If you're experiencing health problems that might be linked to the presence of asbestos in talcum powder products, you might be considering legal action against the product manufacturer. Here's what to keep in mind:
Talc is a naturally-occurring mineral that is often found (and mined) alongside asbestos—another natural mineral, but also a known carcinogen with a long history of causing serious health problems like mesothelioma and other forms of cancer.
Since the 1960s studies over the safety of of talc-based powders have revealed a potential connection between these products and the development of ovarian cancer, mesothelioma, and other illnesses, but no conclusive link has been established. The FDA currently categorizes its research on the issue as "ongoing," although in 2019 the agency alerted consumers to the presence of asbestos in a sample of a product lot of Johnson's Baby Powder, and announced that the company was voluntarily recalling a small amount of the product. Other J&J products (including all other product lots of Johnson's Baby Powder) remained on the shelves, even as the company began facing a wave of lawsuits alleging that its talc-based products caused ovarian cancer, mesothelioma, and other health problems.
J&J's risk-profit balance tilted for good in May 2020, when the company announced that it would stop selling its Baby Powder product across North America.
The vast majority of talc-asbestos lawsuits have been filed against Johnson & Johnson and its largest talc supplier, Imerys Talc America, Inc. The main legal arguments in these lawsuits are that J&J and Imerys:
If you're considering taking legal action against J&J, the first thing to know is that it's not enough to have used Johnson's Baby Powder or another talcum powder product in the past, no matter how extensively. In order to file an injury lawsuit like this, you need to be able to demonstrate that:
Even if you or a loved one have used Johnson's Baby Powder for years, it's important to remember that use of a recalled/withdrawn product, on its own, won't justify the filing of a lawsuit (or at least it won't help prove your individual case).
In cases like these, the key is a link between the development of an illness like ovarian cancer and use of a product containing talc. So, a clear diagnosis is often a critical step on the path toward legal action.
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.
Laws called "statutes of limitations" determine the time limit that will apply to your ability to file a lawsuit over health problems caused by your use of a product like Johnson's Baby Powder. But since the development of illnesses like cancer can be gradual, it's not always clear when the statute of limitations "clock" actually starts. In some states (like California), the date the person knew—or should have known in the eyes of the law—that their 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, the point when the plaintiff became aware (or should have become aware) of their health problems is what matters, not necessarily their potential or actual knowledge of the cause of their 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.
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.
We've already touched on the importance of a diagnosis in establishing your eligibility for filing a lawsuit over your use of Johnson's Baby Powder or another talcum powder product. But this diagnosis—or more accurately, the specifics of your health problems, the impact they have on your life, and your prognosis going forward—shape the value of the case and define the spectrum of your losses ("damages" in the language of the law).
Diagnosis goes straight to the nature and extent of the plaintiff's losses ( in legalese). A talc-asbestos case almost always includes both "economic" damages—covering medical bills, lost income, and other quantifiable losses—and "non-economic" damages—applying to pain and suffering and other similar, more subjective consequences of the plaintiff's health problems. We'll cover these damages in a bit more detail later on.
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.
A talc-asbestos lawsuit usually goes through the following phases:
Those are the basic steps in the process, but the two sides could discuss (and finalize) a settlement at any point (more on this later). Now let's take a closer look at factors that have the biggest impact on how long the talc-asbestos lawsuit process might take.
Most talc-asbestos lawsuits rely on the legal concept of product liability, in which a plaintiff seeks to hold a manufacturer responsible for health problems caused by an unreasonably dangerous or otherwise defective product. These kinds of cases can be quite complex. There might be issues to address right at the outset, including the appropriate statute-of-limitations filing deadline in light of the plaintiff's symptoms. And there will certainly be stacks of medical records to sift through, plus expert witnesses to hear from (often multiple experts on both sides of the case).
All this means some of the phases mentioned above will undoubtedly take longer than they might in a less complex lawsuit (one stemming from a car accident, for example). That's especially true when it comes to the discovery process and the filing of pretrial motions that will set the ground rules for any trial.
The court's calendar could also affect the timeline of your case. If the calendar is clogged, hearing and trial dates might get pushed back by weeks or months.
As discussed above, any talc-asbestos lawsuit will most likely follow roughly the same path from the filing of the complaint through a trial, but it's important to note that settlement of the lawsuit can take place at any time.
For example, soon after the complaint is filed the plaintiff's attorney could send a demand letter to the other side, detailing the plaintiff's harm and asking for a certain dollar amount as compensation. This letter could spur serious settlement talks, and if a settlement agreement is reached before trial, the lawsuit will be dismissed.
Especially as the trial date gets closer and the parties get a better sense of the case landscape (and of their respective chances of prevailing), there's a good chance they'll at least test the settlement waters. And even if the two sides don't come together on their own to try to resolve the case out of court, depending on the jurisdiction in which the lawsuit is filed, the court is almost certain to require that the plaintiff and defendant attend at least one mandatory settlement conference before trial takes place. Learn more about how personal injury settlements work.
As with any injury-related case, figuring out the value of a claim over the safety of a talc product starts with an understanding of the nature and extent of the injured person's "damages," which is a legal term that refers to compensation for losses suffered by that person (the plaintiff). Damages are paid by the defendant in the lawsuit. (In these talc-related cases, the defendant is usually a manufacturer like Johnson & Johnson.) Whether your talcum powder case settles out of court or you receive a judgment in your favor after a trial, the money you receive is considered damages. (Learn more about damages in a personal injury case.)
Let's look at some common categories of damages, and how each might affect the value of your talc-asbestos lawsuit.
As a plaintiff, if you win or settle your case, your damages include compensation for:
Note that if the full extent and impact of your medical complications isn't clear, it's probably not in your best interest to accept an injury settlement offer. Your attorney will almost certainly want to wait until both of you have a clear picture of this component of your damages. Once you accept an injury settlement, you can't go back and reopen your claim, even if you learn that your health problems are worse than you first thought.
If your cancer diagnosis or other health issues have forced you to take time off from your job, or have otherwise affected your ability to earn a living, that kind of economic harm will also factor into your damages in a claim over a talc product. Specifically, you are entitled to compensation for any income you've already lost—and for income you would have earned in the future but now won't—due to your health issues. In "legalese," an award based on future income is characterized as compensation for the injured person's "loss of earning capacity" or "diminished earning capacity."
While economic losses like medical bills and lost income are fairly easy to calculate, "pain and suffering" isn't so easy to quantify. But this category of damages plays a big part in determining how much you can expect to receive in an injury case, and can be a crucial component of a talcum powder lawsuit. Pain and suffering is often broken down into two types:
Learn more about pain and suffering in a personal injury case.
One of the biggest variables in determining how long your talc-asbestos lawsuit will take is you. If the defendant offers you a settlement early on, you'll certainly end up with some fast cash, but you might not be getting full and fair compensation for your losses. (Learn more about how much a talc-asbestos case might be worth.)
Early settlement usually isn't a good idea—especially if there are still big unknowns, including:
Filing a lawsuit over a corporate giant like Johnson & Johnson isn't something you want to try to do on your own, and articles like this one can only give you a basic sense of what to expect in your case. There's no substitute for discussing the specifics of your situation with a knowledgeable lawyer.
Talc-asbestos lawsuits often hinge on complex medical evidence. A lawyer will have the experience and resources to assemble your best case (including retaining the right medical experts) and work towards getting the best outcome. You can use the tools on this page to connect with an attorney who handles talc-asbestos claims in your area. Answer three questions and you're eligible for a free evaluation of your case. You can also learn more about hiring and working with a talc-asbestos lawyer.