A tort is a civil wrong that causes personal injury. The person so affected can file a civil lawsuit and claim compensation. A mass tort on the other hand causes injury but to many different classes of people. “Mass tort claims can include different complaints against the same defendants’, and often involve injuries from dangerous drugs and medical products. For instance, patients can sue the maker of a defective medical implant for different types of injuries. In a mass tort case, they would file individual lawsuits, which are grouped only for pretrial proceedings, and then they may be tried later in their original state jurisdiction.”[1]
What are common mass tort claims?[2]
- Prescription drugs
- Product liability, which includes medical devices: Claims typically fall into three categories: 1) defective manufacture, 2) defective design, 3) failure to provide adequate warnings or instructions concerning the proper use of a product.
- Toxic contamination: Also known as “toxic torts,” these cases involve hazardous pollutants or chemicals that have poisoned people.
Talcum Powder and the deadening catastrophe related to it:
Talc, the key ingredient in a baby powder, is a naturally occurring mineral that is found throughout the world. Talc is a soft mineral comprised of magnesium, silicon, and oxygen. Studies have revealed that thousands of infant deaths and serious illnesses each year have resulted from the accidental inhalation or the usage of baby powder one amongst them being the most common would-be ovarian cancer.[3]
Johnson & Johnson (hereinafter referred to as J&J) is an American multinational corporation founded in 1886 that develops medical devices, pharmaceuticals, and consumer packaged goods. Johnson & Johnson’s brands include numerous household names of medications and first aid supplies. Among its well-known consumer products is the Band-Aid Brand line of bandages, Tylenol medications, Johnson’s Baby products etc.[4]
The Darlene Coker lawsuit[5] was the first case that alleged that the J&J baby powder caused cancer:
- They sued Defendant for personal injury,
- They stated that Defendant acted grossly negligently, fraudulently and with deceit,
- Defendant falsely sold their defective products to the plaintiff,
- That the Defendant intentionally exposed the Plaintiff to talc causing her to contract peritoneal mesothelioma,
- Plaintiffs demanded a judgment against the Defendants, for jointly and severally, for general damages, special damages, for punitive and exemplary damages, for their costs expended herein, and for any such other further relief, both at law and in equity, to which Plaintiffs may show themselves justly entitled.
The infamous verdict of St. Louis:
Many lawsuits have been initiated against J&J which claims that the talc-based baby powder manufactured by them causes ovarian cancer and the main reason for the same is its asbestos content present in the talc. The U.S. Supreme Court held J&J to pay up $2.1 billion awards as compensation to women who have been affected by the said product. The company still faces more than 26,000 lawsuits blaming baby powder for causing cancers. So far J&J has pulled the product off U.S. and Canadian shelves last year.[6] At the end of the three-week trial, the verdict was the first time damages have been awarded by a US jury over talc claims. More than 1,000 similar cases are still pending nationwide, and lawyers said thousands more could now be filed.[7]
The case of Robert Ingham et al. v. Johnson & Johnson, et al however took a different turn when the verdict was upheld by the Missouri Court of Appeals. On November 3rd, 2020, the Missouri Supreme Court refused to hear an appeal from Johnson & Johnson. The courts let stand a state appellate decision that affirmed a $2.2 billion jury verdict against the consumer giant and for women who claimed their ovarian cancer was caused by Johnson & Johnson’s talcum powder products. J&J plans to appeal this judgment.[8]
In the case of Wal-Mart Stores, Inc. v. Dukes, et al., 564 U.S. 338 (2011),[9] the Supreme Court held that the determination regarding issues of personal injuries must be made for each plaintiff in each case. The same is true in the case of J&J where the jury awarded 25 million to each plaintiff who hailed from 12 different states. It is important to know that each case differs in their nature – no matter the result however the same. In the case of, Inc. v. Mensing,[10] 564 U.S. 604 and Mutual Pharmaceutical Co. v. Bartless, 570 U.S. 2468. The Supreme Court held that “the original manufacturer shall always be held liable and not anyone else who are connected to such manufacturing.”
Conclusion:
Mass personal injury court cases attract millions of people to sue multinational conglomerates for the losses incurred due to the companies’ medicinal products or any other toxic substances that they release to the general public at large. These businesses have ended up paying billions for damages, lawyer’s fees etc. The possibility of mass tort liability frightens these corporations. Three basic components in mass tort are:
- The commonality of issues,
- Millions affected nation-wide,
- One or two similar defendants.
Mass tort processing will not be successful unless they deal directly with uncertainties flowing from the factual and legal complexity of the cases; address the pervasive, inherent conflicts of interest among parties and attorneys; recognize how the litigation is propelled by the asymmetric risks facing plaintiffs’ attorneys and defendants, and offer clear solutions to issues associated with future claimants.[11] Whilst Johnson & Johnson have compensated thousands of people with million-dollar of money for their defective products and in some instances have also pulled their products of from the market. They are yet to compensate even thousand more, whose claims are yet to be litigated and just seem to be piling up.
[1] https://www.bermansimmons.com/blog/understanding-mass-tort-cases-faqs/ [2] https://www.bermansimmons.com/blog/understanding-mass-tort-cases-faqs/ [3] https://www.andruswagstaff.com/talcum-powder/ [4] https://en.wikipedia.org/wiki/Johnson_%26_Johnson#Baby_powder [5] 1997 Coker lawsuit - DocumentCloud [6] https://www.bloomberg.com/news/articles/2021-06-01/j-j-must-pay-2-1-billion-talc-award-as-top-court-rejects-appeal?srnd=premium&sref=qZlN2rKN [7] https://www.bbc.com/news/world-us-canada-35648252 [8] https://rdm.law/johnson-and-johnson-appeals-landmark-verdict-to-supreme-court/ [9] https://supreme.justia.com/cases/federal/us/564/338/ [10] https://www.supremecourt.gov/opinions/12pdf/12-142_8njq.pdf [11] https://www.rand.org/pubs/research_briefs/RB9021.html
