|VIDEO| The Ken Reilly Opening That Helped Clear J&J in Blockbuster Talc Case | Teachable Moment of Trial

Posted by Arlin Crisco on Dec 5, 2023 3:09:17 PM

In Teachable Moment of Trial, CVN spotlights key courtroom moments and trial-winning techniques from the country's best attorneys. Today, the spotlight focuses on the power of classic display boards as aids.

When opening trials involving complex, sometimes dry, subject matter, it’s critical to both simplify concepts and keep jurors focused on the story of your case. Screens and projectors are often the go-to aids in these situations. However, in openings of a talc trial against Johnson & Johnson, Kenneth Reilly’s skillful opening showed how effective classic display boards can be in detailing a case, setting up a defense win against an $84 million-plus claim.

The family of retired Georgia school teacher Margie Evans sued J&J and its Georgia-based bottler, claiming Evans’ 2018 ovarian cancer death was caused by asbestos in the J&J Baby Powder Evans had used for years. J&J, for its part, claims its products do not contain asbestos and, in any event, Evans' cancer was not caused by asbestos exposure. 

Typical of talc litigation, epidemiological studies, medical evidence, and regulatory findings — all complex, dry information prone to confuse jurors — played central roles in the case.

During his hour-long opening, Reilly, of Shook Hardy & Bacon, adeptly used a deck of display boards to support his contention that talc powder did not cause Evans’ cancer.

Those boards contained much the same information that might be placed on documents displayed on a screen. However, unlike screens and overheads, which often physically separate an attorney from the information shown, display boards allow an attorney more of an opportunity to interact with that highlighted information.

And Reilly, one of the nation’s leading product liability attorneys, put that advantage inherent in display boards to great use. Working next to the display through much of his opening, Reilly would deftly shift from one board to another as he outlined his case, highlighting key bullet points with his finger, tapping the board to emphasize important issues. 

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Because Reilly was next to the information he highlighted, physically interacting with it, jurors’ attention was focused on both him and the information, rather than turning their eyes to a standalone screen. Additionally, his use of the boards delivered a kinetic element to the presentation that reinforced the audio and visual components of the opening in jurors’ minds.

Reilly’s use of display boards perfectly complemented his conversational presentation style, where he delivers openings without a lectern or obvious notes, and it worked to keep jurors engaged while introducing them to the complex information and concepts at the heart of the case.  

For example, when discussing evidence related to Evans’ overall asbestos exposure, Reilly intoduced expert witness Dr. Victor Roggli, a pathologist who had examined tissue in Evans’ lung and lymph nodes, with a display board showing Roggli’s face and key points about the doctor. 

Standing next to the display board, Reilly held up a touchstone book on asbestos that Roggli had written and edited. “Ladies and gentlemen, I don’t use this term loosely,” Reilly said as he opened the book and showed it next to the doctor’s photo. “This is the bible. He’s a true expert, and they asked him to examine that tissue to search for asbestos,” Reilly added.

“And what did he find? What did he find?” Reilly asked, shifting to a board showing a graphic on asbestos exposure in gradient red.

“He’s going to tell you, based on his examination of her pathology, her level of exposure was below the background level," Reilly said, pointing to the light red gradient below a line delineating background asbestos exposure.

“Where’s all this Johnson’s Baby powder asbestos?” Reilly asked, before tapping the board for emphasis. “Their expert says it ain’t there. It ain’t there.”

Reilly’s opening, told through the artful use of classic display boards, ultimately set the stage for a verdict clearing J&J after a four-week trial in which plaintiff’s attorneys had sought $84 million in damages plus possible punitives. 

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Topics: Products Liability, Talc, Teachable Moment of Trial, Monroe v. Johnson & Johnson, et al.