Law360 (March 13, 2019, 9:20 PM EDT) — A California state jury on Wednesday found Johnson & Johnson’s talcum-based baby powder contained cancer-causing asbestos and caused a woman’s mesothelioma, awarding nearly $29.5 million.
After deliberating for roughly two days, the Oakland jury returned with a verdict in favor of plaintiff Teresa E. Leavitt, finding that J&J’s baby powder contained asbestos and was a substantial factor in causing Leavitt’s cancer. The jury found that J&J and onetime talc supplier Cyprus Mines Corp. both bore portions of responsibility.
The jury of 12 unanimously found that J&J failed to adequately warn of a potential risk in the powder. All but one juror said J&J intentionally withheld facts germane to the safety of the product. They unanimously found Leavitt would have acted differently had she known those facts. And a comfortable majority said the powder’s “failure to perform safely” was a “substantial factor” in Leavitt’s mesothelioma.
J&J was found 78 percent liable, J&J Consumer Inc. 20 percent liable, and Cyprus Mines 2 percent liable.
The jury awarded $291,000 to Leavitt for past medical expenses, $1 million for future medical, $1.2 million for loss of earnings, $7 million for past physical pain and mental suffering, and $15 million for future physical pain and mental suffering. It also awarded $2 million to her partner, Dean McElroy, for past loss of love and companionship, and $3 million for future loss of love and companionship.
During closing arguments on Monday, attorneys representing Mrs. Leavitt, told the jury that his client has a “horrible asbestos disease that will result in her untimely death, a slow and painful death,” and that J&J could have easily prevented this from occurring.
Her attorneys told the jury that J&J knew its baby powder contained asbestos and refused to pull it off the shelves, saying that this conduct — “allowing a carcinogen to be placed on babies” — was despicable, and asked them to award punitive damages on top of tens of millions of dollars in compensatory damages.
During the trial, which started Jan. 7, the jury heard that 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, according to Satterley.
On Monday, Mike Brown of Nelson Mullins Riley & Scarborough LLP, representing J&J, told the jury during his closing argument that despite the allegations, the plaintiff “can’t show you any science that Johnson’s Baby Powder causes cancer in anyone.”
This came after Brown tried an an unusual line of argument on the jury, telling them he had been out-maneuvered by Leavitt’s attorneys and that they had done a “good job” in blocking testimony from former J&J toxicologist and current consultant and corporate representative John Hopkins.
“There’s something else I’ve got to admit, I got out-lawyered in this case. It is not something you like to admit as a lawyer,” he said.
Wednesday’s verdict is another win for the plaintiffs’ bar in the wave of suits against J&J over its talcum powder, after the pharmaceutical and consumer products giant had recently racked up several favorable results.
Last October and November, J&J convinced juries in New Jersey and California that it wasn’t to blame for two women’s mesothelioma.
And since the calendar has flipped to 2019, the Missouri Supreme Court has sided with J&J in two of its appeals stemming from talc cases in St. Louis City Court.
In January, the state high court granted J&J’s last-minute bid to pause a thirteen-plaintiff talcum powder trial, saying it would consider whether the plaintiffs should be forced to go to trial individually.
And in February, the Missouri Supreme Court granted J&J’s bid to move a talc case out of St. Louis city court and into county court.
In the last trial to make it to a verdict in St. Louis city court, J&J was hit with a record-setting $4.69 billion verdict on claims that its products gave ovarian cancer to 22 women.