Are Global Settlements On the Way for Johnson & Johnson Talcum Powder Lawsuits?

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Talcum powder lawsuit graphic with Bryant Law Center attorney Emily Rourke

It is possible that a global settlement is under consideration for some or all of the estimated 20,000 ovarian cancer talc lawsuits pending in a consolidated federal multidistrict litigation panel in New Jersey.

Many news organizations reported in February of 2021 that Johnson & Johnson has set aside a $4 billion fund to resolve the claims. In 2020, there were press accounts of a reported settlement between Johnson & Johnson and plaintiffs last year in 1,000 cases. That settlement has not been confirmed by either side.

With this in mind, as well as a few other factors, it may be likely that global settlements are on the way for Johnson & Johnson talcum powder lawsuits. In this article, we’ll take a look at the current status of many of these cases and consider if there are indications that settlements are a possibility.

What is a Global Settlement?

A global settlement is a set of legal developments where defendants and attorneys for plaintiffs in a large group of similar lawsuits reach an all-encompassing agreement to settle hundreds or even thousands of pending cases.

The global settlement will be based on an agreed upon framework or template that was produced after months or even years of negotiations.

Simply stated, all participating parties will agree on language and terms that will bring about an end to the lawsuits. That means that the plaintiffs and their attorneys agree to settle their claims in exchange for an agreed upon financial payment.

For talcum powder cases what this means is that there will be a framework in place to determine the type of payments made to plaintiffs who contracted ovarian cancer after using J&J products. This agreement would conclude the lawsuits and set up a way for Johnson & Johnson to compensate the plaintiffs involved in the settlement.

A global settlement resolves all the pending cases, except those few who elect to opt out or decline to participate. Usually that number is just a small fraction of plaintiffs.

Global settlements are good for the defendant because, in one agreement, they can resolve all of the pending cases.

It is good for the plaintiffs in that it affects how long a talcum powder lawsuit could take. Plaintiffs in a global settlement do not have to wait for piecemeal settlements or additional trials of bellwether cases which could add years before settlements are reached.

Talc Cases Have Been Consolidated into a Multi-District Litigation in New Jersey

Another element that may indicate that a global settlement to pending talc cases could happen is that most of the active lawsuits have now been consolidated into a multi-district litigation (MDL). As more cases are added to the MDL panel’s docket, a defendant may become more likely to settle.

The MDL for about 20,000 current talc cases is in New Jersey. Even if you signed your case up with an attorney in another state, all of the cases will be moved to the New Jersey Court for pre-trial motions and discovery.

What is a Multi-District Litigation?

Multi district litigation is a process adopted by the federal court system to process large numbers of pending lawsuits by having the pre-trial motions and discovery process for all cases of a similar type handled by one judge in one court.

Having all of the cases in one location creates the optimal framework for attorneys for both sides to gather and collectively negotiate a settlement.

Although the cases are consolidated into one court, keep in mind that these are not not class action suits. A multi-district litigation’s purpose is to promote judicial economy by having a centralized clerk and staffing to keep all parties from having to go all over the county into dozens of jurisdictions to file paperwork.

MDL’s have also become a framework for helping to reach settlements in large numbers of cases with similar or identical claims.

Bellwether Trials Can Lead to Settlements

When there are large numbers of identical or very similar claims that have been moved to a central location as an MDL, the plaintiffs and defendants will often agree to try a few representative, or bellwether, cases before a jury. A bellwether trial can also be viewed as a proxy trial.

The plaintiffs and defendants counsel will agree to select an equal number of plaintiffs (or groups of plaintiffs) to go into a pool. From that pool of possibly 1000 people, possibly 30 to 40 cases will be heard in a full fledged trial. Competing legal teams will each try to select plaintiffs which they feel will give an outcome most favorable to their positions but the actual selection for the trials will be blind.

These actual trials are called bellwether, test, proxy or representative cases because each side will be able to see the jury outcomes, whether any punitive damages were awarded, and opposing counsel’s legal strategies. It could also start the framework for a global settlement to resolve all of the cases.

In a majority of talc proxy trials, outcomes are favorable for the plaintiffs but sometimes they are in favor of the defense.

When and if the jury awards large financial verdicts, it will allow both sides to plan ahead for a settlement or to alter legal strategies in any future bellwether trials to obtain the favored outcome. In other words, the test cases can help both the defendants and plaintiffs determine how much a global settlement would be worth.

What Would a Global Settlement Look Like in Talcum Powder Cases?

