Why are juries awarding millions of dollars based on shoddy baby powder science?

There’s something amiss in our nation’s courts.

Just last week, a New Jersey jury awarded $750 million to four people who claimed baby powder products made by Johnson & Johnson had contributed to their cancer diagnoses.

In the end, that amount will actually be reduced to $186 million, a feature of New Jersey law that caps award amounts to five times the damages declared by previous rulings.

What’s amiss in this ruling is just how much the jury verdicts stray from actual scientific opinion.

Plaintiffs and their attorneys claim the company has knowingly sold asbestos-tainted talc in its baby powder for years, even though scientific studies have yet to prove a definite link between modern-day talc and any cancers.

The same has been echoed by the American Cancer Society, and the same conclusion was reached by a wide-ranging 2014 study published in the Journal of National Cancer Research Institute.

Last month, the largest-ever study on baby powder and talc was published in the Journal of the American Medical Association. It followed 250,000 women who used the product and found “there was not a statistically significant association” between using baby powder and any link to ovarian or other cancers.

Why, then, would the juries have sided against the science?

In the last verdict in a similar case, a St. Louis jury sided with Johnson & Johnson, finding no proof in the cases furthered by plaintiffs.

Others, though, have delivered record awards. But why?

It’s a combination of ambitious tort lawyers and misleading journalism.

Tort Lawyers and the Long Legal Pursuit

In the trial mentioned above, and in other cases I profiled in my article in the Miami Herald, attorneys specializing in injury cases have elevated what would otherwise be an open-shut case based on science to become a cause célèbre based on penalizing a large company with a familiar brand.

Indeed, the lawyers who argued this case against Johnson & Johnson made the company’s global revenue and its CEO’s compensation the baseline for compensation. It was the first trial in which J&J Chief Executive Alex Gorsky testified before a court.

In his final words to the jury, Panatier made it clear that the focus of their verdict should be on Johnson & Johnson’s conduct. “So when you think about the punitive damages, what number punishes and deters them, you’ve got to think in Johnson & Johnson terms,” he said, noting that Johnson & Johnson was a “$60 billion company.” “And you can make them pay attention. And that is an immense responsibility and it is an immense, immense task that you’ll have to try amongst the 10 of you to determine what that number should be.”

New Jersey Law Journal

What was missing from their core argument was any definitive proof that the plaintiffs were exposed to asbestos from the talc in the baby powder – or that this is how they contracted mesothelioma, a specific lung cancer.

An analysis provided by FDA and mineral experts last week could only conclude that the mineral products in question are likely too small to be adequately tested, and thus new testing would be required.

But again, that conclusion does not negate the various and recent studies that have found no connection between the baby powder and cancer.

Despite that, it hasn’t stopped leagues of injury lawyers from lining up to take their shot at winning a multi-million dollar verdict. More than 16,000 class-action plaintiffs have been assembled to sue the company in other jurisdictions.

The interest of injury lawyers, who receive sometimes up to 40% or more of the winnings, is quite clear.

Media Malpractice?

When it comes to reporting on the facts of these trials, the science is often downplayed in favor of convincing legal arguments and sensationalist headlines.

For news outlets such as Reuters and the New York Times, the decades of scientific studies are often overlooked – or at the very worst, neglected.

An oft-cited example is on the company’s cautious recall of thousands of baby powder products in October. But further tests concluded none of the batches of the company’s baby powder contained asbestos, a fact admitted by Reuters.

Most internal J&J asbestos test reports Reuters reviewed do not find asbestos. However, while J&J’s testing methods improved over time, they have always had limitations that allow trace contaminants to go undetected – and only a tiny fraction of the company’s talc is tested.


As such, it’s difficult to prove what so many lawsuits and investigative allege. Not enough for scientific analysis, but maybe enough for a courtroom and a few headlines. Herein lies the issue.

In the reports of the baby powder cases, these products and cancer are too casually linked. At least according to the studies we have provided to us.

For real understanding about what’s in the products we use and consume, it’s best to adhere to the studies and academic literature. Of course, no one wants to use anything that could prove harmful to them, and consumers should always be wary.

But, in that case, shouldn’t we look to science for those answers rather than 12 men and women sitting in a jury box? Shouldn’t that be the standard we employ for all of the important health issues of our time?

That, along with many other reasons, is why we need true legal reform in this country. We cannot afford to allow real science to be voted away in jury boxes and courtrooms.

Confronting Slanted Journalism on Talc Litigation

When does investigative reporting cross the line into subjective advocacy? Can the coverage of high-stakes civil litigation improperly tip the scales of the legal process toward one of the parties involved? What duty of transparency do reporters owe the public when active litigants are selectively providing much of the source material and narrative framing for stories about ongoing cases?

These are just some of the troubling questions that are raised by the reporting in outlets like Reuters and the New York Times on lawsuits involving talc products made by companies like Johnson & Johnson.

In cases with such large potential impact – on public health, investors, legal precedent, and reputation – the bar for standards like objectivity, accuracy, balance, and sourcing ought to be at its very highest. But instead of sober analysis, reporting on these cases often blows through those guidelines in headlong pursuit of garish and slanted pieces that might as well have been written by the publicists for plaintiff’s attorneys. Tough questions are one thing but willfully distorted reporting is something else, especially when it misleads the public about key elements and serves a hidden agenda that is being concealed from readers.

