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Supreme Court rejects Johnson & Johnson’s appeal of $2 billion penalty in baby powder cancer case

In this photo illustration, a container of Johnson’s baby powder made by Johnson and Johnson sits on a table on July 13, 2018 in San Francisco, California.

Justin Sullivan | Getty Images

The Supreme Court on Tuesday turned back an appeal from Johnson & Johnson seeking to undo a $2.1 billion award against it over allegations that asbestos in its talc powder products, including baby powder, caused women to develop ovarian cancer.

The top court announced in an order with no noted dissents that it will not hear the case. Justice Samuel Alito and Brett Kavanaugh recused themselves from consideration of the case, according to the order.

Johnson & Johnson had asked the top court to review the penalty against it after the amount was upheld by the Missouri Supreme Court last year. A state appeals court earlier reduced the penalty against Johnson & Johnson from more than $4 billion.

The dispute featured fierce legal firepower on both sides, with former acting solicitor general Neal Katyal arguing on behalf of the New Brunswick, New Jersey-based pharmaceutical maker and Ken Starr, the former Whitewater prosecutor, representing women with ovarian cancer who sued the company.

Johnson & Johnson said it stopped selling its talc-based baby powder in the United States and Canada in May 2020, citing reduced demand “fueled by misinformation around the safety of the product and a constant barrage of litigation advertising.”

The company had said that it is facing more than 21,800 lawsuits against it over its talc products.

Starr wrote in his brief urging the justices not to review the case that Johnson and Johnson “knew for decades that their talc powders contained asbestos, a highly carcinogenic substance with no known safe exposure level.”

“They could have protected customers by switching from talc to cornstarch, as their own scientists proposed as early as 1973. But talc was cheaper and petitioners were unwilling to sacrifice profits for a safer product,” he wrote.

In contrast, Katyal argued that “federal regulators and respected health organizations have rejected calls for warnings on talc, and comprehensive epidemiological studies tracking tens of thousands of talc users have found no meaningful association between cosmetic talc use and ovarian cancer.”

Katyal said that attorneys for those who had sued Johnson & Johnson had searched the country “for women who were both diagnosed with ovarian cancer and among the millions who used Petitioners’ talc products.”

“They put dozens of plaintiffs on the stand to discuss their experiences with cancer, and the jury awards billions of dollars in punitive damages supposedly to punish Petitioners,” he wrote. “Lawyers can then follow this script and file the same claims with new plaintiffs and seek new outsized awards, over and over again.”

In a statement on Tuesday, Johnson & Johnson said that the Supreme Court’s decision left important legal questions unresolved.

“The matters that were before the court are related to legal procedure, and not safety,” the company said. “Decades of independent scientific evaluations confirm Johnson’s Baby Powder is safe, does not contain asbestos, and does not cause cancer.”

Starr did not immediately return a request for comment.

Johnson and Johnson shares were down more than 1% on Tuesday morning.

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