Johnson & Johnson could be looking at legal and settlement costs of between $5 to $9 billion. As for individual payments, the company last year reportedly settled 1,000 cases for $100 million, a settlement amount for individuals that was $100,000 each. CNBC reported that the average settlement thus far for talc cases is about $280,000 per plaintiff.

The exact nature of a global settlement between talc manufacturers like Johnson & Johnson and ovarian cancer victims depends largely on the negotiations between attorneys for both the plaintiffs and defendants and upon the outcome of bellwether trials.

Both sides will have access to outcomes from previous talc trials, some of which returned large verdicts for the plaintiffs and others where the defense has won favorable verdicts in some bellwether trials. These are called proxy or bellwether trials.

In negotiating a settlement, both sides will look at the outcomes of these cases to gauge how much each case could be valued at. At one point, plaintiffs had won 12 trials and the defendants had prevailed in 10. These outcomes will determine the amount of compensation per case and the terms for agreeing to and paying out that compensation.

Plaintiffs may receive their settlement checks through their attorney or directly from Johnson and Johnson or a third party administrator, depending on how the company arranges for plaintiffs’ attorneys to be compensated.

However, there are other factors which could play into a global settlement. The defense may insist that a large percentage of plaintiffs would have to agree to the settlement beforehand. Defendants want protections that there will not be years of additional litigation from holdouts once a global settlement is proposed and accepted.

The defense legal team wants to assure there will be a wide acceptance by polling the plaintiffs. A broad resolution is one of the defendants’ primary objectives. It also sets the stage for further negotiations with any groups of holdouts.

And for both sides, a global settlement can put a brake on legal costs. Both sides likely will have dozens of lawyers and many more support staff working on the case. With outside defense attorneys making upwards of $300 an hour on a major case, legal costs can soar as a major case drags on and can add another reason to seek a settlement.

A settlement also may give the defendants more control over the settlement such as not admitting any liability, without risking what a judge or jury might award.

Because of the enormous costs for plaintiffs who are pursuing a medical / heal damage settlement or verdict, it is also possible that the plaintiffs secured outside financing to assist in hiring numerous experts and to cover marketing, transportation and support costs associated with the case.

Another issue to keep focus on a settlement may be the financial condition of the defendants.

Already, one mining company that sold talc to J&J, Imerys Talc America Inc., has filed for Chapter 11 Bankruptcy Protection. Experts have speculated that any claims Imerys, a subsidiary of a French company, would have been forced to pay will be reduced by 95 percent.

Are There Other Indications that Settlements May Happen Soon?

Aside from the recent press report that Johnson & Johnson has set aside $4 billion to resolve the pending talc cases, the company has been handed some large verdicts in favor of the plaintiffs in talc cases, including one for $2.2 billion including punitive damages that was upheld by an appellate court in Missouri.

The fact that Johnson & Johnson was aware of potential dangers posed by talc use and did not share that with consumers could leave the company open to arguments to seek punitive damages, if the company chose to try the cases in the MDL group.

Many of these talcum powder verdicts have been handed down with punitive damages. The price tag placed on punitive damages can sometimes be significantly higher than the economic and non-economic damages in many case

Reuters news service reported in October of 2020 that Johnson & Johnson had agreed to settle 1,000 pending talc cases for $100 million. That development followed a decision by J & J to no longer market talc products in the US. There are also reports within the past month that J & J has set aside $4 billion for a settlement.

Statistically Between 60% and 90% of personal injury and tort lawsuits reach a settlement in the court to which they are transferred, according to law researchers at Cornell University but each case and set of legal circumstances is different. Settlement can also include a dismissal on legal grounds without any payment.

How a Talcum Powder Lawsuit Attorney Can Help You

A Bryant Law Center attorney will be available for a no-cost evaluation of your legal options from talcum powder use.

The attorneys will have your medical records evaluated by an expert and they will also take a detailed personal and occupational history to determine if your case meets the requirements to be included in the multi-district litigation case.

If you think you or a loved one or family member may have used talcum powder and developed ovarian cancers as a result, it is important to contact an attorney at The Bryant Law Center as soon as possible. Our talcum powder attorneys will monitor your case in the MDL and will update you on its progress.

Time is of the essence since there are reports that Johnson & Johnson may be preparing to reach a global settlement.

Any delay in filing your case could cause it to fall outside of the case deadlines and exclude claims that could otherwise be eligible. Filing your case in a timely manner also ensures that your case falls within the statute of limitations.

Contact us today using the form on this page for a free consultation to learn more how one of our experienced attorneys could help you.

Choosing a “clients first” firm like The Bryant Law Center ensures you will always have access to your case manager or attorney if you have questions. Your phone calls will be promptly returned and you will be updated on any major developments in your case.

Mark Bryant
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