Photo: Alexander Tolstykh/Shutterstock.com
Johnson & Johnson avoided damaging verdicts in two trials this week alleging its baby powder caused mesothelioma.
In California, a jury rendered a defense verdict, giving Johnson & Johnson the upper hand in the litigation alleging its asbestos-containing talcum powder products caused mesothelioma, a deadly form of lung cancer. Until then, there were eight previous trials. Two ended with defense verdicts, most recently last month in New Jersey, while juries have awarded $25.75 million and $117 million to plaintiffs. The remaining cases ended in mistrials, most recently in South Carolina, where a jury Thursday deliberated a full day before coming back deadlocked at 11-1.
Kimberly Branscome, a partner at Kirkland & Ellis in Los Angeles, who was lead defense counsel in the California case, called the unanimous verdict a “positive turn of events” for Johnson & Johnson. She credited the outcome to a series of rulings that pushed back against the plaintiffs’ experts’ evidence at trial.
“We were able to point out a lot of the limitations and the flaws in the plaintiffs’ case,” she said. “They use a lot of evidence that relates to talc that has nothing to do with Johnson’s baby powder. We focused on those shortcomings, in addition to introducing the positive evidence of the safety of Johnson’s baby powder.”
The California jury, in Humboldt County Superior Court in Eureka, found Wednesday that Johnson & Johnson’s talcum powder products did not contribute to plaintiff Carla Allen’s diagnosis. Allen’s lawyers at Dallas-based Simon Greenstone Panatier had asked for $40 million in compensatory damages, plus punitive damages, according to Johnson & Johnson.
Johnson & Johnson spokeswoman Kimberly Montagnino said in an emailed statement: “We are pleased that the jury found that Ms. Allen’s mesothelioma was not caused by the use of Johnson’s Baby Powder. While we deeply sympathize with anyone suffering from any form of cancer, the science and facts show that her disease was not caused by her use of our talcum-based products. This is the second consecutive verdict in favor of Johnson & Johnson. Decades of clinical evidence and scientific studies by medical experts around the world support the safety of Johnson’s Baby Powder.”
Following a trial of five weeks, the jury found for Johnson & Johnson on most, but not all, of the claims. According to the verdict form, the jury found that Johnson & Johnson’s talcum powder products, which had a manufacturing defect, had exposed Allen to asbestos. Jurors also found that Johnson & Johnson had failed to warn about the dangers. But the jury also concluded that the manufacturing defect was not a “substantial factor” in causing Allen’s mesothelioma, and that Johnson & Johnson’s failure to warn wasn’t a “substantial danger” to her. And the jury found that the products contained no design defect that had failed “to perform as safely as an ordinary consumer would have expected.”
Branscome, who handled the trial with fellow partners Chad Morriss, based in Washington D.C., and Jay Bhimani, based in Los Angeles, said the verdict reflects how the jury considered other exposures that Allen might have had to asbestos, besides Johnson & Johnson’s talcum powder products.
“The plaintiffs’ strategy is to focus on cosmetic talc and, in our opinion, their experts are not investigating other potential causes of the plaintiffs’ disease—in this case, not only the exposure she might have had as a child, but then her job, and husband’s job, but also her grandfather’s medical history,” she said.
But the mixed verdict raised alarms for David Greenstone, a shareholder in Simon Greenstone who represented Allen.
“We always respect the jury and its process, but are finding it difficult to understand the outcome,” he wrote in an email. “The jury found that the Johnson & Johnson product contained asbestos, and they found our client was exposed to it. They even found that the company failed to warn of the dangers the product contained. And yet, they found it didn’t cause her mesothelioma. Those findings don’t seem to agree with each other.”
In South Carolina, it was the second go-round for the case. In the first trial in May, a jury at Darlington County Circuit Court failed to reach a verdict.
Motley Rice’s W. Christopher Swett, an associate in Mount Pleasant, South Carolina, represented the widow of Bertila Boyd-Bostic, a lawyer who died at age 30. Johnson & Johnson unsuccessfully fought to delay the retrial because its lead counsel, Michael Brown of Nelson Mullins Riley & Scarborough in Baltimore, had a scheduling conflict. Stepping in for Brown was William “Billy” Martin, a partner at Barnes & Thornburg in Washington, D.C., whose defense team included fellow partner Sarah Johnston and Sandra Ko, of counsel, both in Los Angeles, and John Ewald, a partner at Orrick, Herrington & Sutcliffe in New York.
“The jury is not going to change their minds,” jurors wrote in a note Thursday, according to coverage of the trial by Courtroom View Network. “No amount of time will change this.”
Previous trials over Johnson & Johnson’s talcum powder and mesothelioma have occurred during the past year in Los Angeles Superior Court and Middlesex County Superior Court in New Jersey. Juries in Los Angeles have ended in mistrials in three cases, a defense verdict in a fourth, and awarded $25.75 million in a fifth. And juries in New Jersey awarded $117 million in one trial, and issued last month’s defense verdict.
Photo: Alexander Tolstykh/Shutterstock.com