Last week, Johnson & Johnson announced its talcum-based powder products will no longer be sold in North American markets. The historic move has led to renewed questions about thousands of pending lawsuits against the manufacturers, in addition to concerns from consumers who have yet to file.
Victims who are experiencing the cancerous effects of talc-related exposure, or who have wrongfully died as a result of such exposure, are faced with a specific challenge in obtaining recovery for their injuries — navigating a state’s statute of limitations.
Since 2013, thousands of lawsuits have been brought against Johnson & Johnson and similar manufacturers alleging that traces of the carcinogenic mineral asbestos in their talcum-based products, such as baby powder, have caused ovarian cancer and mesothelioma in women.
Now, family members of deceased victims are learning how to file their claims within states’ traditional products liability statutes of limitations.
Each state has its own variation of a statute of limitations for products liability claims, and the typical timeline for a wrongful death action is two years. This means that the injured party only maintains the right to file a lawsuit within that specified window of time, which is dependent upon both the type of harm suffered and the state where the harm occurred.
In the cases of individuals interested in filing claims on behalf of themselves or their deceased family members, the window to assert a claim against manufacturers of cancer-causing products is not absolute.
How do statutes of limitations work in talcum powder cancer claims?
For wrongful death claims, regardless of state, the statute of limitations is “triggered” on the date of the victim’s death. This means that the statute of limitations clock starts ticking on the date of the decedent’s passing as a result of ovarian mesothelioma or asbestos-related ovarian cancer.
In contrast, the statute of limitations for personal injury claims begins when the plaintiff knew or reasonably should have known, or “discovered,” that they were harmed. This could be the date of the plaintiff’s cancer diagnosis, the date she found out talcum powder may have contributed to her illness, or the date the manufacturer announces the product’s deficiency.
Many states also have a specific statute of repose for products liability actions, which is similar to, but enforced more strictly than, a statute of limitations.
Statutes of limitations can often be waived or extended in special circumstances, but statutes of repose definitively limit the time in which an action may be brought by creating a final deadline for a plaintiff to file suit.
For example, California’s consumer-friendly products liability laws do not specify a period of repose. Alternatively, in Florida, a products liability action is completely barred when more than 12 years have passed from the date the allegedly harmful product was purchased, no matter the date of when the victim discovered her harm or passed away according to Fla. Stat. § 95.031.
But, this statute of repose is “tolled,” or paused, for any period during which the manufacturer or its agents had “actual knowledge that the product was defective in the manner alleged by the claimant and took affirmative steps to conceal the defect.” Fla. Stat. § 95.031(d).
The date a loved one dies lends transparency to when the statute of limitations officially begins to run. However, the 2-year window may not be long enough for family members to successfully find adequate legal representation.
Claims related to talc exposure are expected to rise following the results of the Daubert hearing and the removal of talc-based products from the U.S. and Canadian market. Yet if a victim’s family had no knowledge of talcum powder use, they might be slow to link prolonged talc exposure to the cause of death and note the subsequent illness as a legitimate reason to file.
It’s possible that evidence presented during talc litigation could reveal that Johnson & Johnson had actual knowledge that their baby powder has contained traces of asbestos, as evidence has suggested, or that the product caused plaintiffs’ to develop ovarian cancer.
The fraudulent concealment of this knowledge may lead to the extension of many states’ statutes of limitations, or the tolling of their statutes of repose.
However, Johnson & Johnson attributes its decision to remove baby powder from store shelves to a decline in demand because of coronavirus, and according to CNN, has refused to admit having any knowledge of the dangers associated with its baby powder.
By Lynne Higby
Lynne Higby is a third-year law student at the University of Florida. She is currently based out of Gainesville, Florida, and is excited to further her legal career in Los Angeles following graduation. In her free time, she loves to hike, ski, and do what she can to get outdoors.