claimed the talc had immunotoxic potential. He had also found it believable that her frequent application of talc led to chronic inflammation. An expert in microcopy had offered evidence talc was present in tissues removed from her ovaries and fallopian tubes. Finally, Berg herself claimed that if she had known it was dangerous to apply talc to her genital area she wouldn’t have applied it there.

The defendants also argued the plaintiff hadn’t established a duty to warn because the product wasn’t dangerous. The court explained that if the plaintiff could establish at trial there was a danger associated with a foreseeable use, the duty to warn element was satisfied.

The defendants also argued that the plaintiff couldn’t show the failure to warn was a proximate cause (a legal cause) of her ovarian cancer. The plaintiff had proved defendants were aware of the dangers of talc as of 1971.

There are still some issues outstanding in this case, but when the case went to trial, the jury did find that Johnson & Johnson had failed to adequately warn consumers about the risks and also found the product had caused her cancer.

The experienced Mississippi product liability attorneys of Coxwell & Associates may be able to help if you developed ovarian cancer as a result of using talcum for feminine hygiene.

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Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

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