Why LA County’s Talc Litigation Misses the Mark

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LA County’s talc litigation represents a colossal waste of taxpayer-funded time as public lawyers collaborate with private plaintiffs’ attorneys, employing outrageous tactics that, in all likelihood, will not succeed for most.

This op-ed on talc litigation was originally published by the Daily Journal / California Lawyer.

This month, Los Angeles County became the first municipality to sue Johnson & Johnson, joining a barrage of lawsuits alleging that the company’s talc products cause cancer. 

The county’s suit, which primarily relies upon a study published more than 50 years ago, makes additional claims of false advertising, unfair competition, and public nuisance.  

Is talcum powder truly a pressing issue in Los Angeles County, and is it a top concern for county residents? The answer is a resounding no. A recent survey revealed that the county’s residents are justifiably concerned about issues like inflation, the pandemic, and homelessness.

So, why would the county attorney choose to prioritize talc claims, based on outdated and questionable science, instead of the pressing issues Angelenos genuinely care about? 

Perhaps the county attorney, like many others, was swayed by the millions of dollars spent by trial lawyers on talcum powder advertising. Since 2012, trial lawyers have spent $120.5 million on legal services TV ads recruiting clients to join lawsuits related to talcum powder, according to data from X Ante.

Given that this isn’t a priority for L.A. County residents, it begs the question of who truly benefits from this litigation? As talc cases nationwide take years to litigate, it’s certainly not the individuals allegedly harmed, who are no closer to having their day in court. Rather, it’s the trial lawyers who stand to walk away with millions of dollars.

While, if successful, this litigation may temporarily fill government budget gaps and line the pockets of trial lawyers, the focus should be on determining how to settle these cases fairly and efficiently. Instead, we witness the trial lawyer playbook in action, with millions spent on ads that can mislead the public in an effort to flood the courts with meritless lawsuits based on junk science.

Every year for the past three years, a state appellate court has thrown out a talc jury verdict against J&J. Just last month in New Jersey, a $224 million verdict was kicked to the curb after an appellate court found that the plaintiff’s “expert” testimony was “so wide off the mark that a manifest denial of justice resulted.”  

Further, J&J has a very strong 76% success rate in the talc suits that have gone to trial. Beyond that, numerous cases that didn’t go in their favor were subsequently overturned on appeal. 

With results like these, it’s no wonder the company continues to defend itself aggressively; the cases are based on junk science and, even if successful at trial, are highly vulnerable to reversal on appeal. 

Despite these unfavorable outcomes, the lawsuits keep coming, leading to an overwhelming backlog of cases in our courts.

The only viable way out of this morass of more than 50,000 lawsuits is through a settlement process via bankruptcy. J&J has already offered $8.9 billion to fund the process, a plan that has received support from counsel representing a majority of claimants. In bankruptcy proceedings, all parties are offered a level playing field, ensuring fairness and equity in resolving these complex mass tort claims.

Angelenos already bear one of the most substantial “tort taxes” in the nation – nearly $3,150 per person every year due to excessive tort costs. California also consistently ranks as one of the worst “Judicial Hellholes®” in the country. 

Yet, the county’s talc litigation is far from a priority for hardworking Los Angeles families. It represents a colossal waste of taxpayer-funded time as public lawyers collaborate with private plaintiffs’ attorneys, employing outrageous tactics that, in all likelihood, will not succeed for most. 

We don’t need a crystal ball to predict the outcome of this scenario. It’s evident that, in the end, the lawyers are the primary beneficiaries. 

It’s time to put an end to this costly and futile legal battle. Californians deserve better than to pay the price for these baseless lawsuits.

Lauren Sheets Jarrell is Vice President & Counsel, Civil Justice Policy of the American Tort Reform Association.

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