Law360 (June 6, 2018, 9:30 PM EDT) — Twenty-two women who say they got cancer from longtime use of Johnson & Johnson talcum powder went to trial against the company Wednesday morning in St. Louis, saying J&J willfully ignored evidence that the powder, a daily ritual for millions, was riddled with asbestos.
Wednesday’s openings in St. Louis Circuit Court introduced the cases of 22 women from across the nation, six of whom have died. Their devotion to a powder they believed safe ultimately gave them cancer, each suit claims. Jurors are expected to hear from each victim or a surviving family member over the next few days.
Johnson & Johnson insists the cosmetic-grade talc in Johnson’s Baby Powder and Shower to Shower was and is categorically free of asbestos, and says many top scientific and governmental organizations that have investigated the claimed cancer link have not been persuaded.
But that was in part because J&J worked furiously to keep evidence hidden from view, the women’s famous trial lawyer, Mark Lanier, told the jury in his opening.
At one point in the decades since the link started to be studied, “There’s a mine in Italy that publishes an Italian publication. This is a mine that supplies their baby powder. And the publication says, ‘We’ve got asbestos in talc mines,’” Lanier said. “And the company sends two of their big dogs over to Italy to get in front of that company and say, ‘Please stop this English translation from going out until we can work on it and take out the asbestos section.’”
Lanier also tried to inoculate jurors against expected defenses of J&J lawyer Peter Bicks of Orrick Herrington & Sutcliffe LLP.
“I firmly expect Mr. Bicks will get up here and tell you over and over and show you document after document … that says, look, we’ve tested this every which way to Sunday; we’ve got hundreds and hundreds of tests, and it’s never shown asbestos,” Lanier said.
Crossing his arms, Lanier continued, “They rigged the tests.” Then he shrugged. “They rigged the tests.”
Bicks, when he stood to speak, did indeed fulfill Lanier’s prediction.
“Millions of women who’ve used baby powder have not gotten cancer. And most who have ovarian cancer did not use baby powder,” Bicks said.
“At the end, the question is, is there asbestos in Johnson & Johnson’s products? We believe and have always believed that there isn’t,” Bicks said. “Independent laboratories said there’s no asbestos. Universities and research centers said there’s no asbestos. Government agencies, no asbestos. Johnson & Johnson’s testing, no asbestos. The talc suppliers’ certificates, no asbestos.”
Some plaintiffs fundamentally misapprehended their own cases, too, Bicks said. One had brought her own bottle of baby powder with her to a deposition. When she was asked to read the back of the bottle, she read out, “Pure cornstarch” — not talc.
Every one of the 22 women had a family history of cancer, according to Bicks. A number of the survivors are currently in remission, but at least two couldn’t come to court Wednesday because their current treatments necessitate travel restrictions, Lanier told the jury.
Named plaintiff Gail Ingham has been in remission for 33 years and wrote a book about surviving ovarian cancer, according to Lanier, who, after introducing all of the women with pictures and biographical tidbits, launched into a group of slides filled with colorful metaphors: baby powder was J&J’s “sacred cow”; talc mines are “marbled” with asbestos like steaks; testing should be done on “concentrate” asbestos, like orange juice; asbestos doesn’t reveal itself via “onion properties” like smell, visibility, sneezing or eye-watering; asbestos is “the cockroach of the mineral world.”
“All it does is live forever,” Lanier said. “I don’t know if it’s true, but you hear on the internet that after a nuclear war everything will die except cockroaches. I do know that where you see one cockroach, you probably got a whole bunch more. Both of those facts are true about asbestos.”
Bicks, for his part, used more staid demonstratives, like pictures of the men who founded J&J in the 1800s, and an illustration of a house’s rooms labeled with their potentially asbestos-containing components. In a text box pointing to the kitchen, the slide said, “Walls, backsplashes, ceilings, vinyl floor.”
“Asbestos is everywhere,” Bicks said, showing photos of a bright green shoot pushing out of the ground and clean water pouring into a clear glass. “And their experts will say to you that everybody, you, me, everyone has asbestos in their tissue because of what is in the atmosphere. I don’t think there’ll be any dispute about that.”
Witnesses appearing in this trial will include, for the plaintiffs, materials scientist Bill Longo and mineralogist Dr. Alice Blount and, for J&J, mineral investigator Matthew Sanchez of R.J. Lee Group and gynecological oncologists Cheryl Saenz and Warner Huh.
This latest Missouri trial is expected to last weeks, and it’s only the latest in a flood of talc trials for J&J these past few years.
At this very moment in California, the company is fighting a talc case whose trial began May 29. There, plaintiffs say a 94-year-old woman’s fatal mesothelioma was caused by talc, while the company blames her use of asbestos-laden cigarettes. Elsewhere in California, a jury found just days ago that J&J should pay $4 million in punitive damages and $21.7 million in compensatory damages to another mesothelioma victim.
And in New Jersey, attorneys have been sparring over $117 million in damages against Johnson & Johnson and talc supplier Imerys Talc America Inc. awarded recently.
In South Carolina, a jury said May 25 it could not decide whether J&J was responsible for the mesothelioma that killed a 30-year-old attorney, leading to a mistrial.
Though talc verdicts have often been notoriously large, some are already showing they can’t withstand the appeals process.
In March, Missouri’s high court declined to review an October decision by Missouri’s Eastern District Court of Appeals to overturn a $72 million talc verdict. The appeals court said the trial court lacked personal jurisdiction over J&J in Jacqueline Fox’s suit.
The plaintiffs, including named plaintiff Gail Ingham, are represented by Mark Lanier of Lanier Law Firm.
J&J is represented by Peter Bicks of Orrick Herrington & Sutcliffe LLP.
The case is Ingham v. Johnson & Johnson et al., case number 1522-CC10417, in the 22nd Judicial Circuit of Missouri.