The Talc Attack

Part 3 of the La Jolla Tobacconization Playbook

One of the most despicable demonstrations of US tort law abuse of the La Jolla Tobacconization Playbook is in the relentless attack on Johnson & Johnson’s talcum powder products. It is utterly disgraceful that lawyers are paying off corruptible scientists to attempt to bankrupt one of the leading cancer-research companies and then claim they are acting for the public good. Now some of the worst bottom-feeders from the activist community are ponying up to enrich themselves in the extortion process. This is not about fighting cancer, not at all. This entire spectacle is about creating fear, attacking industry and getting rich from an unethical playbook that has grown tiresome and shameful.

About Talc

Talc is a mined substance used in many industrial and alimentary applications. There are a wide variety of grades and sources, with the highest purity grade used for pharmaceutical purposes like talcum powder. Asbestos fibers have been found in or near talc sources but more than 50 years of testing and monitoring by regulators, third party labs and J&J’s researchers have not found the presence of asbestos in their pharmaceutical-grade products. Many important studies have shown that the talc grade used in talcum powder is safe.

Claims from certain occupational health scientists that talcum powder could lead to ovarian cancer go back to several studies published in the 1960s. A 2010 International Agency for Research on Cancer monograph had a mixed conclusion and its findings are widely disputed.

Following the La Jolla Tobacconization Playbook, these publications were enough for US tort law firms to begin advertising for plaintiffs suffering from ovarian cancer to come forward claiming it was caused by their use of Johnson’s Baby Powder or Shower-to-Shower. Health activist groups created fear and outrage against the company. According to a Rand Corporation study, mass tort TV ad spend on talc and cancer has been the fifth highest tort advertising spend over the last decade (spending more than $120 million just on TV ads). There are more than 50,000 lawsuits against J&J’s talc product as the company attempts to spin off cases into a bankrupt unit designed to seek a settlement.

J&J stand behind the science that talc does not cause cancer. Once cases began and the evidence linking talc to cancer was shown to be inadequate, lawyers for the plaintiffs changed their argument and claimed it was the asbestos present in the talcum powder that caused the cancers and not the talc. One small problem: tests have not shown the presence of asbestos in J&J talc products (the tort lawyers are claiming they are not using proper testing procedures).

These claims of the J&J asbestos link were legitimized based on a Reuters investigation in December 2018 claiming that J&J knew back in the 1970s that on three occasions tests had found trace levels of asbestos.

The Reuters’ document plays on scientific language qualifications – where scientists avoid using words like “always” or “100% safe”. These words make no sense for scientists who deal in degrees of certainty. Their documents primarily discuss the ambiguities with various testing methods.

But scientific language can get twisted by tort showmen in front of an audience. Like the ExxonKnew or the Monsanto Papers campaigns, facts were not the issue here but rather that J&J did not disclose ambiguous findings from their research in the 1970s (even if they were insignificant). Moral arguments diffuse scientific facts, create jury outrage and lead to higher payouts. It also, for Reuters, gets a lot of media attention.

About the La Jolla Tobacconization Playbook

This Firebreak series looks at how an anti-industry strategy conceived at a workshop in La Jolla, CA in 2012 has changed the landscape for industry and regulators. Groups of lawyers, activists and academics gathered to lay out a strategy of tobacconization of other industries. The logic is to bypass the democratic regulatory process by using mass tort litigation assaults to force industries, via targeted companies, to either change their business practices or face bankruptcy. This was seen as the only way activists had succeeded to get the tobacco industry to “surrender” and is seen as the best measure to attack the fossil fuel, chemicals, pesticides, food industries….

This series has already shown how the tobacconization strategy has played out against ExxonMobil and Monsanto. Law firms are earning billions in settlements which they are distributing among their network of NGOs, academics, film-makers and journalists to enforce their anti-industry, post-capitalist narrative. With talc, the target is the pharmaceutical industry, and J&J in particular.

