As J&J ‘trims’ talc loss to $2.1 billion, Bayer sees $10-billion-plus Roundup fix

bayerlogo-150x150Leave it to corporations, even with the pressure of the civil justice system, to figure billions of ways to never say they are sorry — and to leave consumers hanging about problematic products and practices.

Johnson and Johnson just won a pyrrhic victory, prevailing in an appeals court, so a Missouri record $4.69 billion loss now has become $2.1 billion.

jjlogo-300x116That is the sum the court said the company owed women who developed female reproductive cancers after long use of the company’s famed baby powder. J&J insists its product is safe. But the appeals judges, while reducing the award against the conglomerate, also affirmed that J&J knew its talc was tainted with cancer-causing asbestos.

As the New York Times reported:

“In its decision, the appellate court noted that the company’s internal memorandums from as far back as the 1960s indicated that its talcum products — referred to as the ‘golden egg, ‘company trust-mark’ and ‘sacred cow’ — contained asbestos, and that the mineral could be dangerous. ‘A reasonable inference from all this evidence is that, motivated by profits, defendants disregarded the safety of consumers despite their knowledge the talc in their products caused ovarian cancer,’ the court said. The plaintiffs ‘showed clear and convincing evidence defendants engaged in conduct that was outrageous because of evil motive or reckless indifference,’ the court said.

“The court awarded $500 million in actual damages and $1.62 billion in punitive damages, reducing the original award of $550 million in compensatory damages and $4.14 billion in punitive damages after dismissing claims by some of the plaintiffs.”

After taking this big hit to its historic, “family friendly” brand, J&J still vowed to appeal to the state’s highest court, hoping to deal with one of the biggest of an estimated 19,000 lawsuits pending over its baby powder. The company, not conceding any problems with the product but saying adverse publicity has crimped its sales, pulled its baby powder from North American shelves in recent weeks.

Meantime, in northern California and Germany, lawyers for Bayer and tens of thousands of claimants made formal an anticipated $10-billion-plus settlement over the chemical glyphosate and the familiar weed-killing product Roundup.

The company insists that Roundup is safe and effective. It is popular still in Big Agriculture. But a growing number of household users blamed glyphosate for causing cancers, including cases of non-Hodgkin’s lymphoma.

Bayer inherited a barrage of Roundup suits when it bought U.S-based Monsanto for $63 billion two years ago. The German chemical and pharmaceutical conglomerate has sought to settle the actions, 95,000 of them reportedly covered in a deal struck at the behest of a federal judge in northern California and with the help of noted mediator Kenneth Feinberg.

Part of the settlement calls for the establishment of an independent panel to assess glyphosate’s risk in causing cancer, with future claimants likely affected by the findings. Global groups have warned against Roundup, while U.S. agencies, including the Environmental Protection Agency, finding it safe.

Bayer’s settlement, which the company pushed during the Covid-19 pandemic when courts were shut and current cases went into limbo while other new matters could not be launched, leaves the company with an estimated 30,000 claims unresolved.

The New York Times reported this of the terms for cases settling: “Individuals, depending on the strength of their cases, will receive payments of $5,000 to $250,000, according to two people involved in the negotiations.”

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on them and their loved ones by dangerous and defective products, including risky and harmful drugs. Their quest for justice and for financial and other resources they may need for long periods after they have been damaged is rarely easy. Big cases with many, many claimants can get complicated and difficult, quickly. They may not be satisfying to all.

Still, contrary to what corporations, insurers, and business cheerleaders may claim, harmed consumers are not typically hustling for a fast buck. They do force not only conglomerates but also regulators and politicians to make proliferating products around us safer and better. That includes by raising big questions why the civil justice system — and not federal watchdogs — takes into consideration tens of thousands of complaints and seeks to resolve issues such as whether popular products are tainted and cause cancer.

Why are courts resolving big, complex product safety questions that federal agencies, regulators, lawmakers, and experts and trained scientists are supposed to? That is an issue of great urgency as voters head to the polls and think hard how political partisans have debased the science- and evidence-based approach to regulation this country once at least aspired to, all in the name of benefiting Big Business.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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