The scientific method and common sense both took a hit on Feb. 22, 2016 when a jury in St. Louis, Mo. awarded $72 million to the family of a woman that died from ovarian cancer.
Johnson & Johnson was ordered to compensate the family of Jackie Fox, who died aged 62 in Oct. 2015, for failing to warn consumers about the risks associated with talcum powder.
The problem is, there is no consensus on the dangers of talcum powder.
The American Cancer Society (ACS) says there is a generally accepted link between inhalation of talc containing asbestos and cancer, but adds “the evidence about asbestos-free talc, which is still widely used, is less clear.”
Commercial talcum products have been asbestos-free since 1973, years before Fox said she began using talcum powder, and Fox wasn’t inhaling the powder either.
The World Health Organization’s International Agency for Research on Cancer (IARC), the same organization that recently was willing to go on record that processed meats cause cancer, has said that talcum powder is “possibly carcinogenic to humans.”
If the ACS and the IARC aren’t willing to declare talcum powder a definite carcinogen, why are 12 people in Missouri put in charge of that decision?
The smoking gun in the case, at least in the eyes of the jury, was an internal memo from Johnson & Johnson that said “anybody who denies risks between ‘hygienic’ talc use and ovarian cancer will be publicly perceived in the same light as those who denied a link between smoking cigarettes and cancer.”
That memo doesn’t read as an admission of guilt, but simply a recognition of how public perception works.
Unfortunately for Johnson & Johnson, the jury took that as proof positive of a cover up.
Krista Smith, the jury foreman, stated these internal memos made it “really clear they were hiding something.”
What they were hiding, and more curiously, how it was “really clear”, remains unclear.
A lawsuit like this, one of over 1200 pending with regard to talcum powder and cancer, does little to assuage the fears of those with a healthy respect for scientific research and corporate responsibility.
Going forward, corporations and individuals will need to worry that discussing negative scenarios or outcomes will leave them open to litigation.
The takeaway seems to be that public relations planning and worst case scenario discussions are now proof of malice and deceit, not just good business.
To be fair to the jury, the standard of proof in this lawsuit was preponderance of evidence, a level so low it essentially comes down to more likely than not.
So to summarize, in a case about a hotly debated issue that has been under discussion for decades with no real consensus, the jury simply had to pick the most likely to be true option.
Since Missouri has the 27th ranked state education system in the United States, perhaps the jury was adequately educated in the complex chemistry and biology required to understand the nuances of this case and what they were being told by both sides.
More likely, they were 12 people who couldn’t find a reason to get out of jury duty and didn’t want to go to jail.
Maybe, just maybe, these lawsuits would be better served being delayed until the data was definitive one way or the other.
Talc may cause cancer.
Heck, it may be the single biggest cause of cancer in the world.
But for the sake of rational thought and the sanity of millions who use logic, these lawsuit decisions should at least pretend to have a basis in reality until the truth comes out one way or the other.