The title of this post comes from the tag line used in advertising on TV and elsewhere by a major chemical company in days past. In this post I am going to examine two cases where juries have awarded large sums of money to plaintiffs as a result of grievous harm caused by chemicals. Mostly I want to fill in many of the gaps commonly found in press coverage of these cases. I am going to start with Roundup.
"Roundup" is the brand name commonly used in conjunction with products containing, or designed to be used in association with, a chemical called Glyphosate. It is a chemical developed and copyrighted by Monsanto in the early '70s. Glyphosate is one of many herbicides, chemicals designed to kill weeds. To be effective, herbicides must be powerful chemicals. That means they are dangerous.
The idea is to create a chemical that it tightly targeted. It kills what it is supposed to kill. It does no harm to anything else. One major problem trying to pull this off is that there are a lot of different types of weeds. What is a weed after all? Actually, it's a plant that people don't like. That's pretty unhelpful when it comes to developing something that kills all kinds of weeds and leaves everything else alone.
But one of its primary uses is in conjunction with food crops. People have been modifying food crops for thousands of years. And what they have done is modify the crop so that it produces lots of edible parts and not so much inedible parts. That makes food crops weird. And that gives pesticide developers a way in. Weeds just want to "be fruitful and multiply". They generally have very few edible parts and lots of inedible parts. Pesticides like Roundup are designed to go after these "high percentage of inedible parts" plants.
And in the beginning Roundup was just one of many pesticides. It seemed to work a little better than lots of other ones. It seemed to be a little safer than lots of other ones. But it didn't really stand out from the crowd. And that meant Monsanto was only able to secure a relatively small slice of the pesticide market.
Then Monsanto came up with a brilliant idea. They could genetically modify food crops. Unmodified crops only felt effects from Roundup to a small extent. The modified crops felt no effect at all from Roundup. That gave Roundup a tremendous advantage.
You could spray Roundup right on your crops and they would be just fine. Weeds, however, would get wiped out. This reduced the cost of using Roundup compared to other pesticides because it was easier to apply and you needed less of it.
Monsanto was soon making money hand over fist. The made money selling Roundup. They also made money selling "Roundup Ready" seed. And they carefully engineered things so that farmers had to buy fresh seed every year.
For a long time the knock on all this was the fact that the crops had been genetically modified. There was lots of talk about "franken-food". All kinds of other horrible things were supposed to happen. Especially if the genetically modified crops escaped into the wild.
But they did reduce costs to farmers and Monsanto mounted a marketing campaign that, while not being completely effective, was effective enough that "GMO" (Genetically Modified Organism) crops came into widespread use. And generally the bad things that were predicted to happen as a result of the genetic modification failed to materialize. In fact, one bad thing that Monsanto figured would happen, didn't.
Weeds are very adaptable. Whatever we do to get rid of them seems to only work for a while. Then they somehow find a way to get around it and things end up as bad or worse than they originally were. And that's what Monsanto thought would happen. They thought that Roundup would eventually lose its effectiveness because weeds would find some way to change that would render them impervious to Roundup.
Monsanto figured they had a practical but expensive method of dealing with that eventuality. When Roundup eventually became ineffective they would just introduce a new generation pesticide. They would also simultaneously introduce a new generation of genetically modified crops. This new generation would be impervious to "son of Roundup", whatever that turned out to be. It would be expensive but by continuing to have a new countermove ready they could stay ahead of weeds indefinitely.
But Roundup has been in use for forty years and in heavy use for something like thirty years. So far weeds have not figured out how to beat it. So Monsanto has not had to go to the expense and trouble of developing and rolling out second generation products. No one was more surprised by this development than Monsanto.
Almost from the very beginning various groups and individuals sued Monsanto over Roundup and "Roundup Ready" seeds. All of these suits revolved around the "harms" GMO crops represented. Or actually, "were likely to" or "could" or "might" represent. But none of these predicted harms ever came to pass. It was touch and go in the early years but Monsanto was able to successfully defend itself against these suits, roll out their products, and make bails of money. What could possibly go wrong?
Recently something has gone wrong. And it came from an unexpected (to Monsanto) direction. In August of 2018 Dewayne Johnson (no -- not "The Rock" -- another guy with the same name) won a lawsuit against Monsanto. And the jury decided the company should fork over $289 million. The difference was that Johnson's suit had nothing to do with GMO or frankenfood or any of that stuff. Instead Johnson claimed Roundup had given him cancer. Johnson was a groundskeeper. He had routinely sprayed Roundup all over the place as part of his job.
An appeals court later reduced the payout to $78 million but that's still a lot of money. And even if his lawyer was working on a "contingency fee" of 20% (it is frequently a much higher percentage), that's close to $16 million. That's enough money to tempt other lawyers to follow the now established template. So you will now find lots of "call the law firm of . . ." TV commercials trolling for people who can credibly claim to have been exposed to substantial amounts of Roundup in the past and are currently suffering from some form of cancer.
