On Thursday, November 16, a jury in California handed a big win to Johnson & Johnson, the 130 year old consumer products company that’s a component of the DJIA and the Fortune 500.
A jury in Los Angeles Superior Court found that J&J is not liable for the mesothelioma of a woman who believes that she suffering from that form of cancer as a consequence of her exposure to the asbestos in the company’s Baby Powder.
In a statement after the verdict was handed down, the plaintiff’s lawyer, Chris Panatier, was unrepentant. “It is a matter of time before juries begin holding them to account,” he said, “We just missed on the first one.”
Why does talcum powder contain asbestos?
The underlying mineral in talcum powder, unsurprisingly called “talc,” is a silicate, mineralogically related to asbestos. Talc, when mined, may be contaminated with asbestos. Johnson & Johnson asserted that it used only pure talc, carefully tested for particle size, and it offered the jury other possible explanations as to how the plaintiff might have come into contact with asbestos.
The important point in a medical context is to understand that the asbestos/mesothelioma connection is now familiar and undisputed. The talc/asbestos connection was the critical one at this trial.
From a left-right point of view, the point to remember is: the politics of asbestos, tort law, and related issues turns out to be more complicated for both the left and the right than simple stereotypes (such as that the right hates tort lawyers and the left loves them) can accommodate.
Right Wing View
Yes, many conservatives in the United States have long been suspicious of tort plaintiffs’ lawyers as a breed. Newt Gingrich’s famous, or infamous, “Contract with America” released during the 1994 Congressional election campaign, stressed “tort reform.” When Republicans won that election and Gingrich became Speaker of the House, one of the results was the “Common Sense Legal Reform Act,” which would have limited product liability claims in general and punitive damages in particular. That was vetoed by President Bill Clinton.
Gingrich also pressed successfully for the Private Securities Litigation Reform Act, a bill designed to keep Wall Street safe from tort lawyers. This one became law, because Gingrich had the votes to override Clinton’s veto.
On the other hand, a conservative group calling itself the Center for a Just Society, which seeks to “advance and defend Judeo-Christian principles of human dignity and social justice in law, policy, and the public square,” has had very positive things to say about tort law as a system of compensation for injury, writing about how it “affirms basic human dignity and the sanctity of human life” while holding “wrongdoers accountable for their actions.”
Left Wing View
Asbestos has been banned altogether in at least 60 countries around the world. The United States is not among them.
Many on the left see this as one of the lamentable examples of American exceptionalism, not unlike our reluctance to adopt a single-payer health system, or our stubborn persistence on broad-based civilian gun ownership.
Yet, contemplating this picture, some hardy center-left souls point out that asbestos is actually only the cause of a “fraction” of mesothelioma cases, and mesothelioma is itself one of the least prevalent of cancers. They wonder: does the tort system misdirect resources so that jury-friendly cancers get the attention?
Some on the left distrust tort law because it is (in general) tied to ideas of fault. As Stephen D. Sugarman, a professor of law at UC Berkeley, once wrote, this means that “technological development can escape paying for the harm that it does when that harm is not readily avoidable,” which plays too easily into the hands of techno-progress-is-good market oriented conservatives.