An attorney representing a woman dying of mesothelioma told a California jury during trial opening Monday that Johnson & Johnson knew for decades its talcum powder products contained cancer-causing asbestos but failed to warn consumers about its risks or replace the talc with less-toxic cornstarch.
During the first day of a trial in Oakland, the jury was told that Teresa E. Leavitt’s cancer, who is expected to die this year, was caused by years of exposure to toxic baby powder. Her attorney argued that J&J and multiple mining companies, which are now owned by Imerys Talc America and its affiliates, knew the baby powder could contain toxic levels of asbestos, but they failed to inform consumers.
“The evidence will be they knew of the asbestos risk and they continued to sell the products,” he said.
Leavitt’s mother used J&J baby powder on Leavitt and her sister when they were babies in the 1960s in the Philippines and she continued to use it after their family moved to the United States in 1968. As a young woman, Leavitt also powdered her hair and face with the product, using it as dry shampoo and a foundation for makeup through the 1970s. At the time, Leavitt and her mother had no reason to believe that the baby powder posed a health risk.
However, Leavitt’s attorney argued that as early as the 1970s, J&J began considering substituting cornstarch for talc due to alleged concerns that talc could contain asbestos that causes mesothelioma, which is incurable. In those days, J&J made baby powder by grinding up large talc rocks. The rocks were mined by companies in Southern Vermont, Korea and for a short period in Italy. But the attorney argued that asbestos deposits near the talc rocks were processed with talc rocks and ground into a fine powder, and the substances couldn’t be separated.
As concerns began to grow over talc’s alleged link to cancer, Leavitt’s attorney argued that J&J either didn’t test its baby powder for asbestos or used the wrong methodology, allegedly leading to misleading results that the powder didn’t pose health risks to consumers. And now, to support their defense, the plaintiff’s attorney argued defendant companies have misleadingly pointed to an epidemiological study that shows talc miners in Vermont didn’t get cancer.
But Leavitt’s attorney said those miners were in a “completely different” situation, because they used protection while they were working and they weren’t exposed to talc as a fine powder. Moreover, some of them did get cancer, he said.
Meanwhile, Leavitt, who has two teenage children, was diagnosed with cancer in 2017 and has undergone six chemotherapy treatments, and doctors don’t expect her to live to see 2020. Ms. Leavitt’s attorney noted that she is too ill to attend trial and he showed the jury pictures of her lung tissue and lymph nodes that show traces of talc and asbestos buildup.
The plaintiff’s attorney urged the jurors to find J&J and the mining companies liable for multiple claims, including a design defect claim, failure to warn claim and manufacturing defect claim. The attorney also told the jury that depending on how the trial goes, Leavitt might seek punitive damages.
After Leavitt’s openings, Imerys’ attorney, Bradford J. DeJardin of Dentons, warned the jury that “this case is going to be sad.” But he said they need to “put aside sympathy” and look at the evidence, which he argued will show that the “science” is on the defense’s side. DeJardin said Levitt’s cancer hasn’t shown typical symptoms associated with asbestos, and he noted that asbestos in talc is rare.
“There’s no credible evidence that J&J baby powder caused Leavitt’s cancer in this case,” he said.
DeJardin added that the pictures of talc and asbestos inside Leavitt’s tissue were misleading. He argued that “everybody has asbestos” inside of them, because it was once a common material used in a variety of household products and in building construction.
J&J’s counsel also asked Alameda County Superior Court Judge Brad Seligman for a mistrial, arguing that Leavitt’s attorney poisoned the jury pool during his opening statement by mentioning a certain type of asbestos and referencing the more than 100 other cases that have been filed against J&J over its talc products. Judge Seligman told the parties that the trial will continue for the time being, but he asked them to meet and agree on a briefing schedule for them to argue the motion.
This trial is the latest development in thousands of lawsuits filed in the last few years that J&J has faced over its talc products. In July, the company was hit with a $4.7 billion verdict in a suit brought by 22 women who claimed talcum powder in its products contained asbestos and gave them cancer. A month earlier, a California judge declared a mistrial in another lawsuit by a 94-year-old woman who claimed talc powder gave her mesothelioma, after the plaintiff died.
In April, a New Jersey jury hit J&J and Imerys with a $117 million verdict in a similar case.
Trial will continue Tuesday with J&J’s opening statement.
The case is Leavitt v. Johnson & Johnson, case number RG17882401, in the Superior Court of the state of California, County of Alameda.
–By Dorothy Atkins with Additional reporting by Daniel Siegal. Editing by Breda Lund.