Will Johnson & Johnson Be Hit With Punitive Damages over Asbestos-Contaminated Talc?

Accused of failing to warn customers of asbestos-contamination in their talc-products, Johnson&Johnson is facing the possibility of punitive damages to punish wrongdoing.

Mostly to protect future generations of women and other victims, Johhnson & Johnson should be hit with punitive damages over asbestos-contaminated talcum powder. The pharmaceutical giant may or may not pay these damages, largely depending on whether a federal judge approves its controversial bankruptcy plan. 

Asbestos is one of the most toxic materials on earth. Inhaled microscopic fibers often cause mesothelioma lung cancer, a particularly nasty form of a very nasty disease. Swallowed fibers often cause digestive tract cancer, and absorbed fibers often cause other kinds of cancer. Other asbestos exposure diseases, which are just as nasty as cancer, include asbestosis and pleural thickening.

When a victim reaches out to an asbestos exposure lawyer, the entire team quickly gets to work. This team includes medical professionals who accurately diagnose asbestos-related illnesses, giving victims the best possible chance to live a longer life. An asbestos exposure lawyer also quickly pinpoints the likely contamination source and brings appropriate legal action against that polluting company.

Punitive Damages: A Primer

Briefly, courts award punitive damages if the plaintiff proves, by clear and convincing evidence, that the defendant intentionally disregarded a known risk. Both the burden of proof and the legal standard are a step above ordinary negligence or product liability cases. The burden of proof in these matters is a preponderance of evidence (more likely than not) and the legal standard is a lack of care, at least in most cases.

Punitive damages are also controversial, as one of the most famous (or infamous) punitive damage cases clearly shows.

We’re talking about the 1994 McDonald’s hot coffee case. Approximately two years earlier, 79-year-old Stella Liebeck spilled a cup of hot coffee on herself. Many people, especially many business groups, were aghast when jurors ordered the fast-food giant to pay $2.7 million in punitive damages.

Are punitive damages appropriate if Johnson & Johnson did what they’re accused of?

A closer look at the facts shows that the punitive damages award was clearly appropriate. Ms. Liebeck spent eight days in a hospital undergoing skin grafts and other radical, painful treatments for third-degree burns to her pelvic region. Additionally, according to court documents, the coffee temperature was approximately 190 degrees, much higher than the service temperature at other fast-food restaurants.

Perhaps most significantly, again according to evidence presented at trial, McDonalds had received, and ignored, about seven hundred complaints about the coffee’s temperature.

As for the punitive damages themselves, $2.7 million was two days of coffee sales for McDonald’s. Most people would consider that formula to be a reasonable amount of punitive damages.

Talc-Asbestos: A Primer

The Liebeck case offers two punitive damages lessons. First, the defendant must intentionally disregard a known risk, as mentioned above. Second, the damages must be large enough to get the defendant’s attention and change its ways, but contrary to the name, they must not unfairly punish the defendant.

As outlined below, Johnson & Johnson talc-asbestos cross-contamination checks both these boxes. But first, a bit of background.

Talc and Asbestos form under similar geological conditions and often contaminate one another.

Talc and asbestos are somewhat similar to salt and pepper. Salt and pepper closely resemble each other chemically, and they’re always side-by-side on the dining room table. Talc and asbestos are chemically similar. As a result, talc mines are usually very close to asbestos mines. In fact, more often than not, talc and asbestos mines overlap.

Diligent quality control practices during the manufacturing process usually ensure that salt never gets into the pepper shaker, and vice versa. Alas, Johnson & Johnson’s quality control practices were lackluster, at best.

Now, to the point. Johnson & Johnson ignored a known risk. As early as the 1970s, but certainly by the 1980s, Johnson & Johnson executives knew the company’s talcum powder was laced with asbestos. But the company sat on its hands. In other words, every bottle of talcum powder that hit the shelves after 1985 is evidence of the company’s intentional disregard of a known risk.

As for proportionality, Johnson & Johnson earned $88 billion in 2024. Against this background, $30 million in punitive damages (the amount a South Carolina jury ordered the company to pay in 2024) for a single incident is a reasonable amount of punitive damages. That’s akin to about $5,000 in punitive damages to the rest of us. That sum isn’t crazy excessive, but it’s definitely enough to make us think twice about our conduct.

Johnson & Johnson Litigation

Most Johnson & Johnson talc-asbestos cases (58,206 to be precise) have been consolidated in a single multi-district litigation action. MDL is basically a hybrid between individual cases and class-action cases. MDLs usually feature matters, like the talc-asbestos litigation, that are too dissimilar to qualify as class actions, but far too numerous for courts to handle piecemeal.

MDLs include bellwether trials. These trials allow plaintiffs and defendants to test their evidence and legal arguments in front of a live, studio audience. Most of the roughly half-dozen bellwether trials held so far have resulted in plaintiff wins. Most victims have received about $20 million in compensatory damages for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. The company has floated the idea of an $8 billion settlement.

Let’s do a little math to determine if the proposed MDL settlement would result in a reasonable amount of punitive damages. $20 million multiplied by 59,000 is about $1.2 billion. So, under the terms of the proposed settlement, the company would pay roughly $6 billion in punitive damages (MDL settlements usually include administrative and other fees in addition to damages) spread across 59,000 cases.

Is $6 billion a reasonable amount of punitive damages, under the Liebeck formula, considering this amount is basically punitive damages for 59,000 victims? We’d say yes, and most people would probably agree. $6 billion is an awfully big check, but it’s hardly enough to force a multinational company into bankruptcy.

Speaking of bankruptcy, all punitive damages bets are off if a court approves the company’s controversial bankruptcy plan. If that happens, the court will likely order Johnson & Johnson to set up a victim compensation fund. However, since these proceedings aren’t court proceedings, punitive damages are usually unavailable in VCF claims.