Johnson and Johnson has reached a comprehensive settlement agreement in its long-running talc litigation that will resolve claims from approximately 62,000 plaintiffs who alleged that the company’s talc-based baby powder and other personal care products caused ovarian cancer and mesothelioma through asbestos contamination in the talc supply. The settlement, valued at approximately $9 billion and payable over 25 years, was announced on Thursday following a third attempt at using bankruptcy proceedings to resolve the litigation – a strategy that was ultimately rejected by the federal courts and that forced the company to negotiate a resolution through the conventional tort system after years of legal manoeuvring that had cost the company significantly in both financial resources and reputational terms. The settlement, if approved by the bankruptcy court overseeing the process, would represent one of the largest product liability settlements in US corporate history.

The litigation against Johnson and Johnson over its talc products began in earnest around 2016, when a series of jury verdicts awarding substantial damages to plaintiffs who claimed that the company’s flagship Johnson’s Baby Powder had caused their ovarian cancer generated both significant media coverage and a wave of new claims from plaintiffs with similar allegations. At the peak of the litigation, Johnson and Johnson faced claims from more than 100,000 plaintiffs, and the company’s legal liability was sufficiently uncertain that the company took the extraordinary step of placing its talc liability subsidiary – renamed LTL Management Company – into bankruptcy in 2021 in an attempt to use the bankruptcy process to achieve a global resolution of the claims at a cost substantially below what jury verdicts in the tort system might produce. The bankruptcy strategy, known as the ‘Texas Two-Step,’ was challenged by the plaintiffs’ attorneys and was ultimately rejected by the Third Circuit Court of Appeals, which ruled that LTL was not in financial distress sufficient to justify bankruptcy protection and dismissed the case.

What the Settlement Covers

• The $9 billion settlement covers approximately 62,000 current claimants with ovarian cancer and mesothelioma claims related to Johnson and Johnson talc products. The settlement does not resolve claims from individuals who have not yet filed.
• Payment will be distributed over 25 years, with an initial payment of approximately $2 billion upon court approval of the settlement and subsequent annual payments structured to reflect the timing of diagnosed cases and the age of claimants.
• Individual plaintiff payments will vary based on factors including the specific cancer diagnosis, the duration and intensity of talc product use alleged, the age and health status of the claimant and the assessment of individual case strength by the claims administrators appointed under the settlement agreement.
• Claimants who accept the settlement release all current and future claims against Johnson and Johnson related to talc product exposure, including claims for punitive damages that several juries had previously awarded in individual trials.
• Johnson and Johnson has not admitted liability for any plaintiff’s cancer as part of the settlement, maintaining its position that its talc products were safe and did not contain asbestos at levels sufficient to cause cancer – a position that is consistent with the company’s conduct throughout the litigation but that has been directly contradicted by jury findings in multiple individual cases that went to trial.

The Science: What Do We Know About Talc and Cancer?

The scientific evidence on whether cosmetic talc causes ovarian cancer or mesothelioma has been the subject of extensive research and significant disagreement among scientists, regulatory agencies and the courts throughout the litigation. The International Agency for Research on Cancer classified cosmetic talcum powder applied to the female genital area as ‘possibly carcinogenic’ (Group 2B), a designation that indicates limited evidence of carcinogenicity in humans but insufficient evidence to establish a definitive causal link. The World Health Organization has not classified cosmetic talc as a carcinogen. The FDA has repeatedly examined the evidence and concluded that it is insufficient to establish a causal link between cosmetic talc use and ovarian cancer while simultaneously taking steps to address the potential asbestos contamination issue in cosmetic talc products.

The asbestos contamination question – which is distinct from the question of whether talc itself causes cancer – has been the subject of contested scientific findings, with some analyses of the talc supply used in Johnson and Johnson products detecting traces of asbestos and others finding no contamination. Asbestos is a well-established human carcinogen, and mesothelioma – a specific cancer of the lining of the lungs and abdomen – is causally associated with asbestos exposure. The company’s internal documents produced in discovery, which showed internal discussions about the quality and contamination of its talc supply dating back to the 1970s, were among the most damaging evidence the plaintiffs produced in individual trials and contributed substantially to the large jury verdicts that preceded the settlement.

For Current and Potential Claimants

For individuals who believe they may have claims related to Johnson and Johnson talc products, the settlement announcement creates time-sensitive considerations that make consulting with an attorney as soon as possible important. The settlement as currently structured covers approximately 62,000 existing claimants, and the process for individuals who may have future claims – those who have been exposed to the products but have not yet received a cancer diagnosis, or those who develop cancer in the future – has not yet been fully established. The bankruptcy court proceeding that is overseeing the settlement approval process will address these questions, but the specific terms applicable to different categories of claimants will not be fully clear until the settlement receives court approval.

Plaintiffs’ attorneys who specialise in talc litigation have noted that the per-claimant value of the settlement, averaged across all 62,000 plaintiffs, works out to approximately $145,000 before attorneys’ fees and before allocation adjustments that will direct higher payments to claimants with the most severe diagnoses and the strongest cases. This average figure significantly understates the range of individual outcomes, which will vary from tens of thousands of dollars for claimants with weaker cases or less severe diagnoses to potentially several hundred thousand dollars for claimants with strong evidence and severe cancer diagnoses. The claims administration process will determine individual allocations, and the specific methodology used in that process – which has not yet been publicly detailed – will be one of the most important factors determining whether individual claimants find the settlement satisfactory or choose to opt out and pursue independent litigation, a right that is typically preserved in major mass tort settlements.