Law360, Los Angeles (May 4, 2017) – Counsel for a woman who allegedly developed ovarian tumors after using Johnson & Johnson’s talcum powder products on Wednesday urged a Missouri jury during closing arguments to impose a punitive damages award large enough to force the $70 billion company to finally warn consumers about the dangers of talc.
During the 17th day of the fifth trial over an alleged link between talcum powder products and ovarian cancer in St. Louis, Allen Smith of The Smith Law Firm, representing plaintiff Lois Slemp, started off his closing argument by echoing for the jury his opening statement that J&J and co-defendant talc supplier Imerys Talc America Inc. put corporate profits ahead of their responsibility to consumers.
Smith argued that the defendants had to be held responsible not just for failing to warn consumers about the link between between talc and ovarian cancer, but for pressuring regulators like the U.S. Food and Drug Administration to keep the public in the dark.
“These defendants instead of just letting the science dictate how they act, they took a war-like mentality and fought regulation by influencing the FDA and the other agencies that are supposed to police this kind of talc, there’s nothing more reprehensible than that,” he said.
Smith told the jury that Virginia resident Slemp, who used J&J’s baby powder and Shower to Shower products daily for four decades up to her 2012 diagnosis with ovarian tumors, should be awarded $2 million to $5 million in compensatory damages for her suffering.
That amount wouldn’t be sufficient to get J&J to change its behavior, however, Smith added in asking the jury to award punitive damages in an amount of their choosing. Smith said that J&J is a $70 billion company, and noted that one-quarter of one-percent of that value would be $175 million, before asking the jury to award punitive damages large enough for the company to feel them.
“They’re not going to warn unless you all do something about it, and the only way you can do that through this court is through monetary damages,” he said. “So you can see what I’m talking about as far as the numbers and how you can affect their conduct.”
Smith asked the jury to find J&J and one of its units responsible for 90 percent of damages, and Imerys responsible for the remaining 10 percent, noting that it was J&J that sold the products to Slemp, and that Imerys had at least included a warning on its talc since 2006.
Orlando Richmond of Butler Snow LLP, representing J&J, launched into his closing argument by saying his client has been “absolutely vilified,” and specifically referenced Smith’s calling them “reprehensible,” before telling the jury the science just didn’t support Slemp’s claims, and that J&J shouldn’t be scapegoated for her illness.
“I understand that frustration and you do too, when you’re sick, and you’re looking for an answer … you want to be able to point at something or somebody, preferably somebody else,” he said.
Richmond told the jury that Slemp can’t win unless the evidence shows J&J’s talc caused her ovarian tumors, and added that all of her scientific and medical experts couldn’t get there. Richmond noted that Slemp’s treating physicians had both denied that her tumors were caused by talc, and said her key witnesses, like Harvard epidemiologist Daniel Cramer and pathologist John Godleski, were telling a different story in the courtroom than they were in their medical research.
Cramer and Godleski had actually specifically written they were not claiming a causal relationship between ovarian cancer and talc in one of their studies, Richmond told the jury.
Richmond added that Slemp had many other risk factors for cancer, such as a family history filled with cancer diagnoses, her decades of smoking cigarettes, and her morbid obesity.
The jury deliberated until roughly 6 p.m., and then headed home to resume deliberations on Thursday morning.
The trial, with St. Louis Circuit Court Judge Rex Burlison presiding, sees J&J trying to notch another win after first getting hit with verdicts totaling over $200 million in the first several cases about the talc-ovarian cancer link to go to trial in St. Louis.
The first St. Louis talc trial centered on the ovarian cancer death of Jacqueline Fox. In February 2016, jurors awarded Fox’s estate $72 million. In the second trial, plaintiff Gloria Ristesund was awarded $55 million in May. Plaintiff Deborah Giannecchini was awarded $70 million in October. Imerys was found liable only in the Giannecchini trial.
In March, however, J&J broke its losing streak,convincing a St. Louis jury that plaintiff Nora Daniels’ ovarian cancer was not connected to her daily use of talcum powder over several decades.
Further St. Louis talc trials are set for June and July. The first California trial is set for July.
Slemp is represented by Allen R. Smith Jr. of The Smith Law Firm and Ted Meadows, Danielle Mason and David Dearing of Beasley Allen Crow Methvin Portis & Miles PC.
J&J is represented by Orlando Richmond of Butler Snow LLP and Paul Schmidt and Phyllis Jones of Covington & Burling LLP. Imerys is represented by Jane E. Bockus of Dykema Cox Smith and Kenneth Ferguson of Gordon Rees Scully Mansukhani LLP.
The case is Lois Slemp v. Johnson & Johnson et al., case number 1422-CC09326-01, in the 22nd Judicial Circuit Court of Missouri.