Baby Powder Mass Tort Litigation: Strong Scientific Foundation or Just a Cloud of Dust?
To first understand this subject, one needs to understand mass tort. You may have heard of a class-action lawsuit and associate the terminology with a mass tort lawsuit, but these are two separate types of cases despite implied similarities. Both types of cases involve a large number of individuals who claim to have been harmed by a common entity. The difference lies in procedurally how the plaintiffs are represented (Ashcraft and Gerel, LLP, n.d.). For class-action lawsuits, a firm files the lawsuit on behalf of all of those harmed, as one plaintiff with one trial; while for mass tort lawsuits, plaintiffs are treated individually, with separate trials (Rottenstein Law Group, LLP, n.d.). To proceed as a class action lawsuit, the Court must approve the claim as dictated by Rule 23 of the Federal Rules of Civil Procedure which states that:
- the class is so numerous that joinder of all members is impracticable;
- there are questions of law or fact common to the class;
- the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
- the representative parties will fairly and adequately protect the interests of the class (Ashcraft and Gerel, LLP, n.d.).
If the Court does not approve the claim to proceed as a class action lawsuit, then the plaintiffs can individually proceed with mass tort litigation, each having their own trial in their own jurisdiction (Rottenstein Law Group, LLP, n.d.). In either case, firms may utilize mass media for advertisement to make the general public aware of possible harmful effects of a product or device. The firms may also use advertising to alert potential plaintiffs that claims are being filed, to gain more clients, and to make potential jurors aware, all in an indirect effort to gain victory.
In 2009, one of the first cases was filed, alleging that women’s genital use of talcum powder or baby powder has led to diagnoses of ovarian cancer, which in some cases, has proceeded to wrongful death.
One may ask, “how on earth can something applied to the outside of the body cause cancer in tissues located on the inside of the body?” The answers have taken years to prove, yet Cramer, Vitonis, Terry, Welch, and Titus (2016) explain that research on this very topic began back in the 1960’s, when there was the discovery that talcum powder contained asbestos—a current, well-known carcinogen (Cralley, Key, Groth, Lainhart, & Ligo, 1968; Graham & Graham, 1967). The group also explain the progression of scientific research demonstrating the link and cause of talcum/baby powder to ovarian cancers listing dozens of more studies. The literature review identifies specific risk factors and associations.
Essentially, the established facts are:
- Talc has fine particles which migrate through the vaginal canal, the cervical opening, the uterus and fallopian tubes to the ovaries, causing cellular changes predisposing a woman to cancer.
- The longer a woman has utilized genital-area application of talc (talc years), the more at-risk she is for cancer. There does not appear to be a correlation with the cornstarch variation of baby powder.
- There is an association between talc users and asthma; therefore, those who ended up with ovarian cancer also report having had a history of asthma.
- Other contributing factors point to an influence involving estrogen and/or prolactin in talc-users: pre-menopausal women, post-menopausal women who used hormone therapy, obese pre-menopausal women, and those who breastfed, currently smoke, or use alcohol.
- There seems to be a higher association among African American or Black women.
- The pathologic tissue subtypes of epithelial ovarian cancer which were more likely talc-associated, “include serous and mucinous borderline tumors and invasive serous and endometrioid tumors” (Cramer, Vitonis, Terry, Welch, & Titus, 2016, p. 345).
With mass tort litigation involving large numbers of plaintiffs, with vast medical histories and substantial medical records, it is crucial to utilize a staff which can efficiently organize, review, and analyzes the enormous associated files. It takes a group of professionals who are educated to assess and evaluate the case files for completeness, and who can perform critical thinking and analysis. The medical-legal professionals at ALN Consulting, perform this type of work, and more, every day. At ALN Consulting, we do more than help you prepare…we prepare you to win.
Ashcraft and Gerel, LLP. (n.d.). Class action vs. mass tort: a brief explanation [web page]. Retrieved from http://ashcraftandgerel.com/attorney-blogs/class-action-vs-mass-tort-a-brief-explanation/
Cralley, L. J., Key, M. M., Groth, D. H., Lainhart, W. S., & Ligo, R. M. (1968). Fibrous and mineral content of cosmetic talcum products. American Industrial Hygiene Association Journal, 29(4), 350-354.
Cramer, D. W., Vitonis, A. F., Terry, K. L., Welch, W. R. & Titus, L. J. (2016). The association between talc use and ovarian cancer: A retrospective case–control study in two US states. Epidemiology, 7(23), 334-346.
Graham, J., & Graham, R. (1967). Ovarian cancer and asbestos. Environmental Research, 1(2), 115-28.
Rottenstein Law Group, LLP. (n.d.) What is a “mass tort” [web page]. Retrieved from http://www.rotlaw.com/legal-library/mass-torts/