For a fifth time, Johnson and Johnson has been found liable for a Plaintiff’s ovarian cancer caused by her perineal use of Johnson’s Baby Powder and Shower to Shower products. After another month-long trial, a jury in St. Louis awarded more than $110 million to a Virginia woman, the largest talcum powder verdict so far. Imerys Talc America, Johnson’s talc supplier, was also found negligent and guilty of conspiring with Johnson and Johnson to suppress relevant science and unduly influence industry regulators.
Lois Slemp, 62, proved that more than four decades of talc use caused or contributed to cause her ovarian cancer, which had grown to the size of a basketball by the time of her first surgery. Then, after seven months of apparently successful chemotherapy, the cancer returned, this time metastasizing to her liver. She was actually undergoing a second regimen of agonizing chemotherapy during the trial and was physically unable to attend. She was forced to testify by audio deposition, and she is still courageously battling the disease at this time.
The four-man, eight-woman jury deliberated for 10 hours before awarding Ms. Slemp $5.4 million in compensatory damages and $105 million in punitive damages against Johnson and Johnson, and $54,000 in compensatory damages and $50,000 in punitive damages against Imerys. Previous verdicts against these Defendants awarded plaintiffs $70 million, $72 million and $55 million. The Defendants have only prevailed in one of six trials.
During the Slemp trial, we called a number of prominent scientists and researchers from the fields of epidemiology, gynecology, toxicology, and pathology, who all testified that more than 20 well-designed studies show a statistically significant association between ovarian cancer and genital talcum powder use. In addition, our experts were able to explicitly describe how talc particles can migrate from the perineum through a woman’s reproductive tract, and implant in the tissue of the fallopian tube, ovaries and other adjacent organs. The talc particles then cause a toxic reaction which can damage cells, causing neoplastic changes that can develop into cancer.
There was one distinguishing characteristic that was different in this trial from past trials. This time, not only did our expert pathologist find talc particles in Ms. Slemp’s reproductive tissue, he also found a tremolite asbestos fiber, a well-known carcinogen. Johnson and Johnson’s body powder products were known to be contaminated with asbestos prior to the mid-1980s. Interestingly, however, based on post-trial interviews with jurors, we learned the jurors were not as troubled by the presence of asbestos as we expected them to be. It was the presence of talc particles, and the evidence regarding the toxicity of talc, that was their primary focus of causation.
We also called an expert from the cosmetics industry who testified about cosmetic regulatory matters and appropriate business practices for cosmetic companies. Through this expert, the jury was shown a cache of internal documents evidencing J&J and Imerys’s full awareness of the ovarian cancer risk associated with their body powders, as well as all of their concerted efforts over 30 plus years to shape and suppress the science so as to conceal the risk from the public. Beasley Allen’s lead trial counsel Ted Meadows had this to say:
Once again we’ve shown that these companies ignored the scientific evidence and continue to deny their responsibilities to the women of America. They chose to put profits over people, spending millions in efforts to manipulate scientific and regulatory scrutiny. I hope this verdict prompts J&J to acknowledge the facts and help educate the medical community and the public about the proper use of their products.
Beasley Allen’s next talc trial is scheduled to start this month. Plaintiffs have moved for a multi-Plaintiff trial, which at press time remains under consideration by the Court. The Slemp trial team was composed of Beasley Allen lawyers Ted Meadows, Danielle Mason, David Dearing and Ryan Beattie; Allen Smith of the Smith Law Firm; and Jim Onder and Wylie Blair of the St. Louis firm Onder, Shelton, O’Leary & Peterson, LLC. We also have an invaluable support team of paralegals and legal assistants and other support staff. It takes a large team of highly skilled and dedicated professionals to take on a giant corporation like Johnson & Johnson. The commitment of our trial team is evidenced by our success to date. It’s unclear how many sizable verdicts it will take for Johnson & Johnson and Imerys to start warning unsuspecting women about the ovarian cancer risk associated with the perineal use of their talc-based body powders. But until then, Beasley Allen will continue to take the fight to them.
I will now give an update on the MDL Talc Litigation. The talcum powder multi-district litigation (MDL) is in New Jersey federal court where approximately 300 cases are pending. The MDL continues to advance. Judge Freda Wolfson ruled earlier this year that she will consider general causation in the MDL prior to the scheduling of individual bellwether trials. Before the general causation proceeding starts, however, Plaintiffs have the opportunity to pursue additional discovery, which is ongoing.
The Plaintiff Steering Committee’s recent discovery efforts are yielding significant results. For example, Plaintiffs recently learned that the Johnson & Johnson Defendants did not include terms such as “cancer,” “ovary,” “carcinogen,” and the like in their search to identify responsive internal documents. Judge Wolfson ordered J&J to search with additional relevant terms and these searches produced thousands of additional documents. In addition, Plaintiffs have identified other relevant documents that have not yet been produced. The Court has ordered that all responsive documents be produced within 90 days.
Individual Plaintiffs may file cases directly in the MDL using a Short Form Complaint (CMO No. 2). In addition, an abbreviated service process is outlined in CMO No. 3. For cases transferred to the MDL, a Short Form Complaint must be filed within 30 days from the date the case is transferred. Plaintiffs Fact Sheets and other case-specific discovery are not required at this time.
I will also give you an update on California Talc Litigation. There are 123 cases in the California coordinated proceeding, Johnson & Johnson Talcum Powder Cases, Judicial Council Coordinated Proceeding No. 4877. These cases are assigned to Judge Maren E. Nelson. Science Day was held by Judge Nelson on March 7, 2017. The first California trial is scheduled to begin on July 17, 2017. Sargon (the state court equivalent of Daubert) science hearings are scheduled to begin on June 26. We believe the talc litigation is going well in all fronts. The arrogance of J&J – considering all that has happened in this litigation – is difficult to understand.
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