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Plaintiff Attys Seek 3rd Win Against J&J At Trial Over Talc Powder's Supposed Cancer Risk

Posted by David Siegel on Oct 5, 2016 1:11:57 AM

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Plaintiff's attorney Allen Smith and Johnson & Johnson attorney David Dukes deliver their opening statements. Click here to see video from the trial. 

St. Louis - A Missouri state court jury heard opening statements Tuesday in a high-stakes lawsuit accusing pharmaceutical giant Johnson & Johnson of concealing the ovarian cancer risks of its popular talcum powder-containing personal hygiene products, as thousands of similar cases begin piling up in state and federal courts throughout the country.

Plaintiff Deborah Giannecchini, 46, is the third woman to take her case before a St. Louis jury after two other talc-related cases ended in staggering verdicts of $72 million and $55 million. With over 1,200 cases pending in centralized dockets in Missouri and New Jersey, whether or not J&J can break the plaintiffs’ winning streak could play a significant role in shaping the terms of potential future settlements.

The closely-watched trial is being webcast gavel-to-gavel by Courtroom View Network.

Giannecchini suffers from Stage Four ovarian cancer and used talc powder products on her genital area for most of her adult life. Her lawsuit alleges J&J knew talc particles could travel to the ovaries and cause cancer, but withheld the information from the public due to the popularity of brands like Johnson & Johnson’s Baby Powder and Shower to Shower.

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J&J has argued that ovarian cancer has no single known cause, and that both the FDA and CDC reviewed the potential cancer risks of talc-containing hygiene products and deemed them safe.

Given the potential nationwide impact of a third state court verdict, attorneys from all over the country have descended on Judge Rex Burlison’s St. Louis courtroom for a trial that could last up to four weeks. Giannecchini is represented by the same Mississippi-based firms that secured plaintiffs’ verdicts in the previous two Missouri talc cases, Beasley Allen and The Smith Law Firm.

J&J changed up their trial team after Shook Hardy & Bacon and Butler Snow headed up their defense at the last two trials, with attorney David Dukes of Nelson Mullins Riley & Scarborough's Columbia, SC office delivering J&J’s opening statement on Tuesday.

Imerys Talc America, J&J’s talc supplier and also a defendant in the case, is represented by Nancy Erfle of Gordon & Rees’ Portland, OR office, who also helped the company avoid any liability in the previous two state court trials.

During his opening statement on Giannecchini’s behalf, Allen Smith argued to jurors that they should hold J&J accountable for allegedly selling a product they knew to be dangerous out of a desire to protect a profitable brand.

“You have an opportunity as a juror in this case to change one of the largest corporation’s behavior,” Smith said. “This is big stuff.”

Smith also told the jury that the case had far broader implications than just for his client.

“It goes beyond Ms. Giannecchini,” Smith said. “It affects thousands of women.”

The comment drew an immediate objection from J&J’s lawyers, which Judge Burlison overruled. J&J has argued that the cases pending before Judge Burlison in Missouri were improperly consolidated and bear few similarities to one another. The company has made two unsuccessful attempts to remove the litigation to federal court, the second attempt taking place barely a week before jury selection began in Giannecchini’s trial.

Only one talc powder case has gone to trial in federal court, but it ended with a verdict far more favorable to J&J than the ones rendered by state court juries. A South Dakota jury in 2013 found J&J to be negligent but awarded the plaintiff no damages.

In his opening for J&J, Dukes stressed that studies the plaintiffs would point to showing a link between talc powder and ovarian cancer were directly refuted by regulatory agencies like the FDA and CDC, which also examined the issue.

“I’m going to talk to you about studies involving literally hundreds of thousands of women over decades that led to the conclusion of those institutions that there is no association between talc and ovarian cancers,” Dukes said.

Erfle in her opening made a similar argument that Imery’s made in previous trials, suggesting that they’re just a talc supplier and not a pharmaceutical company and bear no responsibility for how J&J’s products were sold or marketed.

So far the only centralized dockets for talc powder cases are in Missouri and New Jersey, where another October trial date was recently scuttled after a judge dismissed what would have been the first talc trial in that state for lack of evidence. A federal talc MDL could soon be established, after the Judicial Panel on Multi-district Litigation considers a motion for coordination of talc powder cases on September 29.

The current Missouri case is Tiffany Hogans, et al.v. Johnson & Johnson, et al. case number is 1422-CC09012-01, in the 22nd Circuit Court in St. Louis.

Email David Siegel at [email protected]

Topics: Products Liability