Two weeks ago, May 20th the Baltimore Post Examiner and other papers around the country reported that Johnson & Johnson will cease making its infamous baby powder secondary to thousands of legal claims that it’s iconic talc-containing baby powder causes ovarian cancer. I’m all for helping these suffering patients and their families in other ways but the scientific rational for the awards is nothing more than medical hyperbole and conjecture. That’s right, the expert witnesses and the plaintiff’s attorneys are working the legal system for billions as it did most recently when a St. Louis jury gave to 22 women 4.7 billion dollar awards in a class action lawsuit against J&J. The fact is there is no good data that conclusively proves that talc causes ovarian cancer yet plaintiff’s attorneys to continue to win cases. I’ve spent my life studying and researching ovarian cancer (OC) and I, like many of my gynecologic oncology friends, have had offers from lawyers around the US to opine for their plaintiffs with OC who had “used talc” and ultimately developed OC. After carefully reviewing their cases, I turned down the opportunity to opine because their evidence and their scientific argument were so weak that I felt morally obligated to say no. It wasn’t a difficult decision.
Ovarian carcinoma, a deadly malignancy, is diagnosed in more than 20,000 women each year in the US and killing over 14,000 every year. Although we have made strides in the treatment of ovarian cancer, we have not made proportional progress on its etiology. What we do know is this, the only convincing research done on ovarian cancer’s etiology shows that inherited genetic defects of certain tumor suppressor genes (e.g. BRCA-1, BRCA-2, HRD+) are the likely cause of some ovarian cancers but probably only about 10-15%. That’s the best research we have. We do not have those kinds of data on talc research in OC. In fact, the largest study to date., published in JAMA several months ago failed to show any association between talc and the risk of developing ovarian cancer. It was a prospective randomized trial design, coordinated by the NIH, enrolling over 250,000 women in four separate studies. That’s real data published in one of the most reputable medical journals on the planet.
So why all the big awards? Juries are at the mercy of dishonest medical experts, physicians, who peddle old, outdated, and poorly designed studies to jurors and really play havoc on their emotions. It’s easy and understandable to have compassion for the sick and dying and their families. It’s also easy as jurors to blame big, faceless, pharmaceutical companies with deep pockets. Post hoc, ergo propter hoc? Post hoc fallacy? If this, then that? It doesn’t work that way in cancer research. Does anyone remember the scientific method? This post hoc fallacy is the rational for the billions in settlements.
These huge settlements are damaging to the healthcare system and are responsible for driving up drug prices, and increasing insurance premiums for doctors, nurses, and hospitals. We all pay for it in some way if we get granular about it. The leadership of the American Medical Association, the American Bar Association (a modern version of David and Goliath) needs to get responsible and start negotiations to put a reasonable cap on the awards. Patients do need to be reimbursed for their injuries but in reasonable amounts. Expert witnesses and lawyers need to be honest and responsible to ascertain what is the truth about the potential causes of ovarian cancer presented at the testimony versus pure conjecture. It is our obligation as physicians and attorneys to remedy this. This could all be part of a “revised ACA” and help lower the cost of healthcare for everyone. So far the only one even talking about revising the ACA is Mr. Biden. I can never see a future where President Trump signs legislation to cap legal awards. It’s not in his blood.
Matthew P. Boente MD FACS, FACOG a retired gynecologic oncologist after 30+ years of clinical care and both basic science and clinical research. I was formerly the Chief of Gynecologic Oncology at the Fox Chase Cancer Center in Philadelphia and later the same position at the University of MN. Finally, I retired after working at Genentech Inc., South San Francisco as the Medical director for Gynecologic Oncology Research in 2018, after reaching my task and Avastin was FDA approved for front line ovarian cancer. His brother Dana Boente is the former acting US Attorney General and now General counsel at the FBI.