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Midday Verdict Media Report 10/29/16
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Is Talc The New Tobacco? $200M J&J Verdicts Show Potential
Oct 28, 2016 | Law360
By Brandon Lowrey
Women alleging Johnson & Johnson's talc baby powder caused their ovarian cancer have racked up a trio of trial victories in St. Louis totaling $200 million, with their attorneys drawing parallels between J&J's conduct and that of defendants in long-running tobacco and asbestos litigation. -
(UPDATE) Talc verdict winner: Money can’t make up for lost health
Oct 28, 2016 | Associated Press
By Jim Salter
When Deborah Giannecchini was diagnosed with stage 4 ovarian cancer four years ago, it didn't make sense. She had no family history, nor did she seem a high risk. -
J&J Planning to Attack Missouri Court, ‘Bad Science,’ for Talc Verdicts
Oct 28, 2016 | Law.com
By Amanda Bronstad
Hit with a third large verdict in a case alleging its baby powder caused a woman’s ovarian cancer, Johnson & Johnson plans to argue on appeal that the problem isn’t its product – it’s a Missouri courtroom and the science behind the lawsuits. -
NBC Nightly News With Lester Holt
Oct 28, 2016 | NBC News
View Clip Here: http://app.criticalmention.com/app/#clip/view/24754419?token=87e9ad0a-166f-4a69-884c-a6991d24780a -
ABC World News Tonight With David Muir
Oct 28, 2016 | ABC News
View Clip Here: http://app.criticalmention.com/app/#clip/view/24754417?token=87e9ad0a-166f-4a69-884c-a6991d24780a -
Nightly Business Report
Oct 28, 2016 | PBS
View Clip Here: http://app.criticalmention.com/app/#clip/view/24755227?token=3f4f6ad0-fa0b-44c7-9bcf-bfd9b1326968
Traditional US Coverage
National Broadcast
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Is Talc The New Tobacco? $200M J&J Verdicts Show Potential
Oct 28, 2016 | Law360
By Brandon Lowrey
Women alleging Johnson & Johnson's talc baby powder caused their ovarian cancer have racked up a trio of trial victories in St. Louis totaling $200 million, with their attorneys drawing parallels between J&J's conduct and that of defendants in long-running tobacco and asbestos litigation.
But while the wins in Missouri state court hint at the possibility of thousands of big cases emerging against J&J and its talc supplier, a judge in New Jersey said the scientific link between talc and ovarian cancer wasn't strong enough, and blocked similar cases from even making it to trial. In both states, the cases are headed to appellate courts. And the stakes are high.
The trials in Missouri are also a proving ground for arguments and themes in such cases. Both the plaintiffs and the defendants — Johnson & Johnson and talc supplier Imerys Talc America Inc. — are refining their cases and developing templates for what could be thousands of trials to come.
The cases involve women's use of J&J's flagship product on their vaginal area. The plaintiffs argue that the talc traveled to their ovaries and accumulated there, causing cancer, and that J&J had long known about this danger but failed to warn consumers. The cases seem to be resonating with jurors so far in Missouri, but a New Jersey state court judge dismissed similar cases, saying the science was too shaky.
J&J said it is appealing all of the Missouri verdicts, and the New Jersey plaintiffs are appealing the dismissal of their cases.
Veteran plaintiffs attorney Elizabeth Cabraser of Lieff Cabraser Heimann & Bernstein LLP, who heads up several of the biggest product liability cases in the nation, told Law360 on Friday that comparisons between talc and tobacco might not be too far off — with some caveats.
"Talc is a widely used product, long-concealed and recently revealed as a health threat," she said. "There is thus some analogy to tobacco there. The injuries are real, and the science may be developing in the direction of stronger causation. These first trial verdicts are early warning signs."
But even if the science were to bear out, a key difference is that talc isn't addictive, she said. Consumers can simply stop using it and turn to safe alternatives like corn starch.
There are still a lot of uncertainties in talc litigation, and plenty of circumstances that aren't entirely analogous.