Let’s start with the simple and easily verified fact that the talc products have been tested for impurities repeatedly and exhaustively over and over again for decades by a laundry list of independent entities. Yet even that overarching truth gets mangled. Outlets like Reuters routinely wave it away with the rhetorical formulation that “Johnson & Johnson points to studies it says…” See the sleight of hand? Reuters misleads its readers to believe these reviews aren’t objectively and independently true. Instead, Reuters insinuates these are just interpretations made by the company.

That underhanded trick also enables reporters to avoid including any of the authoritative sources that affirmed the safety. Why rely on empirical evidence or consensus findings when there’s an outlier study with hypothetical conclusions that can be cited? That’s facile and it enables reporters to elide the central question that’s at issue: do the plaintiff’s claims have a hard scientific basis?

This kind of macro omission is often used in concert with narrower, specific omissions to create the appearance of controversy or ambiguity where there is none. Take one example: In a long article, Reuters notes that in the 1970s, a researcher claimed to find “a relatively small” amount of asbestos in J&J talc. But Reuters does not tell you he re-tested and found none. Independent microscopists also tested the same lot that the researcher used and found that he was mistaken in his findings and that the samples tested did not, in fact, contain asbestos.

This tilted framing is a variation on the idea of “false equivalence” that media ethicists have long lamented in public affairs reporting. The Flat Earth Society doesn’t deserve the primary or even equal voice in news reporting, that argument holds, because the contrary evidence is so overwhelming and obvious. Yet the outlandish claim that J&J has knowingly poisoned women and children for decades, targeting minorities especially, has not only been touted by Reuters and NYT but trumpeted by those outlets on social media and through their publicity departments.

Pretending that News is Breaking

Let’s look closer at how the Plaintiff’s attorney Mark Lanier has co-opted reporters at Reuters and the New York Times. In one recent example, Reuters reporter Lisa Girion took spoon-fed material from plaintiff’s attorneys claiming that Johnson & Johnson “knew for decades that asbestos lurked in its baby powder” and then touted it as “reported here for the first time.” But that’s false in two key ways. First, those memos actually reflect a diligent concern preventing the talc from being contaminated. Second, those memos aren’t newly discovered at all – they have been open exhibits in the public record at trials that took place months and sometimes years ago. The only revelation is that the plaintiff’s attorneys were able to co-opt Reuters into dressing them up when other news outlets had rightly discounted them.  

That deceptive technique of rehashing court exhibits as if they are breaking news was on display in yet another Reuters report that outlandishly declared Johnson & Johnson had “targeted” minorities as part of a malevolent scheme. But that allegation was actually rejected by the courts because of course advertising to specific demographic groups is an entirely routine and perfectly appropriate part of marketing. In fact, the ad industry has an entire group dedicated to this socially vital practice, called the Alliance for Inclusive & Multicultural Marketing. Even though it was deemed unfit for a court of law and legally irrelevant, the publicists for those trial lawyers simply rehashed the material for Reuters which happily parroted their argument.

The New York Times docuseries The Weekly also took the bait. Over the 27-minute episode, plaintiffs’ attorneys and experts are given more than 9 minutes of screen time, including Lanier dramatically staging a scene for reporters interviewing him in his Houston office. File boxes filled with documents from Johnson & Johnson are stacked with dramatic thuds in front of reporters. The ruse works. The New York Times reports Lanier’s theory as verifiably true. Johnson & Johnson’s representative is given just under 3.5 minutes to defend the product and every claim is questioned by reporters along the way. None of the hundreds of independent experts who have confirmed talc’s safety are interviewed. 

Publicity as a Legal Cudgel

But why do the trial lawyers put such an emphasis on influencing the media and driving a narrative? Bloomberg’s Joe Nocera (no softie on big business) explained part of the strategy in a recent column. “For decades, ever since the trial lawyers realized that if they acted in concert, they had a high likelihood of landing a big payday, even if the facts were not on their side. This has become the business model for the plaintiff’s bar.” Nocera added, “Once the lawyers have a product in their sights, the next step — and this is key – is to find not just a handful of people who believed they’ve suffered harm as a result of using the product. They also need tens of thousands of ‘victims.’ How do they find them? By advertising.”

That’s why the free publicity that’s being provided by Reuters and the New York Times is so essential. It allows them to solicit additional members of a class action and at the same time, it helps validate the claims of the complaint in the eyes of prospective jurors.

The best perk of all, however, is how the cheerleading from the national press puts downward pressure on a company’s stock price. That’s leverage the trial lawyers then use to strong-arm a financial settlement. The day after the first Reuters story appeared, the plaintiff’s attorney Mark Lanier appeared on CNBC to brag about how his help to the reporters had caused a $40 billion drop in the company market cap. “I think this litigation can be resolved for much less than $40 billion,” Lanier crowed. “So [the article] serves my purposes as a litigant to say, ‘yes, get their attention, keep driving the stock down.”

Tune out the Skeptics

It doesn’t take a seasoned media critic to spot the holes in the reporting or the half-baked legal theory that supports it. Each piece from Reuters and the New York Times on the talc litigation has been thoroughly eviscerated by numerous readers that have expertise in fields varying from epidemiology, oncology, and medical research.

The media is complicit in the scheme. Reporters are no longer objective as they are angling for financial benefits the same as the trial attorney. Unless dramatic steps in transparency are taken by Reuters and The New York Times, their coverage and claims should be dismissed as fast by the public as they are by the court.  

Scroll to top