A colorful analogy can better connect jurors with terms and issues they’re not naturally familiar with, and serve as a memorable hook to a key element of a case. In closings of a 2019 talc trial against Johnson & Johnson, Chris Panatier used an ice cream shop analogy to argue his point on asbestos test terminology and help set up a blockbuster verdict.
Panatier, of Simon Greenstone Panatier, represented four plaintiffs claiming that asbestos in the consumer giant’s cosmetic talc caused their mesothelioma. During closings, Panatier argued J&J had known for decades that asbestos was in its talc but engaged in linguistic gymnastics to avoid acknowledging it.
Panatier highlighted J&J documents that he said described tremolite in the talc the company used. “Now, if tremolite was no big deal and it was always there and everyone knew it, why are they looking for it, over,and over, and over, and over, and over again? Panatier asked. “Why do they care?”
Panatier went on to tell jurors that J&J used a variety of terms in its internal documents, such as “asbestiform,” “fiberform,” and “rods,” which he said was all actually asbestos.
“It’s sort of like… if you owned an ice cream shop, and someone said ‘Well, what do you have?’” Panatier began. “And you said, “Well, I’ve got pistachio, I’ve got chocolate, vanilla… birthday cake flavor...’ And they said, ‘Well, OK, what about the ice cream? Do you have any ice cream?’”
“And you go, ‘Well, I just told you the flavors.’ [Then they respond] You didn’t say ice cream. You didn’t say it, so how can I know you’re talking about ice cream.’”
Panatier argued the scenario was akin to J&J refusing to acknowledge that “asbestiform” and other terms were not asbestos. “They are specifically looking for asbestos in these samples, and are continuing to find these things,” Panatier said, highlighting the terms. “And then they want to say, ‘We’re looking for asbestos, but we didn’t say it, so it’s not actually there. That’s not a positive finding.”
Notably, New Jersey Superior Court Judge Ana Viscomi struck J&J’s entire closing argument at the conclusion of closings. But jurors took plaintiffs' closing, and memories of Panatier’s colorful analogy, into the jury room before returning with a $37.3 million compensatory verdict. In a subsequent trial on punitives, another jury awarded $750 million, which Judge Viscomi reduced to $186.5 million.
Email Arlin Crisco at acrisco@cvn.com.
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