How Plaintiff Counsel Ads Create A Mass Tort Fiasco

A strange thing happened in the St. Louis television market in early 2016. Days after a jury there delivered a $72 million verdict against Johnson & Johnson over the company’s ubiquitous Johnson’s Baby Powder, TV viewers were deluged with ads associating talcum powder with cancer.

There’s nothing new about lawyers advertising for clients on TV. Lawyers of all types spent $472 million in the first half of 2018 on more than 6 million ads, according to X Ante, a firm that analyzes mass tort advertising spending. Current targets include Xarelto, a heart drug that has spawned more than 300,000 attorney ads since 2015, and Invocana, a diabetes drug.

But lawyers usually run ads to get new clients. The talcum powder ads in St. Louis seemed to have a different purpose. Instead of urging viewers to call the law firm that paid for them, the ads described in large type the monumental verdict the plaintiff had just won. And although St. Louis is the 21^st largest media market in the U.S., more talcum powder ads ran there than in any other market through the year ended June 30, 2016, according to a report J&J commissioned in an unsuccessful effort to move the talc trials elsewhere.

“These ads come out basically saying, ‘Here are the facts,’ then they cite what other juries have done,” said John Beisner, the head of mass torts litigation at Skadden Arps, who includes J&J among his clients. “I think the hope of those who designed the ads is to get jurors to think, ‘What is there to talk about? We know what the answer is because we’ve seen it on TV.’”

So far, Johnson & Johnson is fighting the verdicts over talcum powder, including a whopping $4.6 billion a St. Louis jury awarded 22 plaintiffs and their families in July. The company says the fundamental premise of the lawsuits—that talcum powder contains cancer-causing asbestos—is false. But with more than 10,000 lawsuits against it and TV ads running nationwide, it’s not inconceivable J&J could surrender to the pressure of ceaseless litigation and pull another widely used product off the market.

Just type the word “Essure” into a search engine to see how this can happen. The top of the search screen is filled with paid advertising by lawyers warning women against using this FDA-approved birth control device and urging them to sue if they did. Rather than keep fighting, Bayer decided to pull the device off the market by the end of this year.

Now the juggernaut of advertising and litigation is steaming toward glyphosate, the herbicide Monsanto sells under the brand name Roundup. Encouraged by a $289 million jury verdict for a man who blamed his cancer on Roundup, Monsanto faces more than 8,000 lawsuits and a barrage of television ads warning “farmworkers, landscapers and homeowners” that Roundup may have given them cancer, too.

Plaintiff lawyers love advertising—and they’re backed up by a landmark 1977 U.S. Supreme Court decision that struck down bans on attorney ads. But they’re not so enthusiastic about corporate defendants trying to get a counternarrative out. They routinely seek judicial orders to halt even product advertising during trials, Beisner said.

“Plaintiff counsel are very aggressive about anything a company may be saying to the market,” he said. “It’s really an effort to press for double standard.”

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