But why focus on J&J, a company that has a long history of innovative products, commitment to responsible research and social achievements? Like any La Jolla Playbook, there are a group of lawyers, academics and activists who see any corporation as evil, misrepresentative or an opportunity. One such group has been involved in lawsuits against J&J on transvaginal mesh devices and painkillers. But talc has become their Holy Grail.

Histrionics and Hysteria

Mark Lanier has emerged as the king of the talc lawsuits. He describes himself as an “author, teacher, pastor and expert story teller,” and has made a good living as a dramatic actor, preacher and impresario (but his gigs as a tort lawyer pay better). He started out making a career of suing J&J on transvaginal mesh and opioids but he has gathered most attention following the 2018 verdict against J&J on talc that saw a Missouri court award $4.7 billion to 22 plaintiffs.

After J&J lost about $40 billion of market value post-verdict, Lanier bragged on CNBC that media attention helped the maestro drive the stock down. 

Lanier boldly claimed “it serves my purposes as a litigant to say, ‘Yes, get their attention; keep driving the stock down.’” Lanier’s view is simple: J&J should settle out of court with him as it would be far cheaper than any further lost market value from his ongoing cases. This play to settle is not the voice of a person seeking justice for victims of corporate malfeasance; this is the voice of someone out to make a quick profit. This is pure extortion in all of its blatant disgrace.

Lanier has made billions from his courtroom antics but has also garnered a fair share of criticism for his histrionics, lack of evidence and misuse of information. The media though rarely cover those cases when his victories are overturned on appeal (and there have been many). Such stories are far less sensational no doubt than a preacher’s summation on corporate greed and evil.

Fact Fashioners

Like the case of glyphosate and the pack of Ramazzini bottom-feeders living well off of $500/hour litigation consulting fees, the La Jolla Talc Playbook needed a good number of scientists to add gravitas to the courtroom theatrics.

Dan Fisher observed:

“A small group of highly paid experts, one of whom recently testified his firm has made $30 million offering mostly pro-plaintiff testimony, are the key ingredient for more than 10,000 lawsuits claiming talcum powder is laced with deadly asbestos, forming the tip of an inverted pyramid upon which the rest of the cases depend.”

Perhaps the most infamous talc scientific mercenary is David Egilman who has testified in more than 600 cases against industry, and has worked many times as Mark Lanier’s courtroom sidekick. He has reportedly earned millions as a litigation consultant on talc.

The journal, Science, published a glowing biography of Egilman that did not mention the retraction of a key paper of his by The Journal of Environmental and Occupational Health Policy. Most of his publications are tirades against industry. The journal, rather, glorified his transformation from scientist to anti-industry militant.

“He left NIOSH and returned to Brown, where he teaches just one course, Science and Power: The Corruption of Public Health. It leaves him time to do research in global public health and take part in litigation. The course also serves as a fertile ground for recruiting the students who help him dig through company files and find the incriminating memos that often win cases.”

It is hard to consider Egilman as a professor since his only course is used to recruit students as cheap researchers to hunt for inconsistencies to legitimize his conspiracy theories (while he enriches himself). What kind of moral values is this militant imparting upon the next generation of young scientists?

Another talc consultant who has testified in hundreds of cases is Jacqueline Moline. She is presently being sued by J&J for publishing a paper that spread junk science laced with falsehoods and reportedly false research subjects. Her paper is widely used by lawyers and spread on anti-talc websites even though J&J recently turned over a verdict on appeal due to the very poor scientific quality of Dr Moline’s testimony.

Media silence

Talc is another egregious La Jolla Playbook case where tort lawyers are abusing corruptible scientists and creating unnecessary public fear to enrich themselves and attempt to destroy an iconic American company. The media is not only missing the story of how a group of self-appointed zealots can deny scientific facts, create public fear and bankrupt one of the key cancer research companies, they are largely complicit.