Tobacco products have had legally mandated health risk warnings on their labels since 1966. Talc powder products, conversely, do not have required warning labels. J&J and Imerys have been contending that labels aren't necessary or even accurate because the science indicating a link is inconclusive at best and probably flat-out wrong. They point to regulatory agencies and other respected institutions that say essentially the same thing.
The American Cancer Society's website, for instance, lists talc as a potential minor risk factor for ovarian cancer. However, it notes that findings have been mixed and there isn't a clear link. Furthermore, it notes the past presence of the proven carcinogen asbestos in many talc products makes it more difficult to determine at present if talc does indeed cause ovarian cancer.
J&J attorney John Beisner of Skadden Arps Slate Meagher & Flom LLP told Law360 on Friday that the recent trial court outcomes in the Missouri cases should be taken with a grain of salt.
"The verdicts this year all came in a jurisdiction where plaintiff lawyers have subjected the jury pool to a high volume of misleading advertising against the product and where scientific evidence standards are not as stringent as other jurisdictions," Beisner said in an emailed statement. "Contrast these proceedings with what happened in New Jersey, where a judge dismissed two cases, concluding that plaintiffs’ proposed evidence that talc causes ovarian cancer was so speculative that it could not be presented to a jury."
In addition, the talc litigation may seem promising for plaintiffs, but it remains in its relative infancy. Talc cases have hit a roadblock in New Jersey state court. There have only been four cases tried thus far, and the three St. Louis verdicts are the only ones that have resulted in monetary awards.
The very first verdict in a talc-ovarian cancer case was the Berg v. Johnson & Johnson case in 2013. A South Dakota federal jury found J&J negligent and liable for Deane Berg's injuries, but declined to award any money. In that case, Berg had been in remission for six years and had little chance of recurrence, her attorney said at the time.
Ted Meadows of Beasley Allen Crow Methvin Portis & Miles PC, who represents talc plaintiffs in Missouri, New Jersey and California, said that the plaintiffs' team has become increasingly emboldened in each case as the big verdicts keep rolling in and new evidence becomes available.
"We used additional documents in each trial, primarily because the defendants try to defend the case a little differently," Meadows said. "When they do that, they open up doors for us to bring in new documents to combat their defenses. It helps us kind of reshape and reformulate the theories on the case and the way we approach them. There are a lot of documents that remain to be used in part because we don't know how they are relevant."
The first St. Louis trial centered on the ovarian cancer death of Jacqueline Fox. In February, jurors awarded Fox's estate $72 million — about double what the estate had asked them for, Meadows said.
In the second trial, plaintiff Gloria Ristesund didn't offer jurors a number at all and merely asked them to choose a number that seemed right. Her attorney, Allen R. Smith of the Talc Litigation Group, declined to suggest to jurors an award amount for her pain and suffering. He only suggested that punitive damages ought to change the companies' behavior and "make them pay" for their conduct.
Jurors in that case awarded her $55 million in May, including $50 million in punitives against J&J and its subsidiary Johnson & Johnson Consumer Inc.
And on Thursday, Smith tested the waters with a much higher figure: $285 million. That bold proposition felt right because of new evidence offered during the trial, Meadows said.
For the first time, the plaintiffs offered testimony from a whistleblower who claimed the company told her to alter adverse event reports submitted by women with ovarian cancer that would have been submitted to regulators. That evidence showed J&J wasn't being straightforward with the Food and Drug Administration, Meadows said.
While jurors didn't grant Smith's wish for more than a quarter of a billion dollars, the $70 million verdict they awarded plaintiff Deborah Giannecchini after a few hours of deliberations was far from a failure. The verdict included $575,000 in economic damages, $2 million in noneconomic damages and $65 million in punitive damages against J&J, plus $2.5 million against Imerys.
That verdict was also the first to find Imerys liable. The first two juries did not award damages against the talc supplier. This time, Meadows said, the trial team went after Imerys more aggressively and did more to work it into the themes of the case.
