Courtroom View Network screenshot of plaintiff attorney Allen Smith (left) and defense attorney Orlando Richmond (right) delivering their opening statements. Click here to see video from the trial.
St. Louis — Lawyers from across the country gathered in a Missouri state courtroom on Tuesday for opening statements in another trial over the supposed links between Johnson & Johnson’s talc-containing personal hygiene products and ovarian cancer.
With thousands of similar lawsuits pending in state and federal courts, the trial is being closely watched to see if J&J can land a second defense verdict after prevailing in a talc trial for the first time in March. Prior to that win the company suffered three consecutive headline-grabbing losses, all in Judge Rex Burlison’s St. Louis courtroom, which resulted in nearly $200 million in damages awarded to women claiming talc powder caused their ovarian cancer.
Plaintiffs accuse J&J and their talc supplier, Imerys Talc America, of failing to warn consumers about the potential cancer risks from talc-containing products despite being aware for decades of numerous scientific studies suggesting the mineral is a carcinogen. J&J and Imerys maintain those arguments are based on flawed and outdated science, and that talc is no more dangerous than alcohol or red meat, neither of which carries a cancer warning label.
RELATED: Analysis of recent talc "Science Day" hearing in Los Angeles from Innovative Science Solutions
Lois Slemp, a 61-year-old Virginia woman, claims that over four decades of using Johnson & Johnson’s Baby Powder and Shower to Shower on her genitals caused her to develop ovarian cancer. Missouri law allows for lawsuits like these filed by out-of-state residents, which has turned St. Louis into the nationwide hub for talc cases.
Slemp’s case is a defense pick, meaning it was selected for trial by J&J and Imerys due to a fact set they deemed favorable to them. The trial was originally scheduled to be a plaintiff pick, following a defense pick at the trial in March, but Slemp’s deteriorating health required an expedited trial date, according to her attorneys.
During his opening statement, Slemp’s attorney Allen Smith of The Smith Law Firm told jurors they would see internal J&J documents that show clear knowledge of a link between talc and ovarian cancer going back 30 years, and that the company engaged in extensive lobbying to avoid classification of talc as a carcinogen by regulatory agencies.
“This case is about corporate profit and maintaining a corporate image over human life,” Smith said, according to a Courtroom View Network webcast of the trial. “That’s what this case is about. And your verdict could prevent potentially hundreds of thousands of women from contracting one of the most deadly forms of cancer.”
The scale and scope of the talc docket in St. Louis, where more cases are centralized than anywhere else in the country, has drawn numerous out-of-state attorneys at this current trial and the four prior. Smith is based in Mississippi, and his co-lead counsel Ted Meadows of Beasley Allen Crow Methvin Portis & Miles is based in Alabama.
While the J&J and Imerys teams are not lacking in legal firepower, notably absent from the courtroom on Tuesday was the California-based trial ace Bart Williams of Proskauer Rose, who successfully lead J&J’s defense efforts at the trial in March. Williams did not respond to a request for comment.
Delivering his opening statement on behalf of J&J, Butler Snow’s Orlando Richmond, another Mississippi attorney, slammed Smith’s “carefully crafted” arguments as being made up of “bubble gum and tape.”
“This is going to be a fight, and it’s going to be a fight because it’s a serious thing being accused of a product that causes ovarian cancer,” Richmond said.
Richmond is backed up by outside counsel from Covington & Burling’s Washington, D.C. office, and by local Missouri counsel from Shook Hardy & Bacon. CVN previously covered Richmond at a number of trials involving the acne medication Accutane in New Jersey state court.
In a trial that will delve deeply into complex scientific minutia, Richmond used a simple analogy to explain the concept that correlation does not mean causation, and the fact that Slemp used talc powder doesn’t mean it caused her cancer. He described growing up on a farm and associating the sound of a rooster crowing with the sunrise.
“Does a rooster’s crow cause the sunrise? Of course not,” he said.
Imerys is represented by Jane Bockus out of Dykema Gossett Smith’s San Antonio office, and by Gordon & Rees. They have fared better in St. Louis so far than their co-defendant J&J, with only one of the four St. Louis juries so far assigning them any liability.
The enormous publicity generated by the previous multi-million verdicts has caused talc dockets to swell, and the coming months will see a flurry of activity in numerous jurisdictions. In May a Missouri appeals court will hear oral arguments challenging the $72 million awarded in 2016 to Jacqueline Fox, the first talc case to go to trial in St. Louis. Then in June another trial begins before Judge Burlison.
That same month a California state court judge will convene a 5-day “Sargon” hearing, California’s equivalent of a Daubert proceeding, to determine the admissibility of expert witness testimony. This could be as significant as a trial itself, after a New Jersey state court judge in October nixed testimony from two key expert witnesses for the plaintiff, scuttling what was set to the first talcum powder trial in the state. That decision remains on appeal.
Depending on the outcome of the June hearing, a bellwether trial is scheduled for July in Los Angeles, along with another trial scheduled that same month in Washington D.C. Superior Court.
The current trial in St. Louis is being webcast and recorded gavel-to-gavel by CVN.
The case is captioned Valerie Swann, et al. v. Johnson & Johnson, et al. case number 1422 CC09326-01 in Missouri’s 22nd Judicial Circuit Court.
Email David Siegel at dsiegel@cvn.com