J&J Talc Supplier Challenges Evidence In $117M Verdicts

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Law360 (May 23, 2018, 10:01 PM EDT) — Attorneys sparred Wednesday in New Jersey state court over a defense bid to toss verdicts totaling $117 million in damages against Johnson & Johnson and its talc supplier, Imerys Talc America Inc., on the grounds that a man’s decades-long exposure to the pharmaceutical giant’s asbestos-containing talcum powder contributed to his mesothelioma.

In urging the court to set aside a $37 million in compensatory damages and a combined $80 million in punitive damages awarded to Stephen Lanzo III and his wife, Imerys attorney John C. McMeekin II of Rawle & Henderson LLP said there is no evidence that talc from the business and its predecessor companies contained the toxic mineral.

“The record does not establish that there was asbestos in the talc actually sold to Johnson & Johnson,” McMeekin told Superior Court Judge Ana C. Viscomi during a hearing in her New Brunswick courtroom.

McMeekin noted that an expert for the plaintiffs, materials science and electron microscopy expert William Longo, tested samples of Johnson & Johnson Consumer Inc.’s talc products and found asbestos in some of them, but not others. Therefore, it is not logical to conclude that each bottle of J&J’s baby powder used by Lanzo was contaminated with asbestos, he said.

“But even if that was the assumption, there’s no quantification of the amount of asbestos in there to cause his mesothelioma,” McMeekin added. “On that basis … we believe that there is no basis for the jury to have concluded that Imerys was liable for Mr. Lanzo’s disease.”

One of Lanzo’s attorneys, Denyse F. Clancy of Kazan McClain Satterley & Greenwood, later countered during Wednesday’s hearing that several pieces of evidence showed asbestos in the talc sold by Imerys, and that the company intentionally used testing methods that would not detect the asbestos.

Clancy pointed out how Longo tested baby powder from the early 1990s — when an Imerys predecessor was J&J’s sole talc supplier — finding asbestos in that talc. She said Longo testified that he only tested for a particular type of asbestos and could not detect asbestos in certain bottles based on his methodology, not that those bottles did not contain asbestos.

As for quantifying the amount of asbestos, Clancy said Longo estimated that a bottle of baby powder contained millions of asbestos fibers. Longo testified that when a particular test revealed even one fiber, “that actually means that the bottle itself is filled with millions and millions of fibers,” according to Clancy.

Judge Viscomi did not render a decision Wednesday on Imerys’ motions to overturn the verdicts. At a June 5 hearing, counsel for JJCI is expected to argue its own motions challenging the verdicts.

At the end of the more-than-two-month trial, the jury found on April 5 that JJCI’s products, including its baby powder, contained asbestos, and that Lanzo’s exposure to the toxic mineral in the products between 1972 and 2003 played a substantial role in his contracting mesothelioma.

Jurors awarded compensatory damages of $30 million to Lanzo and $7 million to his wife, Kendra, also a plaintiff in the case. JJCI was ascribed 70 percent of the blame and Imerys was given 30 percent.

On April 11, the jury awarded $55 million in punitive damages against JJCI and $25 million against Imerys after finding that the companies acted in wanton and willful disregard of the Lanzos’ rights.

During Wednesday’s hearing, McMeekin argued in part that the judge improperly declined to instruct the jury with respect to the “sophisticated intermediary” defense that he said Imerys “should have been able to avail itself of.”

Under that theory, Imerys had no duty or ability to warn customers like Lanzo directly and instead relied on JJCI to convey any appropriate warnings to them, according to a brief filed by Imerys. As the sophisticated intermediary, JJCI knew or should have known about the alleged dangers of asbestos in the talc, the brief states.

Clancy argued that New Jersey does not recognize the sophisticated intermediary doctrine and that Imerys has not pointed to any Garden State case stating as much.

“To say that the court, in failing to provide … a sophisticated intermediary instruction, has created a miscarriage of justice … is belied by the law,” Clancy said.

Imerys cited the California Supreme Court’s 2016 decision in Webb v. Special Elec. Co. in support of its argument, but the company does not meet the criteria in that opinion to qualify for the defense, in part because Imerys never warned J&J about the asbestos in the talc and J&J did not provide such a warning to consumers, according to Clancy.

Among other purported trial errors cited by Imerys, McMeekin argued that Judge Viscomi was wrong to instruct jurors that they could draw an adverse inference against the company in connection with certain missing talc samples and transmission electron microscopy grids.

Calling that instruction “unfairly prejudicial” to Imerys, McMeekin said the judge improperly concluded that Imerys was obligated to preserve talc samples going back to 1979 and that the court should have held an evidentiary hearing on the matter. He indicated that not having the samples in question did not deprive the Lanzos of being able to make their case to the jury.

Clancy argued that the judge held an evidentiary hearing and ultimately cited evidence in making findings about the instruction.

McMeekin also challenged the amount of the compensatory damages, saying the $37 million verdict “shocked the conscience.” He claimed that jurors misapprehended their role and what damages were recoverable after the plaintiffs’ counsel improperly discussed Lanzo’s future death in their closing argument.

But Clancy said her co-counsel touched on Lanzo’s anticipated death in response to how counsel for JJCI told the jury that he is “doing well.” She said the award was commensurate with the “unbelievable pain and suffering that occurred in this case.”

The Lanzos are represented by Szaferman Lakind Blumstein & Blader PC, Moshe Maimon of Levy Konigsberg LLP, and Joseph Satterley and Denyse F. Clancy of Kazan McClain Satterley & Greenwood.

JJCI is represented by John C. Garde of McCarter & English LLP, Mike Brock and Kimberly Branscome of Kirkland & Ellis LLP, Jack N. Frost Jr. of Drinker Biddle & Reath LLP, and Kathleen O’Connor, Kelsi Brown Corkran, Alyssa M. Barnard and Matthew L. Bush of Orrick Herrington & Sutcliffe LLP.

Imerys is represented by John C. McMeekin II and Eric K. Falk of Rawle & Henderson LLP, and Scott A. Elder of Alston & Bird LLP.

The case is Lanzo et al. v. Cyprus Amax Minerals Co. et al., case number L-7385-16, in the Superior Court of the State of New Jersey, County of Middlesex.