Factual and procedural background
Patricia Schmitz, a former fifth-grade teacher, is a 61-year-old California woman. Her mother applied baby powder containing talc when she was an infant. Beginning when she was 13, Schmitz began using talc-based products daily after her shower. She used Colgate-Palmolive’s Cashmere Bouquet on a daily basis from the time that she was 13 until the 2000s. She also used Avon’s Night Magic at some point in time. Her mother had used Johnson & Johnson’s baby powder on her when she was an infant.
In 2018, Schmitz was diagnosed with mesothelioma after locating it near her heart. Her cancer is advanced, and she is not expected to live past the summer of 2019. Schmitz’s attorneys had experts test bottles of Johnson & Johnson’s powder and Colgate-Palmolive’s Cashmere Bouquet. The experts found asbestos fiber in 70 bottles of the Johnson & Johnson powder and 20 bottles of the Cashmere Bouquet. Schmitz filed a lawsuit against the two companies, asking for compensatory and punitive damages.
Issue: Whether Johnson & Johnson had a duty to warn consumers about the potential of asbestos fibers in its talc-based products?
The primary issue was whether Johnson & Johnson and Colgate-Palmolive had a duty to warn consumers that their talc-based products could contain asbestos fibers. Schmitz filed her case under a theory of products liability, arguing that both companies had a duty to warn consumers about the possible presence of asbestos fibers, which can lead to mesothelioma. The companies argued that they did not have a duty and that scientific research has demonstrated that talc-based products are perfectly safe.
Rule: Products manufacturers must provide adequate warnings of the potential harms that consumers might suffer when they use their products.
Manufacturers have a duty to provide warnings to consumers about the potential hazards of their products that the manufacturers knew about or reasonably should have known about. When the manufacturers fail to provide adequate warnings, and their failure to do so results in injuries to consumers who have used the products in the manner in which they were intended to use them, the manufacturers may be liable to pay damages.
Mesothelioma is a rare form of cancer that is linked to exposure to asbestos. Talc is a mineral substance that is inert. However, it is often located in the same areas where asbestos is found. This makes contamination of talcum powder with asbestos possible. Johnson & Johnson argued that its own testing regimen has not found the presence of asbestos. Similarly, Colgate-Palmolive argued that its tests had not revealed asbestos fibers in its products. The company also argued that if asbestos was present, its own tests would have discovered it.
In a previous case against Johnson & Johnson, a jury had recommended that the company include a warning. However, Johnson & Johnson failed to follow that jury’s recommendation.
Schmitz and her attorneys argued that its own testing revealed the presence of asbestos in multiple bottles of Johnson & Johnson baby powder and Colgate-Palmolive’s Cashmere Bouquet. The jury was able to view electron microscope photographs that allegedly showed the presence of asbestos fibers in the talcum powder products. The jury was also presented with evidence of internal memos from within Johnson & Johnson in which company officials discussed the presence of asbestos fibers in their talcum powder products.
Schmitz argued that the companies had a duty of care to provide adequate warnings about the dangers of their talc-based products. The companies argued that they did not have a duty because their products were safe, were free of asbestos, and did not cause Schmitz’s cancer.
As we have previously discussed, the manufacturers of products that are safely designed but that still contain dangers must warn consumers about the dangers of the products. If they fail to provide adequate warnings to consumers, they may be liable for harms that result from the consumers’ use of their products. In this case, Schmitz alleged that Johnson & Johnson and Colgate-Palmolive failed to warn consumers about the potential danger of asbestos in their products even though they knew or should have known about the potential hazard. Johnson & Johnson’s lead lawyer argued that internal company documents going back more than 70 years showed that the company had made good faith efforts in how it handled the minerals. However, in light of the mining issues associated with talc-mining when asbestos is nearby, the jury may have interpreted this as the fact that Johnson & Johnson knew about the potential danger yet still failed to warn consumers about it.
Under California’s products liability laws, manufacturers have a duty to create products in such a way that the products will not cause injuries to consumers. If they subsequently discover a defect, the companies should recall the products in order to prevent harm. Companies must also include warning labels about the potential dangers of the products that they sell. If they don’t, they may be found to be liable to pay damages to consumers who are injured as a result of using the products.
The jury rejected the arguments of Johnson & Johnson and Colgate-Palmolive. They returned a gross verdict of more than $10 million in favor of Schmitz. The jury found that Johnson & Johnson and Colgate-Palmolive were each 40% liable for Schmitz’s mesothelioma, which amounted to roughly $4.8 million each. The jury also found that Avon was 20% liable. However, since Schmitz did not name Avon as a defendant to her lawsuit, she will be unlikely to be able to recover damages from that company. Johnson & Johnson and Colgate-Palmolive have both said that they intend to appeal the jury’s verdict. Johnson & Johnson is currently facing thousands of lawsuits around the country about its talc-based products.
Contact an experienced personal injury attorney in Los Angeles
If you have contracted mesothelioma after using talc-based products for years, you may have legal rights. It is important for you to consult with an experienced Los Angeles personal injury lawyer. The manufacturers of these potentially dangerous products are large, multinational corporations with teams of defense lawyers that are ready to defend against lawsuits. To schedule a free consultation with an experienced attorney, contact the law firm of Steven M. Sweat APC today.