Some of you may have noticed this gem in your paper, your TV news or your twitter feed this morning and given it the obligatory eye roll.
$7.2 million for popcorn lung? Seriously?
Well, yes. Apparently the jury in this case was convinced that three companies were aware of the possible harm their products could do to regular consumers of their microwave popcorn and failed to properly warn those consumers of the risks.
When stories like this appear, many of us recall the 1994 McDonald’s coffee lawsuit that has been the butt of jokes and the poster child for “frivolous lawsuits” ever since. In that case, a jury awarded Stella Liebeck $2.7 million in punitive damages to the 79-year-old for a spilled cup of coffee.
Here’s what happened: She was sitting in the passenger seat of her grandson’s car with the coffee between her legs. She took the lid off to add cream and sugar, spilled the contents onto her sweatpants and burned the holy hell out of herself. In medical terms, she sustained third-degree burns that required an emergency room visit and skin grafting.
Most people don’t know or remember the bit about skin-grafting. They only remember headlines like “Jury awards 79-year-old woman $2.7 million for spilled coffee.”
As I said, the lawsuit - specifically the huge punitive damage award -became the butt of joke after joke and exhibit A in the fight against frivolous lawsuits. In the years following the award (which was later reduced), the case was referenced repeatedly to convince legislators in several states to pass limits on punitive damages in civil lawsuits.
This topic got a trial lawyer named Susan Saladoff steamed enough to switch jobs in 2009. That’s the year she started working on “Hot Coffee,” a feature-length documentary that claims that limits on jury awards in cases like Liebeck’s are the result of a well-organized corporate smear campaign designed to mislead the public and absolve companies of potential liability for wrongdoing.
I saw the movie a few months back and found it enlightening, if a bit heavy-handed and one-sided. It’s worth adding to your Netflix cue if you dig documentaries and have any interest in the law.
Saladoff parses the details of the Liebeck case to explain why the jury did what it did (namely, that McDonalds kept its coffee at dangerously high temperatures, that oodles of people had been burned and paid off by the company, that the company refused to admit wrongdoing, etc), but she also walks viewers through the basic principles of the civil justice system.
That system exists in large measure to protect regular people from the malicious or negligent actions of companies both large and small, she argues.
By this logic, the fear of civil lawsuits explains why shop owners in South Dakota sprinkle salt on icy sidewalks in the winter. We’d like to believe that human decency plays a role there, too, but any small business owner knows how much trouble they can get into if they know about ice in the parking lot and let human beings with slippery shoes, breakable bones and access to lawyers walk on it.
The other side of the coin, of course, is that large jury awards for punitive damages can drive up the cost of insurance, particularly medical malpractice insurance, and certainly drive up the cost of doing business. Saladoff addresses this issue in Hot Coffee, as well, but I’ll leave that on the table for now.
I’ve written about a few of these lawsuits during my time at the Argus. The one that stands out for me is a suit filed in federal court in 2009 by a Sioux Falls woman named Deane Berg, who claims her use of Johnson & Johnson’s talc-based baby powder caused her ovarian cancer.
That suit is still unresolved. Johnson & Johnson moved unsuccessfully to have the case dismissed in 2010, and the parties have been arguing over what can and can’t be said to a jury ever since.
Here’s the story from 2009:
Talc producers failed to note cancer link, S.D. lawsuit says
A Sioux Falls woman is accusing Johnson and Johnson and two mining companies of failing for decades to warn consumers about a link between ovarian cancer and talcum powder.
Deane Berg, 52, applied talc-based body powder to her perineum each day after showering from 1975 to 2007, she says in a federal lawsuit filed last week. She contracted ovarian cancer in 2006.
Berg maintains that talc caused her cancer and that the companies selling the mineral knew there was a risk but failed to warn the public.
“I feel like women have been kept in the dark about a known hazard,” said R. Allen Smith, Berg’s lawyer. “It’s the classic definition of why we need product liability lawsuits.”
Some studies have associated the regular use of talc in the genital area to an increased risk of ovarian cancer. The most recent came in 2008, when a study from Harvard University epidemiologist Margaret Gates suggested women who used the product once a week might increase their risk of contracting the disease by 36 percent. For daily users, the risk jumped by 41 percent.
However, some studies have suggested no association between talc use and ovarian cancer. The American Cancer Society calls the study results inconsistent but advises those with concerns to switch to cornstarch-based powders.
“While the findings aren’t considered fact just yet by the American Cancer Society, studies do cause some concern,” said Charlotte Hofer, South Dakota’s American Cancer Society representative.
Berg and her lawyers are convinced there is a link. The lawsuit, filed in U.S. District Court in South Dakota, cites studies about a possible link from as long ago as 1982. While government health agencies in countries such as Great Britain have noted the possible risk, the topic has flown under the radar in the U.S., Smith said.
He’s unaware of any other civil lawsuit against producers of talc-based products.
“This is the first case of its kind, to my knowledge,” Smith said.
Companies that market talc-based products without a warning label are guilty of negligence, the complaint alleges, as are companies that mine and market the mineral. Johnson and Johnson, mining company Luzenac America and its parent company, Rio Tinto Minerals, are named as defendants.
“My first hope is that we can protect women and make them aware of this link,” Smith said. “My second hope is that we can make the industry warn about the dangers of their products.”
The lawsuit seeks damages to pay for Berg’s two years of cancer care and emotional damages.
Johnson and Johnson representative Bonnie Jacobs wouldn’t comment on the case.
Calls to Rio Tinto’s headquarters were not returned, but the Web site for Luzenac links to a study that questions any correlation between talc and cancer risk.
The federal government’s National Cancer Institute Web site says the use of talc near the vaginal area could increase a woman’s risk of ovarian cancer. Similar warnings appear on the sites of the Illinois and New York state departments of health.
The South Dakota Department of Health’s Web site does not mention talc. Spokeswoman Barb Buhler said findings are too inconclusive to warrant a state warning.
“The studies cited are small and are suggestive but not very definitive,” Buhler said. “The exact cause of ovarian cancer isn’t clear.”
That could be a problem for Berg, according to Mark Arndt, vice president of the South Dakota Defense Lawyers Association.
Smith, a Mississippi lawyer, is working the case with Rapid City’s Gregory Eiesland and fellow Mississippian Tim Porter.
To win a judgment in a product liability lawsuit, Arndt said, they will need to do more than persuade a jury there is a scientific link between talcum powder and cancer.
“To win anything in this lawsuit, she’s going to have to prove that talcum powder caused her cancer,” Arndt said.
The lawsuit does not point to any physician’s finding, however. It cites several studies, but without testimony from a doctor who treated Berg, Arndt said, it could be difficult to show causation.
But even if Berg’s lawsuit fails for lack of conclusive data, Arndt said, there is a possibility it could focus attention on the issue and lead scientists to seek more definitive research.
The link between tobacco and cancer wasn’t always clear, he said.
“Somebody had to start the tobacco lawsuits. Somebody had to start the asbestos lawsuits,” he said. “It’s hard to just dismiss it out of hand.”