He added that Thursday's verdict seems encouraging for future cases against Imerys, particularly in California, where he says the law is tougher on suppliers.
A spokesperson for Imerys' legal team told Law360 on Friday that the New Jersey judge's ruling to dismiss the cases based on a lack of foundation was spot-on and the product of a hearing that focused purely on actual, scientific evidence.
"For several months prior to the hearing, the court reviewed approximately 100 treatises relating to talc, cancer and related issues, then heard seven full days of live testimony from scientific and medical experts," the spokesperson said in an email, pointing to the court's conclusion that the scientific methods relied on by the plaintiffs' experts were "flawed" and "litigation-driven rather than objectively and scientifically grounded."
The plaintiffs also failed to show how precisely talc could cause cancer, the spokesperson said.
Plaintiffs attorneys are watching the potentially promising litigation closely, but for some, the jury is still out.
Asked whether he thought talc is the new tobacco or asbestos, longtime personal injury plaintiffs attorney Robert A. Clifford of Clifford Law Offices offered a tongue-in-cheek response: "A resounding 'maybe.'"
Ristesund is represented by Allen R. Smith Jr. of the Talc Litigation Group and Ted G. Meadows of Beasley Allen Law Firm. Fox’s estate is represented by Jere L. Beasley, Ted G. Meadows, David P. Dearing and Danielle Ward Mason of Beasley Allen Law Firm, Stephanie Rados, James G. Onder, Michael J. Quillin and W. Wylie Blair of Onder Shelton O’Leary & Peterson LLC, R. Allen Smith Jr. of The Smith Law Firm, and Timothy W. Porter, Patrick C. Malouf and John T. Givens of Porter & Malouf PA. Giannecchini is represented by R. Allen Smith Jr. of The Smith Law Firm and Ted Meadows of Beasley Allen Crow Methvin Portis & Miles PC.
Johnson & Johnson is represented by Christy D. Jones of Butler Snow LLP and David E. Dukes of Nelson Mullins Riley & Scarborough LLP, among others.
Imrys Talc America Inc. is represented by Nancy M. Erfle of Gordon & Rees LLP.
The cases are Tiffany Hogans et al. v. Johnson & Johnson, case number 1422-CC09012, Gloria Ristesund v. Johnson & Johnson, case number 1422-CC09012-01, and Giannecchini v. Johnson & Johnson et al., case number 1422-CC09012-01, in the 22nd Judicial Circuit of Missouri. -
(UPDATE) Talc verdict winner: Money can’t make up for lost health
Oct 28, 2016 | Associated Press
By Jim Salter
When Deborah Giannecchini was diagnosed with stage 4 ovarian cancer four years ago, it didn't make sense. She had no family history, nor did she seem a high risk.
But months later, when her daughter saw a TV ad for a law firm asking ovarian cancer victims who used talcum powder to come forward, Giannecchini realized a possible link: She had been using Johnson & Johnson's baby powder for most of her life.
"I used it for 45 years, from age 15," Giannecchini, now 63, said Friday. "I was still using it."
On Thursday, a St. Louis jury awarded more than $70 million to Giannecchini, of Modesto, California, wrapping up a monthlong trial. It was the third big verdict awarded by a St. Louis jury against Johnson & Johnson in ovarian cancer lawsuits this year. Combined, the three awards amount to nearly $200 million.
Giannecchini said she was happy with the verdict, but it doesn't make up for the cancer fight and ongoing health problems caused by chemotherapy.
"There's not enough money in the world to pay for fighting the cancer," she said at a news conference arranged by her lawyers.
A spokeswoman for Johnson & Johnson said in a statement that while the company sympathizes with women and their families impacted by ovarian cancer, it will appeal the latest verdict "because we are guided by the science, which supports the safety of Johnson's Baby Powder."
About 2,000 women nationwide have filed similar suits over concerns about health damage caused by extended talcum powder use. Lawyers are reviewing many additional cases, many of them generated by television ads by law firms.
