Flashback – Baby Powder

Almost exactly four years ago I wrote about the difference between how the legal system looks at the danger of baby powder vs. how science sees it. Of course, that makes no difference, as just this week I saw another class action lawsuit ad on TV. When it comes to taking money from big rich companies and giving it to poor victims (and their lawyers) juries don’t care about science. They just want to use someone else’s money to dry the tears.

But they still expect the same company to continue to make the Tylenol for their headaches while testing and producing a COVID-19 vaccine. It’s all part of some weird love/hate relationship.

From September 2016: "How Baby Powder Can Harm You?"

[Under the heading of Health, the Fox News headline read: “Research finds talc doesn't cause cancer; juries disagree.” The story tells that two juries awarded a total of $127 million dollars to two women claiming that the Johnson & Johnson baby powder gave them ovarian cancer. A second judge threw out two cases, saying there was no reliable evidence; but another 2000 women have already lined up to sue.

That’s the legal side. What does science say? “Most research finds no link or a weak one between ovarian cancer and using baby powder for feminine hygiene, a practice generations of American mothers have passed on to their daughters. Most major health groups have declared talc harmless.” The rest of the article gives more information about the research and the trials. Here is another conflict between science and the legal process, but that should come as no surprise in light of jury awards given years ago for silicon breast implants when the implants were later found to be safe.

It is very easy to understand how a jury could ignore science and award millions of dollars to a woman with ovarian cancer. They do it out of sympathy, and they do it because they can. To do otherwise seems cold and heartless.  It’s not their money and the company has plenty of money. What’s a few million dollars in the grand scheme of things when it can bring comfort?

What person would stand by and see a toddler fall and skin her knee and not immediately run over to pick her up, dust her off and give her some comfort? It is the human thing to do.

There are several similarities between the one who helps the fallen toddler and the juries who award large sums. It costs them nothing. It gives comfort to the afflicted, although it does nothing to cure the cancer or heal the skinned knee. And it makes the rescuers feel good about themselves.

There are, however a few key differences. When you comfort the toddler it truly costs you nothing, and other toddlers don’t look at the one who fell and line up to also fall down to get sympathy. (Some may independently discover that falling down is an easy way to get attention, and some of them probably grow up to be trial lawyers.)

Also, when a toddler gets sympathy, the costs of that sympathy are not spread to the rest of society.  When a jury finds for the plaintiff in this case, not only does the company (or insurance company) pay, but every other company in that industry is put on notice. They are at risk of losing a large judgment for one of their products that has been on the market for years with no ill effects. They don’t spend the money now, but must keep some in reserve to protect against such a contingency.

Likewise, all insurance companies, seeing that evidence means nothing to some juries, must save for similar outcomes. The companies making personal products slowly raise their prices to adjust for this, and the insurance companies raise their rates to cover the increased risk. This sympathetic redistribution, which is really what it is, ends up costing everyone in society. 

What’s worse is that this activity adds no value. It does not add to the GDP. It does nothing to increase the standard of living for anyone except the few women who win in court (and their lawyers – Remember personal injury lawyers are not paid for justice; they are only paid for winning.)

In the end what can Johnson & Johnson do (besides spend a lot more time and money appealing each decision)? What lesson could they learn? Should they get everyone who buys baby powder to sign a hold-harmless agreement? Why are they more at fault than the “generations of American mothers” referred to in the article? They made a product considered safe for years and suddenly they are on the hook for $127 million; and if the ratios hold true and half the next 2000 win similar amounts, it could be $127 billion! It’s “jackpot justice,” and the cost of all the winning “lottery tickets” is spread among the rest of us, including the people who served on those juries!

So how can baby powder harm you? It harms you in the same way other wasteful legal actions harm you. It takes money out of deep pockets to compensate “victims,” but the costs ultimately come back to each of us, with nothing to show for it but richer lawyers, and juries who, in some misguided way, temporarily feel satisfied that they did something to help.]

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.

How Baby Powder Can Harm You?

Under the heading of Health, the Fox News headline read: “Research finds talc doesn't cause cancer; juries disagree.”  The AP story tells that two juries awarded a total of $127 million dollars to two women claiming that the Johnson & Johnson baby powder gave them ovarian cancer.  A second judge threw out two cases, saying there was no reliable evidence; but another 2000 women have already lined up to sue.

That’s the legal side.  What does science say?  “Most research finds no link or a weak one between ovarian cancer and using baby powder for feminine hygiene, a practice generations of American mothers have passed on to their daughters. Most major health groups have declared talc harmless.”  The rest of the article gives more information about the research and the trials.  Here is another conflict between science and the legal process, but that should come as no surprise in light of jury awards given years ago for silicon breast implants when the implants were later found to be safe.

It is very easy to understand how a jury could ignore science and award millions of dollars to a woman with ovarian cancer.  They do it out of sympathy, and they do it because they can.  To do otherwise seems cold and heartless.  It’s not their money and the company has plenty of money.  What’s a few million dollars in the grand scheme of things when it can bring comfort?

What person would stand by and see a toddler fall and skin her knee and not immediately run over to pick her up, dust her off and give her some comfort?  It is the human thing to do.

There are several similarities between the one who helps the fallen toddler and the juries who award large sums.  It costs them nothing.  It gives comfort to the afflicted, although it does nothing to cure the cancer or heal the skinned knee.  And it makes the rescuers feel good about the part they played in giving that comfort.

There are, however a few key differences.  When you comfort the toddler it truly costs you nothing, and other toddlers don’t look at the one who fell and line up to also fall down to get sympathy.  (Some may independently discover that falling down is an easy way to get attention and some of them probably grow up to be trial lawyers.)

Also, when a toddler gets sympathy, the costs of that sympathy are not spread to the rest of society.  When a jury finds for the plaintiff in this case, not only does the company (or insurance company) pay, but every other company in that industry is put on notice.  They are at risk of losing a large judgment for one of their products that has been on the market for years with no ill affects.  They don’t spend the money now, but must keep some in reserve to protect against such a contingency.

Likewise, all insurance companies, seeing that evidence means nothing to some juries, must save for similar outcomes.  The companies making personal products slowly raise their prices to adjust for this, and the insurance companies raise their rates to cover the increased risk.  This sympathetic redistribution, which is really what it is, ends up costing everyone in society.  What’s worse is that this activity adds no value.  It does not add to the GDP.  It does nothing to increase the standard of living for anyone except the few women who win in court (and their lawyers – Remember trial lawyers are not paid for justice; they are only paid for winning.)

In the end what can Johnson & Johnson do (besides spend a lot more time and money appealing each decision)?  What lesson could they learn?  Should they get everyone who buys baby powder to sign a hold-harmless agreement?  Why are they more at fault than the “generations of American mothers” referred to in the article?  They made a product considered safe for years and suddenly they are on the hook for $127 million; and if the ratios hold true and half the next 2000 win similar amounts, it could be $127 billion!  It’s “jackpot justice” and the cost of all the “lottery tickets” falls on the rest of us, including the people who served on those juries!

So how can baby powder harm you?  It harms you in the same way other wasteful legal actions harm you. It takes money out of deep pockets to compensate “victims,” but the costs ultimately come back to each of us, with nothing to show for it but richer lawyers and juries who, in some misguided way, temporarily feel satisfied that they did something to help.