Industry News

Product Liability: Johnson & Johnson’s Talcum Powder Lawsuit

Feature Image: Getty Images

Read below as our product liability expert, Melita Thurling gives comment on the recent Bloomberg article, regarding the lawsuit against J&J claiming that a group of women developed ovarian cancer as a result of exposure to talcum powder, sold in the form of Johnson’s Baby Powder.

Read the Full Article: Johnson & Johnson’s to Pay $2.1 Billion Talc Award as Top Court Nixes Appeal.

This case highlights a couple of interesting aspects:

It was the asbestos that caused the cancers as it was present where the talc was mined. It contaminated the talc and caused the harm. Insurance policies typically have a general exclusion for asbestos because of its carcinogenic nature, and the past litigation arising from asbestosis. So, although the product itself was not asbestos or a by – product of asbestos, the contaminant may prove to be a challenge for a claim under an insurance policy.

Product liability in particular lends itself to the possibility of a class action and these may well become a more regular feature in SA and an issue for SA insurers. A defective popular product may cause widespread harm, which is why the cover for product liability is given on an annual aggregate basis rather than a limit for each and every claim (the exposure for an insurer would be too great)

Punitive damages are not given by our courts although the Constitutional Court has awarded constitutional damages which may go beyond a pure indemnity. Insurance policies exclude punitive damages and may or may not exclude constitutional damages depending on their wording.

Generally punitive damages are excessive and are a foreign concept for South Africans. However, in this instance where there seems to have been a complete disregard for the safety of consumers even after J&J was aware of the dangers, one has some sympathy for the award.

The fact that J&J did not take reasonable steps to rectify the harm and knowingly and deliberately continued to market the talc may also have led to insurers failing to cover the claims.

 

Author: Melita Thurling.

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