Do I Need a Lawyer for My Talcum Powder/Asbestos Lawsuit?

What to expect in (and from) a talc-asbestos lawsuit, tips on finding the right lawyer, and the fine print of the attorney-client contract.

Updated by , J.D. · University of San Francisco School of Law

If you're thinking about filing a lawsuit over health problems linked to your use of Johnson's Baby Powder or another talc-based product that might have contained asbestos, it's crucial to have a lawyer on your side. Here's what to know:

  • Most talc-asbestos lawyers will represent you under a "contingency fee" agreement, meaning the lawyer gets paid out of any settlement funds or court award you receive.
  • It's your lawyer's job to assemble the right team of medical experts, comply with lawsuit filing deadlines and other court rules, and put your best talc-asbestos case together.
  • Your attorney-client agreement should spell out the details of issues like how (and when) case expenses and "costs" are calculated.

Johnson and Johnson's Baby Powder Lawsuits

In recent years, thousands of lawsuits have been filed against Johnson & Johnson and other companies, over illnesses that have been linked to Johnson's Baby Powder and similar products containing talc.

The issue is that talc, a naturally-occurring mineral, is often found (and mined) alongside asbestos—another natural mineral, but one that's also a known carcinogen with an infamous record of causing serious health problems like mesothelioma. In 2019, the U.S. Food and Drug Administration (FDA) announced that asbestos had been found in a sample of Johnson's Baby Powder. At first, only a small amount of the product was recalled, but by 2020 J&J—facing a rising wave of lawsuits alleging that its products caused ovarian cancer and mesothelioma—announced that it would stop selling its Baby Powder product across North America. (Get the latest from the FDA on talc and asbestos.)

Am I Eligible to File a Talcum Powder Lawsuit?

Eligibility to file an injury-related lawsuit against Johnson & Johnson, or any manufacturer of a talc product that might have been contaminated with asbestos, hinges on:

  • your ability to demonstrate that you used the talc-based product somewhat extensively (usually over a period of years)
  • a clear medical diagnosis of a health problem that might be linked to the presence of asbestos in the talc-based product (such as ovarian cancer or mesothelioma), and
  • compliance with applicable lawsuit-filing deadlines, which are set by laws called statutes of limitations.

It's important to note here that a history of use of a product like Johnson's Baby Powder isn't enough, on its own, to form the basis of an injury lawsuit against the manufacturer. You need to be able to establish that provable harm resulted from that use. That's why an accurate medical diagnosis is a crucial piece of the in talc-asbestos lawsuit puzzle.

What Is the Statute of Limitations for an Asbestos Talcum Powder Lawsuit?

It's not always easy to understand how lawsuit-filing deadlines work, especially when serious health problems—including different forms of cancer—might not always arise until months (possibly even years) after use of a talc-based product.

A lawsuit seeking compensation for health problems caused by use of a talcum powder product will likely be based on the concept of "product liability." In most states, the statute-of-limitations deadline that will apply to a product liability lawsuit is the same as the one that applies to most personal injury lawsuits. But some states have a separate statute of limitations for product liability lawsuits.

Also, the time limit that applies to a product liability lawsuit can depend on the kind of legal argument you're making against the manufacturer (or other defendant). For example, a state's rules could make lawsuits based on "strict liability"—a legal theory that requires no proof of fault—subject to a four-year filing deadline. That same state might have a separate deadline of six years for product liability cases alleging negligence.

The "Discovery Rule" in Talcum Powder-Asbestos Lawsuits

In many kinds of injury cases, including those stemming from health risks linked to use of baby powder and other talc products, the statute of limitations "clock" might not start running on the date of the consumer's last use of the product. Instead, under the "discovery rule," the clock might start only when the consumer discovers (or should reasonably have discovered) having been harmed by the product, or on the date of diagnosis of a health problem linked to use of the product. Or the relevant discovery rule could simply provide that the clock starts on the date the person was diagnosed with or started experiencing symptoms of a health problem caused by the product.

For example, let's say you last used baby powder or a similar product on May 1, 2018, but you didn't begin experiencing health problems (symptoms of a form of cancer, for example) until November 15, 2021. Under the discovery rule, the statute of limitations "clock" might not start until November 15, 2021.

If you're confused about which statute of limitations applies to your talcum powder-asbestos case, and whether you might be entitled to an extension of any filing deadline that's looming (or has already passed), don't worry. It's not your job to understand complex rules like these, let alone figure out how they might affect your case. An attorney will be familiar with the statute of limitations deadline in your state, and can craft the right strategy for protecting your rights.

How Much Is a Talcum Powder Lawsuit Worth?

