Ridiculous Damages

The verdict is in, literally. Baby powder can kill you, legally. Of course legally is very often different from scientifically.

 A short time ago a jury in Missouri awarded 22 women $4.69 billion in a class action lawsuit “that alleged the company's talc-based baby powder products contained asbestos and caused them to develop ovarian cancer.” The CDC recognizes asbestos as a carcinogen that has been linked to lung cancer, asbestosis and mesothelioma (but not necessarily ovarian cancer).

Of course Johnson & Johnson intends to challenge the verdict and any payout is still years away.

The story itself brings up several points to consider. First, legal liability is not necessarily indicative of any danger nor is it a determination of actual responsibility.

Take the case of breast implants from years ago. This report from PBS gives a chronology of silicone breast implant usage, legal action and scientific evidence, showing how often courtroom evidence and laboratory evidence conflict. Sometimes women were awarded millions in damages, while others had their cases dismissed as new studies were published. Sometimes judges and juries paid attention to the science and at other times they followed their own feelings. This timeline ends at 1999 and does not include the final 2006 FDA approval after the big controversy during the 80s and 90s.

The situation is pretty much the same with baby powder, except there is less guessing about the science. The FDA statement in the article seems clear enough: “After careful review and consideration of the information provided in the Citizen Petitions submitted in 1998 and 2008, and the review of additional scientific information, the FDA concluded in 2014 that it did not find conclusive evidence of a causal association between talc use in the perineal area and ovarian cancer.” The National Cancer Institute seems equally certain: “The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.” But those are only scientific and medical opinions and often carry little weight in the courtroom.

Like those tobacco lawsuits and settlements, people tend to rejoice at the idea that big business has to pay. This may be a desire for revenge for some apparent slight, or it may be driven by envy of anyone richer; but the companies rarely suffer from these punitive damages nor do they typically make major organizational changes. The idea of punitive damages has flaws that juries rarely grasp. Can you name a single tobacco company that went out of business or a single executive who lost his job as a result? Economic understanding tells us that any money paid out ultimately comes from their customers, be they smokers or users of Tylenol.

Finally, is there any consideration of the appropriateness of the award, or are juries just enthralled by some sense of power to enforce justice?

An award of $4.69 billion split 22 ways is a little over $213 million each. Subtract the lawyers’ cut of say, 35%, and each woman (or group of survivors) is left with a paltry $140 million. (That’s why it’s sometimes called “jackpot justice.”) That amount of money is not going to make anyone healthier or happier. (The stress of having that much money is clear from stories of lottery winners.)

These lawsuits don’t fix problems. They just make certain lawyers richer and redistribute wealth in a very minor way. The more news like this is met with a sense of delight rather than disapproval, the more America creeps in the wrong direction.