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Johnson & Johnson to pay $71m in Compensation – Could they be held liable under UK law?

by Emma Flood Curated Media on March 9, 2016

Household name Johnson & Johnson have been ordered to pay $71m (around £51m) in compensation to the family of a woman who suffered from ovarian cancer, allegedly as a result of using Johnson & Johnson products. However, a number of legal commentators have stated that the case simply wouldn’t hold up in the UK courts, under the UK legal system or under UK personal injury law. This post looks at the key differences between the US and UK systems in relation to this case, to understand whether Johnson & Johnson could face similar claims in the UK.

Hogans et al v. Johnson & Johnson et al (Hogans et al v. Johnson & Johnson et al, Circuit Court of the City of St. Louis, Missouri, No. 1422-CC09012)

The case concerned Mrs Fox, who passed away as a result of ovarian cancer last year. Mrs Fox allegedly had been using two Johnson & Johnson products, one of which was talcum powder, for around 35 years prior to developing ovarian cancer.

The case was heard in St. Louis, Missouri where the outcome was determined by a jury. This is one of the key factors which could affect whether the claim would be successful in the UK. The jury was convinced of the company’s liability on the grounds that they failed in their obligation to warn users of their products of the potential risks and dangers. In addition, some US manufacturers had switched from using the allegedly dangerous substance talcum, to using corn starch. Concerns about the use of talcum powder had been raised by the American Cancer Society in 1999, but many UK manufacturers still use the product and do not include a warning to users about the alleged risks.

Johnson & Johnson were ordered by the court to pay the family of Mrs Fox $10 million in compensation, and also a punitive award of $62 million.

Johnson & Johnson is now facing 1200 lawsuits in the US for failing to include such a warning. However, it is unlikely that the brand will face similar litigation in the UK for a number of reasons.

The Problem with Bringing this Case in the UK

There are a number of factors which mean that this case probably wouldn’t withstand scrutiny under the law in the UK.

Firstly, the case in St Louis was determined by a jury. It would be far more difficult for the claimant to convince a judge in the UK that the evidence supporting the claim was sufficient. This in tandem with personal injury law in the UK would make it highly unlikely that the company would face similar claims in the UK. The scientific evidence demonstrating that talc may cause cancer is practically non-existent. A number of scientists have suggested that talc particles may travel to the ovaries causing irritation and inflammation, which after a period of time could increase the risk of certain types of cancer. However, this theory has never been proven. In fact, studies observing the effect of anti-inflammatory drugs in the prevention of cancer have proven to be unsuccessful. Most of the claimant’s arguments were based on the fact that other manufacturers in the US had stopped using talc in their products.

In order to be successful in a parallel UK case, the claimant would need to prove that there was enough evidence to support the allegations that talcum powder could cause cancer. More specifically, that Johnson & Johnson’s talcum powder was, at least, a contributing factor in causing the claimant’s cancer. It also is for the claimant to prove that the company breached their duty of care towards the claimant by failing to give adequate warning about the risks of using the product. The difficulty with bringing cancer-related claims is that there are so many factors which may contribute to causing cancer. As was seen in McTear v Imperial Tobacco, proving causation in cancer claims is incredibly difficult. For these reasons, it is unlikely that Johnson & Johnson will face similar litigation in the UK.

Emma Flood Curated Media

Emma Flood Curated Media

Legal Copywriter and Legal Marketing Assistant for Personal Injury Law Firms at Curated Media
Emma Flood is a first class law graduate in the UK. Legal Content Writer and Marketing Assistant at Curated Media, Emma and the team write bespoke legal content for law firms across the UK and can help you make the most out of the Internet through effective content marketing. Visit www.curatedmedia.co.uk to find out more.
Emma Flood Curated Media

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