Every lawsuit over asbestos-related illness is different, so there's no reliable way to predict the value of a single case. Too many variables are at play. But in general, figuring out how much an asbestos-talc case might be worth starts with calculating the plaintiff's "damages", which is a legal term referring to the spectrum of losses. These include:

  • medical bills arising from the plaintiff's asbestos-related illness
  • the cost of future medical treatment that will be necessary
  • lost income and any financial impact on the plaintiff's ability to earn a living, and
  • the plaintiff's physical and mental pain and suffering resulting from their asbestos-related illness, necessary medical treatment, and the impact of their health problems on all aspects of their life.

One potential yardstick for the value of a talc-asbestos claim came in October 2020, when Johnson & Johnson announced that it had reached an agreement to settle around 1,000 Johnson's Baby Powder lawsuits for just over $100 million. That breaks down to about $100,000 per lawsuit, but it's not clear whether each plaintiff received the same amount, or whether factors like severity of illness were considered.

Do You Need a Talcum Powder Lawyer for Your Talc-Asbestos Lawsuit?

Having the right lawyer on your side is crucial in a talc-asbestos lawsuit, since these cases often hinge on complex medical evidence and key issues like causation. A lawyer will have the experience and expertise to position your case for the best result.

Legal Experience In Similar Cases

With some types of injuries, it might not be a bad idea to handle the claim on your own. For instance, if you've been in a minor car accident, the other driver was clearly at fault, and your injuries weren't significant, hiring a lawyer might not make much of a difference, as long as you're willing to dive into the claim process. But talc-asbestos cases are very different.

First of all, as noted above, the stakes are much higher in a talc-asbestos case than in other types of injury cases. When it comes time to negotiate with a large manufacturer—such as Johnson & Johnson—and its team of attorneys, a good lawyer will have the skill, experience, and resolve to stand up and fight for your case.

Second, when you hire a lawyer who has experience handling talc-asbestos or similar lawsuits, you're putting your case in the hands of someone who has been here before—that means they know the best evidence to put forward, the right legal arguments to make, and how to avoid the types of pitfalls that could derail your case. Maybe they've even successfully dealt with cases that are identical to yours in terms of:

  • the type of talcum product involved
  • the kinds of health problems linked to the use of talc, such as ovarian cancer or mesothelioma, or
  • the manufacturer of the product (the defendant in your lawsuit).

The Attorney's Network

When you hire an attorney with experience in talc-asbestos cases, you're also getting the support of that lawyer's network of medical experts, investigators, litigation consultants, and other professionals—people who should be equipped to help build a strong case.

You Can Focus on Your Health

When you're experiencing a medical problem resulting from the use of a talc product, your health is your priority. Putting the legal side of things in capable hands means that you can focus on getting well, while your attorney focuses on building your best case.

A few words of caution: Even if you think you have a good case, be prepared for a lawyer to turn down the opportunity to represent you. Many lawyers do not take cases if they fall below a certain potential recovery amount, or if a key element of the case is less than clear. Maybe you have a long history of using baby powder or a similar product, but haven't received a diagnosis of a specific health problem, for example. Be prepared to keep looking for help with your case, or to look again as your situation changes.

Where to Start Your Attorney Search

Asking for a referral to an attorney from someone you trust can be a good way to find legal help, but the simple fact is that many people don't have a big word-of-mouth network when it comes to lawyers. Online resources like AllLaw are a great way to get started. You can use the chat and information submission tools right on this page to reach out to a talc-asbestos lawyer in your area.

Remember, you're not just looking for someone who has experience handling lawsuits like yours; you're also looking for someone you can trust and whom you feel comfortable with.

State bar associations typically have websites that allow you to look up lawyers and learn information like whether they've been subject to any discipline. (Learn more about finding the right lawyer for a personal injury case.)

What to Ask a Talcum Powder Attorney

Whether you talk to a lawyer in person or over the phone, here are some topics you might want to touch on.

  • How long has the lawyer been in practice?
  • Roughly what percentage of the lawyer's practice involves personal injury cases? Has the lawyer handled other cases related to defective products in general, or the safety of talc-based products in particular?
  • Does the lawyer most often represent plaintiffs or defendants? You probably don't want to be represented by someone who has experience with personal injury cases but who has primarily been a lawyer for defendants. Advocating for plaintiffs who have been hurt is much different from helping a client avoid liability at all costs.
  • Would the lawyer personally handle your case or pass it along to another—perhaps less experienced—lawyer in the office? It's normal for more than one attorney in an office to work on the same case, and to have less experienced attorneys (or paralegals and others) handle routine tasks. But you should find out who would have primary responsibility for your case and whom you would be dealing with directly. (Learn about working with a lawyer on an injury-related case.)
  • How will the lawyer and expenses be paid? Personal injury lawyers usually get paid only if the plaintiff gets compensation through a settlement or trial—usually they take a percentage of the overall sum. (More on "contingency fees" below.) Expenses normally come out of that money, too, but you'll want to confirm that and establish whether they would come out of the overall sum, the lawyer's cut, or your cut.

