When talcum powder can make you rich, it's time to reassess our litigation mania: Michael Kirsch (Opinion)


Johnson's Baby Powder is squeezed from its container to illustrate the product.

(AP Photo/Matt Rourke)

Dr. Michael Kirsch is a gastroenterologist

I read a piece earlier this week in The Plain Dealer which gives new meaning to the expression "keep your powder dry." A jury in a Missouri state court ruled that Johnson & Johnson must pay a defendant $55 million dollars because the jury was convinced that the company's talcum powder caused her ovarian cancer. Earlier this year, another Missouri jury ordered Johnson & Johnson to pay $72 million under similar circumstances.

I suggest that citizens of the "Show Me" state find another way to keep dry as summer approaches.

First, let me state boldly and unequivocally that I am against cancer. Indeed, as a physician, I am ever vigilant for this foe and combat it aggressively when it appears. I am also hostile to frivolous litigation and to awards that are wildly disproportionate to the injuries suffered, assuming that true culpability even exists.

I am not a shill for corporate America. In fact, I am a private practitioner whose small gastroenterology practice is threatened by the titanic corporate medical institutions that we have here in Cleveland.

But, I am an advocate for fairness, and this verdict and the resultant award are only the latest example of a legal system that has run amok. Remember, just because it's legal, doesn't mean it's fair or just.

We know how the talcum powder legal template works. Plaintiff attorneys find documents that they claim show that a company knew that its product had risks, and that the company buried this information. When a consumer of the product develops the complication, lawyers present these "hidden studies" on large posters using giant fonts to jurors, who have understandable sympathy for an injured individual. Scientific experts, who are often professional testifiers, offer a scientific imprimatur to the legal allegation. Under these circumstances, the demonized and greedy corporation is easily presumed guilty.

I am not faulting the jury. We can all see how jurors can rationally connect the dots that lead to their decision.

But, science is not a smooth process where there is a unanimity of conclusions and beliefs. In my own field of medicine, every established medical practice has dissenting medical studies, views and expert opinions that physicians have decided should not overturn the current standard of care.

In an ideal world, treatments for osteoporosis, depression, heart disease and cancer would be based on a unanimous scientific viewpoint. Of course, on planet Earth, this is not the case.

And, beliefs and practices can change. In medicine, just as in our court system, minority dissenting opinions can rise to become the new standard over time. If talcum powder is found in some future study to actually prevent cancer, should the jury's award be returned?

All manufacturing industries - automotive, pharmaceutical, cosmetic, food, toys, etc. - have done studies or have information which suggest an unfavorable result. The existence of such data does not mean that the product is risky, any more than your medication is dangerous because scientific information exists that challenges its safety. One must look at the totality of evidence in order to reach a reasonable conclusion, understanding that reasonable does not mean absolute certainty.

I have read, for example, that 97 percent of climate scientists argue that warming temperatures are caused by human activity. Would it be reasonable for me to highlight the 3 percent of dissenters as evidence of a global warming hoax?

Of course, I do not condone an institution burying studies or data, which would threaten the public's interest. Companies should have independent professionals overseeing this process to assure the public that the institution is operating in a responsible and ethical manner. But, companies also have a right to protect proprietary information from competitors. While I favor transparency in the corporate sphere, I understand a company's reluctance to open its books in the current predatory legal climate.

No, I did not attend the talcum powder trial, so you can accuse me of not knowing the facts. If that is your best shot against me, then have at it. Most of us increasingly feel that the legal system has become more of a strangling noose than a protective net under us.

Like millions of folks, I use talcum powder regularly. So far, I have escaped a catastrophic consequence. But, if any medical adversity befalls me, I'll know just who to blame.

Dr. Michael Kirsch is a gastroenterologist in Northeast Ohio who writes weekly medical commentary at mdwhistleblower.blogspot