So what do I think of this? Let's start with the science. There isn't any. There are no scientific studies indicating that Roundup does or does not cause cancer at high exposure levels. There are lots of things that might cause cancer and there is a limited amount of money to fund these kinds of studies. No one has funded a decent study designed to determine whether Roundup at high levels of exposure does or doesn't cause cancer.
Well, is it likely? There is not enough information to say. But, as I observed above, herbicides are strong chemicals. So it is reasonable to think that a herbicide might cause cancer. What we do know, however, is that the small amounts of Roundup that most people are exposed to should see little or no increase in their chances of getting cancer. As to people like Mr. Johnson who are exposed to a lot of Roundup, that's an open question. Careful study might yield a "yes" answer. But it also might yield a "no" answer.
In the meantime, Monsanto was sold to Bayer, the giant German chemical conglomerate. As part of the deal Monsanto told Bayer "these law suits don't amount to anything and can be ignored". That was true during the frankenfood/GMO era. It remains to be seen how things will turn out in the cancer era. Don't be surprised if Bayer starts funding studies But it will be years before the results are in. In the mean time we'll just have to watch and wait.
And the whole litigation history of silicon breast implants provides guidance. I went into a lot of detail here: http://sigma5.blogspot.com/2017/03/fake-boobs.html. But the bottom line is that, while scientific investigation eventually found them safe, a lot of lawsuits were lost in the mean time. And a lot of money was paid out as a result of those lawsuits. (And the FDA just forced the recall of a new design because it seems to result in a relatively small increase in medical problems.)
I didn't see the whole "Roundup causes cancer" thing coming. But, if someone had told me that studies had shown that to be true, I wouldn't have been surprised. If, on the other hand, that same person had said "Johnson's Baby Powder is dangerous stuff" I would have said "don't be ridiculous". It turns out, however, that recent lawsuits indicate that some jurors in some cases have decided that in some situations baby powder actually can be very dangerous. So what's going on?
In a word, asbestos. Baby powder is just talcum powder. Talcum powder, in turn is just talc, with perhaps some corn starch mixed in. Talc has been around forever. Johnson & Johnson has been selling Talc based products for well over a hundred years.
It is a very soft clay-like substance composed of Magnesium, Silicon, Oxygen, and Hydrogen. It is notable for being soft and inert. It doesn't do anything. It just feels soft and absorbs small amounts of moisture. In short, it gives you that "silky soft" feeling and pretty much doesn't do anything else.
Since it is the most benign of products, and since it has been around forever, what could possibly go wrong? That was certainly my feeling when I started hearing about these lawsuits. They sounded like they were completely frivolous. Johnson & Jonson, the company that makes the product, is large and rich. So, if you win, they can afford to pay and pay promptly. That's what I thought was all that was going on for a long time.
Then I learned that asbestos might be involved. Asbestos is truly nasty stuff. Under the right circumstances it can give you cancer. And some cancers caused by asbestos are truly horrible. And when it comes to asbestos and cancer the evidence is 100% solid from a scientific point of view. Here's the deal.
Asbestos is a threadlike fiber. The threads are hard. The points on the ends are sharp and have little trouble poking holes in pretty much anything. If under normal circumstances you poke your skin with one of these threads the result will be a small sharp sting. This is annoying but not life threatening. But remember this behavior. I'll be getting back to it shortly.
The long, thin, threadlike nature of asbestos makes it easy to weave it into a cloth-like form. This can be wrapped around things. That is not what makes asbestos interesting. What makes it interesting is it's thermal insulation properties and its ability to withstand high temperatures. If you wrap a cloth-like piece of woven asbestos around a heating duct or a hot pipe then it will keep the heat inside the duct or pipe so that the heat goes to where you need it and is not lost along the way.
The house I grew up in had a big "octopus" furnace. The burner was enclosed in a large round shell. Out of the top sprouted various heating ducts that went to various parts of the house. The result looked vaguely octopus-like resulting in the nickname. The furnace and ducts were all wrapped in a thin layer of asbestos cloth. And in this configuration the asbestos was completely safe. But there was a problem, a problem that took a long time to diagnose.
Long fibers of asbestos are, at worst, annoying. But asbestos is also brittle. So long fibers can easily get broken into short fibers. And those short fibers can get into the lungs of people. And specifically, asbestos fibers of a particular size can get into the alveoli. As air enters the lungs it travels down smaller and smaller passageways. This trip ends in small sacs called alveoli.
This is where the real work of the lung happens. On the inside of the wall of the alveoli is a little sac of air. On the outside of the wall of the alveoli a blood vessel. Oxygen moves through the wall from the sac to the blood. Carbon dioxide moves through the wall from the blood to the sac. An inhale pushes fresh air into the alveoli. An exhale pushes stale air out of the alveoli.
If asbestos gets into the lung what happens depends on how long the asbestos fiber is. If it is a long fiber then it gets stuck in one of the relatively large air passages. This is annoying in the same way it would be if an asbestos fiber poked a hole in your skin. If the fiber is very small it just floats around like a spec of dust and nothing bad happens. But if it is small enough to get into an alveoli but still big enough to poke a hole in the wall of the alveoli then bad things happen.
