Johnson & Johnson Sued Over Baby Powder by New Mexico

https://www.nytimes.com/2020/01/03/business/johnson-johnson-baby-powder-new-mexico-suit.html

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The accusations in a new lawsuit against Johnson & Johnson sound familiar: The consumer goods giant knew for decades that its baby powder and other talc-based products were contaminated with carcinogenic asbestos, but continued to market the items.

What makes this case different is that it was brought by a state.

Hector Balderas, the attorney general of New Mexico, accused Johnson & Johnson on Thursday of misleading consumers, especially children and black and Hispanic women, about the safety of its talc products. The company, he said, “concealed and failed to warn consumers about the dangers associated with their talc products,” which are thought to include lung disease, ovarian cancer and mesothelioma, a cancer of the lining of internal organs that is associated with asbestos.

It’s the latest in a wave of legal claims against the 134-year-old consumer products company. Johnson & Johnson faces more than 16,800 other talc-related lawsuits, most filed on behalf of individuals, as well as investigations by the Securities and Exchange Commission and the Department of Justice.

Johnson & Johnson said in a statement that it is reviewing the New Mexico lawsuit, adding that it “will continue to defend the safety of Johnson’s Baby Powder, which is supported by decades of scientific evidence showing our talc is safe and free of asbestos.”

Joe Wolk, Johnson & Johnson’s chief financial officer, told analysts in a conference call in July that the company had set aside $190 million in its second quarter to defend against talc litigation. Johnson & Johnson has also been enmeshed in legal battles involving opioids and other products.

The complaint, filed on Thursday in state court in Santa Fe, also names Valeant Pharmaceuticals, which changed its name in 2018 to Bausch Health Companies. The company declined to comment.

At the heart of these cases is the claim that for decades, Johnson & Johnson marketed its talc products as pure and soothing, even as executives voiced concerns internally.

In October, Johnson & Johnson recalled 33,000 bottles of its baby powder after the Food and Drug Administration said it had found trace amounts of chrysotile asbestos in a bottle purchased from an online retailer. Later, Johnson & Johnson said that more tests of the same bottle had eventually come up clean. So far, the verdicts delivered in the Johnson & Johnson litigation have not set a clear precedent.

The company has prevailed in some lawsuits, including one involving mesothelioma in Los Angeles last month and another involving ovarian cancer in St. Louis soon after. It is appealing nearly all of the cases it has lost, including a nearly $4.7 billion decision in 2018 that was one of the largest product liability judgments ever recorded. A few cases have ended in mistrials, sometimes when the plaintiff died partway through proceedings.

Johnson & Johnson is waiting for a federal judge to approve or reject the science underpinning thousands of other lawsuits — a decision that could determine whether the cases can be presented to juries.

“If the experts get thrown out, the case gets thrown out,” Daniel J. Capra, a professor at Fordham Law School, said recently. “It’s super high stakes.”