Mistrial declared in high-Stakes Johnson & Johnson talc-cancer case

The company is defending an avalanche of talc-cancer claims

Published October 6, 2018 9:29AM (EDT)

 (AP/Matt Rourke)
(AP/Matt Rourke)

This piece originally appeared on FairWarning.

A mistrial was declared today after a California state court jury deadlocked on whether Johnson & Johnson was responsible for the asbestos-related cancer of a woman who blamed her illness on longtime use of contaminated baby powder.

Soon after starting a sixth day of deliberations, jurors in Los Angeles Superior Court told Judge Margaret L. Oldendorf that they were at an impasse, with eight of 12 favoring an award of damages to the plaintiff, Carolyn Weirick. That was one short of the nine votes needed for a verdict on claims that J&J was guilty of negligence, failure to warn about the risk of asbestos and marketing defective products.

Imerys Talc America, Inc., J&J’s talc supplier and co-defendant, was dismissed from the case after reaching a confidential settlement with Weirick just before jury deliberations began.

Weirick, 59, the co-owner of an educational counseling service, suffers from mesothelioma, a deadly form of cancer strongly associated with asbestos exposure. According to her lawsuit, she had no occupational exposure to asbestos, but over many years had unknowingly inhaled microscopic asbestos fibers when she sprinkled on Johnson’s Baby Powder and another talc powder, Shower to Shower. Lawyers for J&J argued that the powders have always been asbestos-free and could not have caused Weirick’s mesothelioma, which they said occurred spontaneously. Key issues in the case were whether positive tests for trace levels of asbestos in the talc were accurate and, if so, whether Weirick breathed enough asbestos to cause her cancer.

Given the results of similar trials, the no-decision was a victory, of sorts, for J&J in the mushrooming litigation targeting its signature baby powder. Altogether, plaintiffs have won eight of 12 talc-cancer trials against the drug and consumer products giant, with two cases ending in defense verdicts and two others, including today’s, in jury deadlocks. In July, jurors in St. Louis hit J&J with one of the largest product liability verdicts in U.S. history–a $4.69 billion award of compensatory and punitive damages to 22 ovarian cancer victims or their survivors.

“We look forward to a new trial to present our defense — which rests on decades of independent, scientific testing confirming that J&J Baby Powder and Shower to Shower do not contain asbestos,” J&J said in a prepared statement after the mistrial was declared.

The company is defending an avalanche of talc-cancer claims. As of July 1, J&J faced 10,600 lawsuits on behalf of people alleging they contracted cancer from routine use of talc powders, according to the company’s latest quarterly report. The vast majority of the claims are by ovarian cancer victims who say they contracted the disease from longtime use of the powder for feminine hygiene. The others are mesothelioma suits like the one brought by Weirick. Most cases will never be tried, but the outcome of early trials could influence settlements of many others.

Talc, the softest known mineral, has a wide range of uses in cosmetic, pharmaceutical and even food products, but talc deposits are sometimes contaminated by naturally occurring asbestos.

Several jurors spoke to lawyers and reporters today after the judge dismissed them. George Chen, a 30-year old computer analyst and one of the eight who favored a plaintiff verdict, said he was “a little frustrated” and “really wanted to push this through.” He said the four members who voted for the defense seemed to have ”the mindset of . . . business people” concerning what a responsible company should do.

Even if there were mere traces of asbestos, J&J should have provided warnings, Chen said, because “people have a right to know.” Moreover, he noted, J&J for decades has offered a baby powder made with corn starch, and could have retired the talc version to eliminate any risk.

Another juror who declined to give her name but indicated that she voted with the majority said she, too, was ”pretty frustrated because it seemed pretty obvious to me.” The four others, she said, seemed to think it was ”reasonable” for J&J ”to go for profits over people because that’s what all big corporations do.”

But Amy Avila, 42, one of the jurors who sided with the defense, described the split as between ”the thinkers against the feelers,” and said she wasn’t persuaded that Weirick’s cancer stemmed from exposure to contaminated powder.

In testimony in the case, plaintiff expert and materials scientist William Longo said his microscopic analysis turned up asbestos fibers in an old bottle of talc powder lying around Weirick’s home. Her lawyer, Jay Stuemke, also showed jurors internal J&J memos and test reports that he said showed J&J knew for decades that its talc supplies and even finished powders were sometimes tainted by asbestos.

In a 1974 memo placed in evidence, a J&J official said “our very preliminary calculation indicates that substantial asbestos can be allowed safely in a baby powder.”

In another memo the same year, the head of research and development for Windsor Minerals, then a J&J mining subsidiary, wrote of the need to develop ways to purge talc of stray asbestos. Pursuing such methods “is strongly urged by this writer to provide the protection against what are currently considered to be materials presenting a severe health hazard and are potentially present in all talc ores in use at this time ”

Another internal document in 1975 described the company’s approach as being “to initiate studies on talc safety only as dictated by confrontation,” in order to ”minimize the risk of possible self-generation of scientific data which may be politically or scientifically embarrassing.”

But as in previous cases, J&J contended that its talc had always been asbestos free, and that stray mineral particles sometimes characterized as asbestos were actually something else. J&J lawyer Chris Vejnoska also cited epidemiological studies that found no cases of mesothelioma among talc mine and millers exposed to talc ”every day for a professional lifetime” as evidence that Weirick’s cancer was not caused by talc powder.

Mesothelioma is extremely rare, striking about 3,200 people per year, or one in 100,000 U.S. residents. It has been described as a ”signal tumor” because it is so strongly linked to asbestos exposure, although some research suggests it can result from other causes.

Although J&J faces the greatest legal exposure, it’s not the only company to be targeted by talc powder-cancer lawsuits. For example, Colgate Palmolive, which formerly made Cashmere Bouquet powder, faces 222 cases, according to its latest quarterly report.

A mesothelioma case against J&J is currently being tried in New Jersey. Colgate and Imerys Talc were co-defendants, but have settled the claims against them.

By Myron Levin

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