In February, a St. Louis jury awarded $72 million to relatives of an Alabama woman who died of ovarian cancer. Another jury awarded $55 million in May to a South Dakota survivor of the disease.
But two cases in New Jersey were thrown out by a judge who said there wasn't reliable evidence that talc leads to ovarian cancer, an often fatal but relatively rare form of cancer.
Ovarian cancer accounts for about 22,000 of the 1.7 million new cases of cancer expected to be diagnosed in the U.S. this year. Factors known to increase a women's risk of ovarian cancer include age, obesity, use of estrogen therapy after menopause, not having any children, certain genetic mutations and personal or family history of breast or ovarian cancer.
Talc is a mineral that is mined from deposits around the world, including the U.S. The softest of minerals, it's crushed into a white powder. It's been widely used in cosmetics and other personal care products to absorb moisture since at least 1894, when Johnson & Johnson's baby powder was launched. But it's mainly used in a variety of other products, including paint and plastics.
Much research has found no link or a weak one between ovarian cancer and using baby powder for feminine hygiene, and most major health groups have declared talc harmless. Still, the International Agency for Research on Cancer classifies genital use of talc as "possibly carcinogenic."
Attorneys with Onder, Shelton, O'Leary & Peterson, the firm that handled all three St. Louis cases, cited other research that began connecting talcum powder to ovarian cancer in the 1970s. They cite case studies showing that women who regularly use talc on their genital area face up to a 40 percent higher risk of developing ovarian cancer.
The firm has also accused Johnson & Johnson of marketing toward overweight women, blacks and Hispanics — the very same women most at-risk for ovarian cancer.
Wylie Blair, an attorney for Giannecchini, said the firm is working with about 1,700 additional plaintiffs. Another trial is scheduled for February.
Blair said there has been no talk with Johnson & Johnson concerning a class-action settlement.
"Acknowledging that a seminal product that everybody identifies with the company has been causing a horrible disease for all these years is going to be a tough pill to swallow for them," Blair said.
Giannecchini said that as of now there is no evidence of cancer, but she won't know for years if she is free of the disease.
"One day at a time," she said. "Just stay hopeful."
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J&J Planning to Attack Missouri Court, ‘Bad Science,’ for Talc Verdicts
Oct 28, 2016 | Law.com
By Amanda Bronstad
Hit with a third large verdict in a case alleging its baby powder caused a woman’s ovarian cancer, Johnson & Johnson plans to argue on appeal that the problem isn’t its product – it’s a Missouri courtroom and the science behind the lawsuits.
A jury returned the $70 million verdict on Thursday in the 22nd Circuit Court in the city of St. Louis, where two other awards of $72 million and $55 million came out earlier this year. The stinging awards don’t bode well for Johnson & Johnson, which faces lawsuits by more than 1,700 women claiming they got ovarian cancer from prolonged use of its talcum powder products.
But Johnson & Johnson is hardly backing down. In fact, in vowing to appeal Thursday’s verdict, Johnson & Johnson and another defendant, Imerys Talc America Inc., which supplies the talcum powder, continued to attack the science that plaintiffs’ lawyers introduced at trial.
And this time, both companies have a new weapon that could strengthen their case on appeal.
On Sept. 2, Atlantic County Superior Court Judge Nelson Johnson tossed out two upcoming trials on summary judgment after finding that the plaintiffs’ experts —the same who testified in the all three Missouri trials— had gaps in their “made-for-litigation” scientific methods and failed to explain how talcum powder specifically caused ovarian cancer.
In statements following Thursday’s verdict, both companies quickly contrasted the Missouri trial with the New Jersey ruling. They also cited significant lawyer advertising seen in St. Louis. The ad campaign prompted Johnson & Johnson to seek another venue earlier this month on the ground that the juries there would be biased by them.
