Asbestos in Talcum Powder: Diagnosis and Your Case

An accurate picture of your harm is crucial to assessing "damages" and getting a fair result in your talc-asbestos case.

Is there a link between the use of talc—found in popular products like baby powder—and risk of ovarian cancer and other health problems? The science isn't clear, but thousands of lawsuits have been filed against manufacturers like Johnson & Johnson. These suits claim that baby powder and other personal hygiene products contain asbestos (a known carcinogen), and that these companies hid known health risks from consumers.

If you're thinking about taking legal action in connection with your use of baby powder or another product containing talc, it's important to understand that use of a product, on its own, won't justify the filing of this kind of personal injury lawsuit. In cases like these, where plaintiffs seek to establish a link between their development of certain cancers or other health problems and use of a product containing talc, a clear diagnosis is critical.

Why Diagnosis Is Key in a Talcum Powder Case

In any injury-related civil lawsuit, including claims over the safety of products containing talc, the specifics of the plaintiff's health problems are critical. They shape the value of the case, making an accurate diagnosis essential.

Diagnosis goes straight to the nature and extent of the plaintiff's losses ("damages" in legalese). A talc-asbestos case almost always includes both "economic" damages—covering the cost of additional medical treatment, lost income, and other quantifiable losses—and "non-economic" damages—applying to pain and suffering, loss of enjoyment of life, and similar, more subjective consequences of the plaintiff's health problems.

When faced with a lawsuit over the safety of their products, manufacturers like Johnson & Johnson may well argue that the plaintiff hasn't actually experienced any health problems, or that the plaintiff's health problems aren't attributable to the product.

That's part of why diagnosis is so important in these kinds of cases—detailing the type of cancer or other health problem, when symptoms first arose, and other specifics, all cross-referenced against the plaintiff's use of the defendant's product. An incomplete or inaccurate diagnosis makes it much easier for the defense to argue that the plaintiff hasn't proven that his or her health problems came from use of the product.

How Diagnosis Affects the Statute of Limitations

Laws called "statutes of limitations" set time limits on the right to file a lawsuit.

Because the development of many forms of cancer and other health problems can be gradual, it's not always clear when the plaintiff's "injury" actually occurred for purposes of this filing deadline in a talc-asbestos case. In some states (like California), the date the person knew—or should have known in the eyes of the law—that the health problems were linked to a talc product is typically the start of the statutory time period. But other factors can influence when the statute of limitations "clock" is said to start. In some jurisdictions, that the plaintiff became or should have become aware of their health problems is what matters, not their potential or actual knowledge of the cause of that harm. Product manufacturers have also been known to argue that the onset of symptoms (not necessarily a clear diagnosis of a health problem) is enough to start the statute of limitations "clock" in certain cases, and some courts have agreed.

Bottom line: If you wait too long to file your lawsuit, you might be barred from pursuing a talcum powder case. An extension of the deadline might be possible, but you should consult a lawyer as soon as you begin to think about whether you have a viable case, especially if your symptoms didn't show up right away.

Many states have a specific statute of limitations for product liability lawsuits, while in other jurisdictions the limitations period for general personal injury lawsuits will apply.

In most instances in most states, regardless of the liability theory you're relying on, the filing deadline ranges from one to six years for a lawsuit over health problems caused by talc products. For wrongful death lawsuits, a different statute of limitations applies (usually with a deadline of one to two years from the person's death). For details on how the statute of limitations affects your situation, talk to a lawyer.

Diagnosis and the Lawyer's Role

Most lawyers will not start a talcum powder lawsuit until they have confirmed that a possible client has a specific health problem that can be linked to use of a certain talc product.

Some attorneys will arrange for a health assessment (a physical examination and imaging tests) for potential clients. Other times attorneys will order medical records from the potential client's doctor or hospital and send the material to medical experts for evaluation.

If your doctor does not think you have a diagnosable condition related to your use of a talc product, but a lawyer's medical expert thinks you do, you can take the expert's report to your own doctor for a follow-up exam, or seek a second opinion from a different doctor.

I Have a Lawyer. What's Next?

A lawyer who has decided to take your talcum powder case will determine which defendant(s) to sue and then file a "complaint" in court. The complaint is the legal document that starts the lawsuit and asks for damages from the defendant. (Note that a lawsuit doesn't always need to be filed; any product liability lawsuit can settle out of court, at any time.)

Next, the case moves into the "discovery" phase, when both sides gather evidence. Your lawyer might need to order additional medical documentation for retained experts to review. Your lawyer's medical experts might also examine you.

Medical Information and Discovery

Defendants are usually entitled to see whatever medical information the plaintiff's lawyer has that's relevant to the case. If you have a case, your lawyer will probably need to provide the defense with a list of facilities where you've been examined or treated. The plaintiff's lawyer usually hands over this kind of information as "answers to interrogatories," part of the discovery phase.

When the defense attorneys decide they want to look at specific medical records the plaintiff's lawyer hasn't already provided, the plaintiff often has to give authorization allowing the release of further medical information. Because of privacy regulations, each authorization must be specific to the facility, so the plaintiff might have to sign a lot of forms.

Sometimes the defense asks for medical information by issuing a subpoena to a facility. If they take this route, they have to notify the plaintiff's attorney. If the request is for something inappropriate or irrelevant, the attorney can try to block the subpoena or review records first to protect the plaintiff's privacy.

Normally, the defense can also have its own medical expert examine the plaintiff (this step is called an "independent medical examination"). The plaintiff's attorney helps arrange such an exam and should protect the client from any improprieties, such as medical tests that aren't related to the plaintiff's claims.

Medical Information and Your Sworn Testimony

If you have a case and it gets to the point of a deposition (or even trial), the defense will ask you about your health generally, your diagnosis, and your treatment. Sometimes plaintiffs' deposition (and trial) answers differ from their written answers to interrogatories because of a mistake in memory. These small discrepancies are normal and extremely unlikely to affect the plaintiff's case. If you have a case, you don't need to prove that your diagnosis is correct or even understand the medical details; expert witnesses will weigh in on those subjects.

If you're considering filing a talcum powder lawsuit, you should consult an attorney as soon as reasonably possible. An experienced lawyer will be able to explain the law as it applies to your situation.

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