What should we think when a corporate-funded lobbying group places our local courts at the very top of its annual “Judicial Hellholes” list? That was the message last month from the American Tort Reform Association, a group funded by large tobacco, pharmaceutical, insurance, energy and chemical corporations.
With a page straight from Big Tobacco’s playbook, the ATRA is deliberately ignoring difficult facts and is trashing our courts through a negative public relations campaign to change the rules of our courts and shield its corporate funders from responsibility. Don’t be fooled; there is no methodology behind the “Hellhole” list. St. Louis and every other court deemed a “Judicial Hellhole” are singled out for one reason only — these are courts in which citizen jurors have found big corporations liable for dangerous products and practices.
Our city drew the attention of this big-business cheerleader based on three recent verdicts against Johnson & Johnson. In each of these trials, jurors considered three weeks of testimony before concluding that Johnson & Johnson had ignored dozens of published medical and scientific studies and decades of mounting evidence highlighting links between genital application of talcum powder by women and ovarian cancer. These juries punished Johnson & Johnson for a culture that places profit over safety.
Thanks to the central location and efficiency of our courts, dying women have been given a voice. Our juries have seen documents that Johnson & Johnson would prefer to keep hidden, including a 1974 letter to the U.S. Food & Drug Administration in which the corporation pledged to discontinue talc products if any scientific studies revealed questions about talc’s safety. Shamefully, those products remain available despite a raft of studies and meta-studies that have drawn lines from talc use to ovarian cancer. Johnson & Johnson’s own toxicologist wrote in 1994, “Anybody who denies (the published research) risks that the talc industry will be perceived by the public like it perceives the cigarette industry: denying the obvious in the face of all evidence to the contrary.”
St. Louis juries were no doubt alarmed to learn how Johnson & Johnson aggressively marketed its talc products to African-American and Hispanic women even after these safety concerns became apparent. They even heard from a Johnson & Johnson whistleblower who testified that supervisors instructed her to alter hundreds of Adverse Event Reports, which the FDA often relies upon to monitor product safety issues.
Naysayers and corporate lobbyists now shout “junk science” only because scientific research from some of the most respected scientists and medical experts in the world doesn’t agree with the bottom line and because they want our lawmakers to change the legal rules to their benefit.
Rather than respecting our civil justice system — a uniquely American institution consecrated in the Seventh Amendment of the U.S. Constitution — Johnson & Johnson and the ATRA are trying to dodge responsibility with a massive negative PR campaign. Their embrace of the term “junk science” comes straight from Big Tobacco’s unsuccessful attempts in the 1970s to polarize debate and discredit the scientific evidence linking tobacco to cancer. They’d prefer to take these women out of court and to closed-door arbitration, where the cards are stacked against individuals and any testimony and results are hidden from the public.
Use of the term “Hellhole” ignores the plight of those truly going through hell — the 24,000 women diagnosed with ovarian cancer in the U.S. every year, as well as the families of approximately 14,000 women who die from the disease annually. A 1999 Harvard study concludes that banning talc use would reduce the number by at least 10 percent.
I’ve been trying cases in St. Louis courts for more than 30 years, and I’ve seen first-hand how our jurors take their work seriously and do their best to get it right. Maybe these pro-business lobbyists should visit St. Louis and sit through a monthlong trial before making such a baseless claim. The group would find a diverse and business-friendly city that inspires startups. And perhaps they would get a better, more accurate answer to their question.
Roger Denton is a St. Louis attorney. He is not involved in the litigation against Johnson & Johnson.