“The verdicts this year all came in a jurisdiction where plaintiff lawyers have subjected the jury pool to a high volume of misleading advertising against the product and where scientific evidence standards are not as stringent as other jurisdictions,” said Johnson & Johnson attorney John Beisner, leader of the mass torts, insurance and consumer litigation group at Skadden, Arps, Slate, Meagher & Flom. “Contrast these proceedings with what happened in New Jersey, where a judge dismissed two cases, concluding that plaintiffs’ proposed evidence that talc causes ovarian cancer was so speculative that it could not be presented to a jury.”
Plaintiffs lawyers have appealed the ruling in New Jersey and insist they will prevail in the Missouri appeals. And although the scientific evidence was much the same this time around, they were quick to point out a big difference in this month’s trial: Plaintiffs lawyers called a witness at a call center who testified that she was told to alter reports of consumer complaints about Johnson & Johnson’s products.
With that new evidence, plaintiffs attorney Ted Meadows said his team felt confident about asking for $285 million.
“We thought that would support a larger punitive award,” said Meadows, a principal at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama.
But in the end, the jury awarded $65 million in punitive damages – slightly more than that in prior trials.
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NBC Nightly News With Lester Holt
Oct 28, 2016 | NBC News
View Clip Here: http://app.criticalmention.com/app/#clip/view/24754419?token=87e9ad0a-166f-4a69-884c-a6991d24780a
Rough Transcript: we're back now with a massive $70 million verdict over a product millions have used for decades. it was handed down in a lawsuit that claimed johnson & johnson failed to warn the public about a possible link between its popular talcum baby powder, and cancer. now as our stephanie gosk explains, the company faces thousands more legal challenges. >> reporter: johnson's baby powder has been around since 1894. one of the country's most recognizable products. *ad* >> reporter: for the fourth time, a jury has ruled that johnson & johnson failed to inform the public about a possible link between ovarian cancer and its signature product. awarding a california woman diagnosed with stage four ovarian cancer, $70 million in damages. >> it's been a long-fought battle. >> reporter: for decades she used the product for feminine hygiene. >> i hope that johnson & johnson will step up and take responsibility and post a warning on their product that says, this is not as safe as you may think it is. >> reporter: johnson & johnson says, in part, we deeply sympathize with the women and families impacted by ovarian cancer. we will appeal today's verdict because we are guided by the science which supports the safety of johnson's baby powder. the american cancer society says scientific findings have been mixed, adding for any individual woman, if there is an increased risk, the overall increase is likely very small. johnson & johnson is appealing three decisions. but it's succeeded in having two cases in new jersey thrown out by a judge who ruled there's no reliable scientific evidence to support the claims. still, the fight is not over. >> this was a goal for me to help bring awareness, and i think i accomplished that. i'm doing my little part, anyways. >> reporter: her case has helped generate many more. now nearly 2,000 other women like debra gene keeny have filed similar suits.
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ABC World News Tonight With David Muir
Oct 28, 2016 | ABC News
View Clip Here: http://app.criticalmention.com/app/#clip/view/24754417?token=87e9ad0a-166f-4a69-884c-a6991d24780a
Rough Transcript: and a massive payout in a lawsuit involving a common household product. a st. louis jury awarded a woman $70 million after she sued johnson and johnson, alleging that years of using the company's talcum powder had caused ovarian cancer. it is not the first time a jury has ruled against the company. but other cases have been thrown out for a lack of evidence linking talc to the disease. the company plans to appeal the verdict
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Oct 28, 2016 | PBS
View Clip Here: http://app.criticalmention.com/app/#clip/view/24755227?token=3f4f6ad0-fa0b-44c7-9bcf-bfd9b1326968
Rough Transcript: st. louis jury awarded a california woman more than $70 million in her lawsuit against johnson & johnson. the woman alleged that the company's baby powder caused her cancer. and accused j & j of negligent conduct in the making and marketing of the product. earlier this year, two other lawsuits in st. louis ended in jury verdicts with more than $125 million in awards combined. But two similar cases in New Jersey were thrown out.
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