A winning defense in talc trials often hinges on how well an attorney can counter plaintiff’s causation arguments. At trial over the ovarian cancer a woman claims was caused by Johnson & Johnson’s talc-based Baby Powder, Allison Brown’s strong closing cleared the company of liability where billions of dollars were on the line.
Vickie Forrest contends her ovarian cancer was caused by asbestos in J&J’s talc-based Baby Powder, which she had used for years. At trial, in Missouri state court, her attorneys sought $20 million in compensatory damages and up to $5 billion in potential punitives.
But J&J argued there was no link between Forrest’s cancer and the company’s cosmetic talc. In closings, Brown, of Skadden Arps Slate Meagher & Flom, contrasted the long, widespread tradition of Baby Powder use with what she argued was the thin evidence connecting J&J talc to Forrest’s disease.
Plaintiff’s legal team, Brown said, brought no evidence concerning asbestos in the actual Baby Powder bottles Forrest used. “No one calculated how much they think she was exposed to: of asbestos, of talc, of heavy metals, of anything,” Brown argued, ticking each element off on her fingers. By contrast, Brown said, “What the evidence has been here is that Johnson’s Baby Powder is a product that has been used safely for 125 years.”
That century-plus of use, Brown contended, included hundreds of millions of people, while the clear-cell ovarian cancer plaintiff claimed was caused by the Baby Powder was “extraordinarily rare” by comparison.
“That’s not an excuse. That’s the truth,” Brown said. “It doesn’t make sense that such a popular consumer product used by millions and millions of women around the world could cause a disease that, thankfully, almost no one gets."
Indeed, Brown told jurors, one of Forrest’s treating physicians testified that he did not believe J&J’s talc caused Forrest’s cancer. “The best evidence sometimes comes from outside this courtroom, where we’re not paying anybody to come in to testify, the plaintiff’s lawyers aren’t paying anybody, where you get testimony from just good doctors who are doing their best to take care of their patients,” Brown said.
On the other side of the argument, Brown argued, were experts whose credibility was questionable. “The only people to tell Ms. Forrest that her cancer was caused by talc was either the lawyers or the experts that they’re paying to come in here,” Brown told jurors. “Not one of the experts that the plaintiffs brought you to this court ever held the opinion that they gave to you from that witness stand, before these plaintiff’s lawyers started paying them.”
Brown's compelling closing helped key a major trial win for J&J.
Email Arlin Crisco at acrisco@cvn.com.
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