What If My Talcum Powder-Asbestos Illness Didn't Show Up Right Away?

How the lawsuit-filing deadline set by the statute of limitations might apply to your lawsuit over health problems linked to asbestos in talcum powder.

Popular talc-based products like Johnson's® Baby Powder have been linked to a heightened risk of ovarian cancer and other health problems. The evidence isn't infallible, but thousands of lawsuits claim that certain talc products contain asbestos (a known carcinogen), and that the manufacturers of these products hid known health risks from consumers. A big marketing shift came in May 2020, when Johnson & Johnson made the decision to stop selling Johnson's® Baby Powder in North America.

If you're thinking about taking legal action in connection with your use of Johnson's® Baby Powder or a similar product, it's important to understand that there are deadlines for filing an injury-related civil lawsuit in court. How do these 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?

Lawsuit Deadlines Are Set by the Statute of Limitations

In every state, laws called "statutes of limitations" set a limit on how much time can pass before you must get a lawsuit filed in court. Different deadlines apply to different kinds of cases, but the impact of failing to comply with the time limit is the same: miss the deadline and you've lost your right to sue and get compensation for your losses (known as "damages"). But while these deadlines are strictly-enforced, every state has carved out exceptions that can extend the filing deadline. (More on these exceptions later).

What Statute of Limitations Applies to a Talc-Asbestos Lawsuit?

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." This is a fault theory that can be used to hold manufacturers and others (including distributors retailers in some cases) responsible for injuries caused by unreasonably dangerous products.

In most states, the statute-of-limitations deadline that will apply to a talcum powder 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.

Most lawsuits over illness linked to Johnson's® Baby Powder or another talcum powder product will argue a strict liability theory of fault, meaning that they would be subject to the four-year period in our hypothetical state. But some people might base their suits on allegations that their asbestos-related health problems were the result of some level of carelessness on the part of the talcum powder product manufacturer, or the wrongful action (or inaction) of a different entity. Plaintiffs relying on this latter argument would have six years to file their lawsuit in our hypothetical state. (Of course, the law in your state could set a much shorter period than four or six years, which is a reason why consulting a lawyer is so important.)

Learn more about how a manufacturer's "failure to warn" can lead to liability, which is the legal argument that has been made in most lawsuits against Johnson & Johnson and other manufacturers of talcum powder products.

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. (Learn more about the importance of a medical diagnosis in a talcum powder lawsuit.)

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, 2019. Under the discovery rule, the statute of limitations "clock" might not start until November 15, 2019.

Sorting out Filing Deadlines Is Your Attorney's Job

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 a strategy for protecting your rights.

For more information, read about finding the right lawyer for you and your talcum powder illness case.

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