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South Carolina Jury Finds No Asbestos In Johnson & Johnson’s Talc-Based Baby Powder

Posted by David Siegel on May 21, 2019 6:14:48 PM

Johnson closings-1

CVN screenshot of Johnson & Johnson attorney Michael Brown delivering his closing argument. Click here to see video from the trial.

Richland, SC - A unanimous South Carolina state court jury rejected claims on Tuesday that asbestos supposedly present in Johnson & Johnson’s cosmetic talc products caused a woman to develop a rare and fatal form of cancer. 

Jurors deliberated for less than two hours before returning a verdict in favor of J&J. The case marks the third cosmetic talc-related lawsuit to go to trial in South Carolina. The previous two trials, both stemming from the same lawsuit, ended in mistrials. 

Attorneys for plaintiff Beth-Anee Johnson claimed that inhalation and ingestion of asbestos allegedly present in Johnson & Johnson’s Baby Powder going as far back as the 1960’s caused her to develop peritoneal mesothelioma. 

However J&J successfully argued that Johnson’s form of mesothelioma is naturally occurring. They relied on medical tests showing no asbestos present in Johnson’s lungs, which the company maintained would be impossible if the asbestos also made it to her peritoneum, which lines the abdominal cavity. 

The full trial, which began on May 13, was webcast and recorded gavel-to-gavel by Courtroom View Network. 

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The Richland County verdict came on the same day a New York City jury ordered J&J to pay $25 million in compensatory damages in another cosmetic talc case, leaving the door open for potential additional punitive damages pending further deliberations. That case is believed to be the first involving J&J’s cosmetic talc products to go to trial in New York. 

J&J spokesperson Kim Montagnino attributed the different trial outcomes to the South Carolina jury hearing evidence related to the viability of testing methods employed by a key plaintiff expert in both cases, Dr. William Longo. J&J argued Longo failed to disclose that samples of talc he tested were not randomly collected, but instead were provided by a relative of an attorney representing plaintiffs in talc litigation. 

“Unlike a similar case in New York where the jury did not hear critical information regarding false testimony by the plaintiff’s central testing expert, this South Carolina jury heard that information and unanimously concluded that Johnson’s Baby Powder does not contain asbestos and was not the cause of the plaintiff’s disease,” Montagnino said in an email. “This is the fifth verdict in favor of Johnson & Johnson in recent months, and the two cases finding in favor of the plaintiff this year have suffered significant evidentiary errors which we believe will warrant reversal on appeal.”

Johnson’s attorneys Nate Finch and Christopher Swett of Motley Rice LLC said in a statement that they would continue to push talc cases to trial, noting that the jury initially claimed to be deadlocked before rendering their final decision. 

“We continue to believe that the daily use of talcum powder on Beth-Anee from birth led to her mesothelioma diagnosis. She ultimately wanted to share her story with others through her suit, which I think she accomplished, so that more people are aware of the potential dangers of seemingly harmless baby powder,” they wrote.

The other plaintiff verdict referenced in Montagnino’s statement took place in March and was also covered by CVN, when a jury in Alameda County, California hit J&J with a $29.5 million verdict in another cosmetic talc case. 

The firm which secured that verdict, Kazan McClain Satterley and Greenwood, also represents the plaintiff in another ongoing talc trial in Alameda County involving both J&J and Colgate that CVN is also webcasting. 

Johnson’s case in South Carolina was among the thousands removed to federal court by J&J in recent weeks, citing the pending bankruptcy proceedings involving their main talc supplier Imerys. 

J&J argued that state court talc cases from throughout the country should be grouped together in Delaware due to insurance indemnification agreements with Imerys. 

The result would be consolidation of cases in federal district court, generally viewed as a venue less favorable to plaintiff personal injury claims. However numerous federal judges have rejected that argument, remanding large swaths of talc cases back to state court. 

“Imerys is not a party to this claim; as such, Plaintiffs do not seek relief from Imerys or its bankruptcy estate,” wrote South Carolina Senior United States District Judge Margaret B. Seymour in her remand order. “Additionally, the court notes that this and related cases are close to trial in state court, with the instant action set for trial on May 13, 2019. Recommencing these cases in federal court would result in injustice to plaintiffs.”

J&J was represented at trial by Michael Brown from Nelson Mullins Riley & Scarborough’s Baltimore office, Allison Brown out of Weil Gotshal & Manges LLP’s New York City office, and local South Carolina counsel Louis P. Herns with Milligan Herns LLC. 

The case is captioned Beth-Anee F. Johnson and John W. Greenley, Jr. v. Johnson & Johnson, et al., case number 2018CP4001781, in the Richland County Court of Common Pleas.

E-mail David Siegel at dsiegel@cvn.com

Topics: Products Liability