The lung has a zillion alveoli. So damaging a few makes no significant difference. But if enough of them get damaged you start running into trouble. This happened to my mother. Late in her life she had a lot of trouble getting enough oxygen into her blood because a relatively high percentage of her alveoli had been damaged. That's bad but it is possible for things to get way worse.
Besides damaging alveoli asbestos can cause cancer, specifically lung cancer. That's really bad. My mother lived to the rip old age of ninety-five. At the end she had a lot of problems. Fortunately for her, her list of problems did not include lung cancer. So she passed away peacefully after a long full life.
A lot of research was done on asbestos to determine if it caused cancer, specifically lung cancer. This was because the law suits related to asbestos and lung cancer dragged on for decades and a whole lot of money was involved. The firm scientific conclusion that eventually emerged was that asbestos caused lung cancer. But we now know cancer is cancer. If something can cause one type of cancer it can cause other types too.
But remember this is a probabilistic result. What asbestos actually does is increase the likelihood that you will get cancer. Some people who are exposed to a lot of asbestos don't get cancer. Some people who are exposed to only a little asbestos get cancer. It's not one of those "if you drink a large dose of cyanide you will surely die" things.
And there is the whole business about particle size. It is impossible to accurately calculate the quantity of particles of exactly the right size a person has been exposed to over his or her lifetime. There are also other factors that contribute to whether or not a specific person does or doesn't get cancer as a result of asbestos exposure.
Now let me dispose of a red herring the asbestos industry threw up as part of their defense. Asbestos is a single very specific mineral. But it is part of a family of minerals. Each one is technically a different mineral because each has a different unique chemical formula.
But all of the minerals in this class behave effectively the same when it comes to cancer. They share the physical characteristics of asbestos. As far as we know they all have a similar effect on cancer probabilities. So the common perception that "if it looks like asbestos it is asbestos" is technically wrong but correct, from a practical point of view.
That didn't stop companies from arguing in court that their specific product technically wasn't asbestos. It was this similar mineral but not the same mineral. And, since the law suit specifically said "asbestos" they should be let off because their product was not asbestos. The courts and juries didn't buy this line of defense. They just decided the companies were being weaselly and that justified giving the plaintiff even more money.
Anyhow, for our purposes it is important to understand that it is well established that asbestos causes cancer. And the plaintiffs in the first successful suit claimed that was what was going on. Johnson's Baby Powder contained a small amount of asbestos. All of a sudden the argument the plaintiff was making made perfect sense to me. I had trouble with the whole idea that talc caused cancer. I had no problem at all with the idea that asbestos caused cancer.
The first of the lawsuits Johnson & Johnson lost involved a woman who had used a lot of Johnson's Baby Powder over a long period of time. She died of ovarian cancer and her family sued. They claimed that asbestos in the baby powder she frequently applied to her crotch area had somehow traveled all the way from there to her ovaries. There it had caused the ovarian cancer that killed her. Ovarian cancer is really nasty stuff. The jury in that case awarded her heirs $72 million. I believe the case is still being appealed.
Even so, that was enough to open the floodgates. We are now also bombarded with commercials asking us if we have used Johnson's Baby Powder and are now dealing with cancer. So far, various law firms have convinced more than 11,000 people to take them up on their offer of help. Needless to say, this has had a negative impact on Johnson & Johnson's share price.
And a contributing factor in both suits has been allegations of bad behavior on the part of the company. In the case of Monsanto their supposed sin was that they didn't sufficiently warn people who used Roundup in large quantities that Roundup might give them cancer. Monsanto argued that, since it doesn't cause cancer, they had no duty to warn.
The science currently supports that line of argument. But it has so far not been persuasive to jurors. Similar arguments, which turned out to be correct, were similarly unpersuasive to jurors in silicon breast implant cases a decade or so ago. Only time will tell us how this difference of opinion over whether Roundup is carcinogenic or not will eventually shake out.
In the case of Johnson & Johnson, the company has argued that there is no asbestos in its product. The problem with this argument is that there is a substantial amount of evidence dating back decades that says asbestos is a common contaminant found in many talc mines. How much asbestos? Not much. How thorough was the testing? Not very.
But it is obvious that it has always been in the interest of Johnson & Johnson to suppress evidence of asbestos contamination. And for a long time Johnson & Johnson knew or should have known that asbestos contamination was a serious possibility. Prudence would have dictated that they check for it frequently and carefully. Apparently, this was not done.
So, while the case for asbestos contamination is not open and shut, there is a lot of evidence in favor of it out there. Here too only time will tell. But, if I were a betting man, I would bet against Johnson & Johnson on this one.
I haven't completely proved or disproved anything here. I do hope, however, that I have provided a more complete picture of what's going on and what is known and what isn't. The only thing I know for sure is that a lot of lawyers are going to make a lot of money working on one side or the other of these cases.
And maybe you now find chemistry more interesting. It's not all confusing formulas scribbled on dusty blackboards. Sometimes it's a matter or life and death.
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