Remember to consider any special needs you might have, and any practicalities. For example, could you benefit from an attorney who speaks a language other than English? If you'll need to visit the lawyer from time to time, is the lawyer's office relatively nearby and close to public transportation (if that's how you travel)?

How Does a Contingency Fee Work?

Most personal injury lawyers handle lawsuits on a "contingency fee" basis, and talc-asbestos lawsuits are no different. Under a contingency fee agreement, the attorney collects a fee for representing you only if you receive a favorable outcome in your case. If you're considering working with an attorney in your talc-asbestos case, it's important to understand how contingency fee agreements work—including the fine print on issues like "costs."

Under a contingency fee agreement, your attorney takes a percentage of any settlement or court judgment you receive, and usually pays for all costs as the case proceeds. If your talc-asbestos case does not reach a settlement, and there is no court judgment in your favor, you typically do not owe the attorney anything.

A contingency fee is often 33%. Some attorneys will handle a talc-asbestos case on a "sliding scale," which works much the same way as a standard contingency fee arrangement, except the percentage goes up as the litigation progresses. For example, if the case settles before the lawyer has to file a lawsuit in civil court, the fee percentage might be 25%. If the plaintiff (the client) wins after a lawsuit is filed and the case goes all the way through trial, the attorney's fee might be 40%. (Learn more about personal injury attorney fees.)

Some attorneys might have a policy of raising their contingency fee percentage once a talc case is assigned a trial date, because at that point the matter begins to demand more time. If an appeal is necessary, the attorney's fee might go up as part of the contract, or the attorney might want to draw up a new contract—that is, if you decide to use the same attorney for the appeal.

Typical "Costs" in a Talc-Asbestos Case

Costs and fees are two different things in a lawsuit over asbestos-tainted talc products. Costs are the expenses that the attorney or firm pays in order to move the case along toward settlement or judgment. Costs typically include:

  • filing fees (for the initial complaint, subsequent motions, and such)
  • the cost of serving documents on defendants
  • charges for obtaining medical records
  • deposition transcript fees, and
  • payment to medical experts (these fees can easily amount to thousands of dollars in talc-asbestos cases, which almost always involve a diagnosis of ovarian cancer, mesothelioma, or some other serious health problem).

Most plaintiffs' attorneys will try to keep costs down and not spend any money unnecessarily. If unable to settle, the attorney will usually be responsible for the costs. But it's important to make sure that ultimate financial responsibility for costs is spelled out in your fee agreement with your lawyer.

Different from costs, an attorney's fees are paid to compensate the attorney for his or her time, as well as the time of any support staff. Included in this fee is compensation for researching and drafting the complaint and motions, appearing in court, calling witnesses, reviewing documents, taking and defending depositions, and preparing for and putting on a trial.

(Read more about managing lawyer costs and expenses in a personal injury case.)

How Costs Are Calculated in a Talc-Asbestos Case

If you win your case, you will usually be on the financial hook for costs. But whether your attorney takes his or her contingency fee percentage before or after these costs are paid can make a significant difference in how much you ultimately receive.

For example, let's say your talc-asbestos lawsuit goes to trial, and the jury awards you $200,000. (For more information, read about how much a talc-asbestos case is worth.) Your litigation costs are $25,000, and your attorney's contingency fee percentage is 33%. If your litigation costs are paid before your attorney takes his or her contingency fee percentage, the attorney gets $57,750 (33% of $175,000) and you get $117,250 ($175,000 minus $57,750).

But if you pay for litigation costs after your attorney takes the contingency fee percentage, your attorney gets $66,000 (33% of $200,000) and you get $109,000 ($134,000 minus $25,000). The timing here results in an $8,250 difference in your settlement.

Again, these kinds of financial details—and whether you could be responsible for any expenses if you don't end up with a settlement or judgment—should be clearly stated in the agreement you sign.

Changing Lawyers in the Middle of Your Case

Let's say that sometime after you hire Attorney A, you decide to end the attorney-client relationship (for whatever reason) and take your talc-asbestos case to Attorney B at a different firm. Attorney A probably has a "lien" on any costs advanced toward your case, and on any proportional fees for representation, which will likely come out of any settlement or judgment Attorney B obtains on your behalf. The attorneys will sort this issue out between themselves, but it's something to keep in mind, and to discuss with a new attorney if you change representation.

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