Plaintiffs attorneys Allen Smith, left, and defense attorney Jim Smith, right, deliver their opening statements. Click here to see video from the trial.
St. Louis—A Missouri state court jury heard opening statements Friday in a trial that for the first time involves claims from the families of three deceased women that Johnson & Johnson sold popular talc-based products like Baby Powder for decades despite allegedly knowing that talc could cause ovarian cancer.
While this is the sixth talc-related trial in St. Louis, where thousands of similar cases are pending, it is the first time that a jury has simultaneously heard testimony involving three separate women. Previous trials all involved individual plaintiffs, who except for one all secured massive verdicts against J&J. A trial in May resulted in a $110 million verdict, and three previous verdicts totaled nearly $200 million.
The publicity those verdicts generated caused the number of talc-related cases to explode, as thousands of lawsuits joined consolidated dockets in Missouri, California and New Jersey state court in addition to a recently established federal multidistrict litigation also based in New Jersey. Each of these initial bellwether trials plays a key role in shaping the contours of any eventual large-scale settlement, and the proceedings that began Friday are being closely watched as attorneys consider future multi-plaintiff trials as a means of getting more cases in front of a jury.
Courtroom View Network is providing a live gavel-to-gavel webcast of the proceedings.
Attorneys representing the families of Shawn Blaes, 50, Angela Dawn Hershman, 46, and Eron Evans, 41, accuse J&J of continuing to sell products like Johnson’s Baby Powder and Shower to Shower despite knowing about numerous scientific studies that allegedly showed a conclusive link between talc and ovarian cancer. This exposure supposedly occurs after talc is applied to the genitals and particles travel up the fallopian tubes into the ovaries.
J&J also faces accusations of marketing talc products specifically to African-American women, despite allegedly being aware of scienitific evidence that they were even more succeptible to ovarian cancer than other segments of the population.
All three women used talcum powder for over 30 years. Blaes was a Missouri resident, while Hershman and Evans resided in Virginia and Texas, respectively. Missouri’s lenient joinder rules raise few barriers to non-resident plaintiffs filing lawsuits in the state’s courts, which has made St. Louis one of the leading hubs for mass tort cases in the country, a status that could be in jeopardy pending the outcome of a U.S. Supreme Court case addressing the rights of out-of-state plaintiffs.
J&J, along with their talc supplier and co-defendant Imerys Talc America, maintain that talc is not a carcinogen, and that the studies plaintiffs rely on are outdated and based on flawed methodology. The companies compare talc to products like alcohol or red meat and point to the fact that no government regulatory agency has called for a cancer warning label on talc-based products, a theme that played a central role in Johnson & Johnson’s lone trial victory in a talc case earlier this year.
During his opening statement, R. Allen Smith of the Mississippi-based Smith Law Firm told jurors that this trial is "not an ordinary case.”
“This case is about corporations placing their corporate image over the life of their customers and the safety of their customers, pure and simple,” Smith said, according to a CVN webcast of the trial.
Smith heads up the same trial trial team that squared off against J&J and Imerys in the five previous trials in Missouri. However J&J brought in a new lead firm for this first multi-plaintiff trial in the 600-attorney Philadelphia-based Blank Rome.
J&J has used a variety of powerhouse firms in this litigation, and given the stakes of a trial involving simultaneous testimony about three plaintiffs, some thought the company would bring back Bart Williams of Proskauer Rose, the trial pro who successfully delivered the company’s first talc defense verdict earlier this year.
Blank Rome's Jim Smith told jurors that talc was “ubiquitous” and could be found in products ranging from lipstick to chewing gum.
“Because it’s not toxic, and because it’s not a carcinogen, and because it doesn’t cause ovarian cancer, it’s not a hazard and therefore no warning is required,” he argued.
Williams’ absence is likely related to his involvement in another upcoming bellwether talc trial set to begin July 10 in California state court. That is the date set by a Los Angeles judge for the first trial in that state’s growing batch of talc cases, and given the impact the initial verdict in Missouri had last year in terms of spawning more lawsuits, the fallout from another headline-grabbing outcome in the first California trial could be enormous.
Prior to that trial on June 26, the same judge will convene a 5-day hearing to determine the admissibility of expert testimony. Expert testimony on the alleged causal relationship between talc and ovarian cancer plays a central role in these trials, and a decision by a New Jersey state court judge last fall to exclude witnesses that have been permitted to testify for plaintiffs in Missouri resulted in the scuttling of a bellwether trial just days before it began.
Friday’s openings mark the beginning of an increasingly active period in talc litigation. In addition to the California hearing and trial set for the coming weeks, another multi-plaintiff talc trial is scheduled in July before St. Louis Circuit Court Judge Rex Burlison, who has presided all of the previous talc trials.
Like previous talc cases, the current trial showcases a number of heavyweight attorneys from law firms across the country.
In addition to Allen Smith, the plaintiffs are also represented by Ted Meadows, Danielle Ward Mason and David Dearing of the Alabama-based law firm Beasley Allen.
Besides Jim Smith, J&J is represented by Debra Pole out of Sidley Austin’s Los Angeles office and by Mark Hegarty out of Shook Hardy & Bacon’s Kansas City office.
Imerys is represented by Jane Bockus out of Dykema Cox Smith’s San Antonio office, and by Mark Prost out of Sandberg & Von Gontard’s Phoenix office.
The consolidated case is captioned Swann, et al. v. Johnson & Johnson, et al., No. 1422-CC09326-01, in Missouri’s 22nd Circuit Court in St. Louis.
E-mail David Siegel at dsiegel@cvn.com.