At trial, the plaintiffs hired Dr. Daniel Cramer, Director of the OB/GYN Epidemiology Center at Brigham and Women’s Hospital in Boston. Dr. Carmer testified that his own study showed an increased risk of ovarian cancer with talcum powder use. Likewise, the International Agency for Research on Cancer (IARC) classifies genital use of talcum-based body powder as “possibly carcinogenic to humans.” IARC is part of the World Heath Organization.
The attorneys for the plaintiffs also introduced evidence from a September 1997 Johnson & Johnson internal letter. The letter suggested that denying the risks could mean that “the talc industry will be perceived by the public like it perceives the cigarette industry: denying the obvious in the face of all evidence to the contrary.”
Others disagree with the plaintiffs’ position in this case. The American Cancer Society says that the potential link between talcum powder and ovarian cancer is mixed. Some studies reported a slightly increased risk in women who reported using talcum powder in the genital area, while other studies found no increased risk at all. Dr. Francisco Xynos, a gynecologic oncologist at SSM Heath St. Mary’s Hospital in St. Louis, has stated that “I think the concern for the general population should be negligible, because there is no scientific proof of that.”
The jury in this case agreed with the plaintiffs. They awarded $10 million in actual damages and $62 million in punitive damages. Obviously, the jury found that Johnson & Johnson knew of the dangers of talcum powder, but chose corporate profits over consumer safety.
This case falls within the legal cause of action of products liability, which is a generic phrase used to describe the liability of a supplier of a product to one injured by the product. Generally, plaintiffs in products cases have available one of five possible theories of liability:
- Intent – Though not very common in products cases, a defendant will be liable to anyone injured by an unsafe product if the defendant intended the consequences or knew that they were substantially certain to occur;
- Negligence –To prove this, the plaintiff must show the existence of a legal duty owed by the defendant to that particular plaintiff, a breach of that duty, actual and proximate cause, and damages;
- Strict liability – To prove this, the plaintiff must show an absolute duty owed by a commercial supplier, production or sale of a defective product, actual and proximate cause, and damages;
- Implied warranties of merchantability and fitness for a particular purpose – These fall under the Uniform Commercial Code (UCC) and are based on warranty and contract law; and
- Representation theories such as express warranty and misrepresentations – these, too, are based on the UCC and warranty/contract law.
In order to prove any of the above theories of liability, the plaintiff must show that the product was “defective” when the product left the defendant’s control. There are two types of defects:
- Manufacturing defects – When the product emerges from a manufacturing process not only different from other products, but also more dangerous than if it had been made the way it should have. For a manufacturing defect, the plaintiff must show that the product was dangerous beyond the expectation of the ordinary consumer because of the departure from its intended design.
- Design defects – When all the products of a line are made identically, but have dangerous propensities. Inadequate warnings can be analyzed as a type of design defect. A product must have clear and complete warnings of any dangers that may not be apparent to users. For design defects, the plaintiff must show a reasonable alternative design (i.e., that a less dangerous modification or alternative was economically feasible). Courts consider the following factors in “feasibility”:
- Usefulness and desirability of the product;
- Availability of safer alternative products;
- The dangers of the product that have been identified by the time of trial;
- Likelihood and probable seriousness of injury;
- Obviousness of the danger;
- Normal public expectation of danger (especially for established products);
- Avoidability of injury by care in the use of the product (including the role of instructions and warnings; and
- Feasibility of eliminating the danger without seriously impairing the product’s function or making it unduly expensive.
In Florida, there is a presumption that the product is defective or unreasonably dangerous if the manufacturer or seller did not comply with the relevant government codes or safety standards. See Fla. Stat. §768.1256.
Common problems that arise in products cases include:
- Misuse – Some products may be safe if used as intended, but may involve serious dangers if used in other ways. The Courts have required manufacturers to anticipate reasonably foreseeable uses even if they are misuses of the product. For example, a reasonable use for a screwdriver is to pry open paint can lids even though they are intended to be used to turn screws. Manufacturers must anticipate this other use and make the product safe for that activity as well.
- Scientifically unknowable risks – Sometimes, a totally unpredictable hazard of a product does not become apparent until after the product has been marketed. This most commonly happens with new drugs that have unpredictable side effects. Courts have been reluctant to find these drugs unreasonably dangerous where it was impossible to anticipate the problem and make the product safer or provide warnings.
- Allergies – Some products affect different users differently. If an allergic group is significant in number, the product is defective unless adequate warnings are conveyed. The modern trend in the Courts is to require such warnings whenever the manufacturer knows that there is a danger of allergic reaction, even though
The attorneys at the LaBovick Law Group are dedicated to representing those injured by the negligence of others. It does not matter if that negligence was on the part of a corporation or an individual; our firm is passionate about awarding justice to the injured. If you have been injured by the negligence of another, call today for a free case evaluation and consultation.