Atlanta, GA-- Fulton County State Court Judge Jane Morrison declared a mistrial Tuesday afternoon in Georgia’s first case to go to trial over alleged links between Johnson & Johnson’s talc-based Baby Powder and a woman’s death from ovarian cancer. Brower v. Johnson & Johnson, 16EV005534.
The declaration followed the jury foreperson’s statement that panel members remained deadlocked despite Judge Morrison's earlier admonition to reach a consensus if at all possible — an instruction known as an Allen charge. The mistrial wrapped three days of deliberations and nearly three weeks of testimony on whether Diane Brower’s years of using Baby Powder led to her 2016 ovarian cancer death.
Early Tuesday afternoon, jurors indicated they were split 10-2 in the case, prompting the Allen charge. And over the course of deliberations, jurors signaled their potential struggles with the issue of proximate cause, requesting clarification both Monday afternoon and Tuesday shortly before declaring a deadlock.
Brower, 65, died after a three-year battle with ovarian cancer. Her family contends the disease was caused by talc in J&J’s Baby Powder, which Brower used in her genital area for years. This is the state's first such case to go to trial against the consumer products giant. Nationwide, J&J and other cosmetic talc manufacturers face thousands of lawsuits alleging links between talc and a variety of cancers.
The three-week Brower trial turned in large part on whether fibers in J&J’s cosmetic talc powder are carcinogenic, as well as the company’s knowledge of any potential danger. While many talc cases include claims of asbestos in the product, the battle lines in Brower focused on fibrous talc and its alleged link to cancer, while a pre-trial order excluded any reference to the term "asbestos" at trial.
During Thursday’s closings, The Smith Law Firm’s Allen Smith detailed expert testimony he said connected genital talc use with ovarian cancer generally and Brower’s disease specifically. But he said the case hinged on internal documents and patent paperwork dating as far back as the 1950 that he argued showed J&J knew talc fibers were dangerous and that cornstarch could have been used as a safe alternative.
“None of that information — zero — has been conveyed to the consumer,” Smith said, contending the company failed to warn of talc's dangers to protect one of its signature products. “That’s the entire case.”
Smith requested about $2 million in economic damages, plus unspecified non-economic damages and a finding that punitives are warranted.
But J&J argues Brower likely suffered from a genetic predisposition to ovarian cancer and its talc played no part in the disease. During Thursday’s closings, Blank Rome’s James Smith walked jurors through testimony on studies concluding cosmetic talc does not cause cancer. Moreover, he said, there was no valid study that proved talc could make its way from a woman’s perineal area to her ovaries.
“[Allen Smith] wants you to ignore 50 years of science and focus on three documents,” James Smith said. “But look at the science. The science compels but one conclusion, and we can’t turn our back to it.”
After the mistrial declaration, Beasley Allen's Ted Meadows, representing the Brower family, said in a statement emailed to CVN that the weight of the jury's opinion had been in favor of the plaintiff. "After a lengthy trial and three days of deliberations, it is unfortunate that the jury was unable to reach a unanimous verdict. The parties were told that the jury was divided 10-2 in favor of the plaintiff," the statement read. "Scientific studies and internal company documents show the liability of Johnson & Johnson and the link of Baby Powder use to ovarian cancer. We will continue to move forward with these important claims on behalf of ovarian cancer victims in venues across the nation."
In its own statement emailed to CVN, J&J thanked jurors for their work in the case and noted the company was looking ahead to retrial. "We sympathize with anyone suffering from cancer, and we understand patients and their families are seeking answers. We are grateful to the jury for their time and believe this outcome reflects the diligent review by the jurors of the facts in this case," the statement read. "We look forward to a new trial to present our defense, which rests on decades of independent, non-litigation driven scientific evaluations, none of which have found that Johnson's Baby Powder causes cancer."
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The Brower family is represented by The Smith Law Firm’s Allen Smith and Beasley Allen’s Ted Meadows, Sharon Zinn, and Robert Register.
Johnson & Johnson is represented by Blank Rome’s James Smith, Sidley Austin’s Debra Pole and Eric Schwartz, Shook Hardy’s Mark Hegarty and Thompson Hine’s Ileana Martinez and Leslie Suson.