Toxic Talc and Mesothelioma
A historic breakthrough categorized by a leading plaintiffs expert as breathtakingly fantastic occurred in a US courtroom this month when a New Jersey jury handed down the first mesothelioma claimants verdict against Johnson & Johnson to Stephen Lanzo, a 46-year old investment banker, who contracted the fatal asbestos cancer after decades of exposure to the companys talc-based baby powder. On Thursday, April 5, 2018, $30 million was awarded to Mr. Lanzo with a further $7 million to his wife Kendra. Defendant Johnson & Johnson (J&J) Consumer, Inc. was ordered to pay 70% of the compensatory damages with its talc supplier, Imerys Talc America, responsible for the remaining 30%.1
As unbelievable as this was, there was more to come when the jury returned to court to consider the question of punitive damages. Having heard three months of testimony, including discussions of damning internal company documentation, the jurors decided on April 11, 2018 that the defendants outrageous and egregious behaviour warranted further censure. Using the only weapon at their disposal, the jurors ordered that a further $80 million in damages be paid to the claimants.2
Pivotal to the jurors decision-making process was information contained in a treasure trove of formerly sealed and confidential corporate documents revealing the defendants long-term awareness of the hazard posed by asbestos in their product and a consistent failure to adequately warn consumers about the severe health hazard. The refusal by J&J to replace its contaminated talc baby powder with an available and safer corn starch-based alternative because of marketing and litigation concerns was foresencially analysed.3 Commenting on the dramatic outcome of the case, Joe Satterley, the Lanzos co-lead counsel from the firm of Kazan, McClain, Satterley & Greenwood P.C, confirmed the importance of the documentary evidence:
We introduced hundreds of previously secret internal memorandums and the jury made its decision after listening to all the scientists and medical professionals [opinions] that Johnsons Baby Powder was dangerous. The message the jury sent was clear it is time for J&J to stop putting talc in their Baby Powder.
Concurring with his colleague, the other co-lead counsel Moshe Maimon of Levy Konigsberg L.L.P. noted:
We were finally able to show the jury the secret, internal Johnson & Johnson documents proving that Johnson & Johnson knew since the 1960s that the talc used in its baby powder contained asbestos, and that it could cause cancer. On behalf of the Lanzo family, we are proud that the jury has chosen to use its voice to send a message to these companies to put customer safety first.4
One of the documents at the center of this trial was a 1969 memo headed Alternate Domestic Talc Sources; Replying on behalf of J&J to an inquiry received from Mr W. H. Ashton, the author of this text Dr T. M. Thompson wrote:
Since pulmonary diseases, including inflammatory, fibroplastic, and neoplastic types, appear to be on the increase, it would seem to be prudent to limit any possible content of Tremolite in our powder formulations to an absolute minimum. To the best of my knowledge, we have never been faced with any litigation involving either skin or lung penetration by our talc formulations . It is conceivable that a similar situation might eventually arise if it became known that our talc formulations contained any significant amount of Tremolite. Since the usage of these products is so widespread, and the existence of pulmonary disease is increasing, it is not inconceivable that we could become involved in litigation in which pulmonary fibrosis or other changes might be rightfully or wrongly attributed to inhalation of our powder formulations.
Also pivotal to the plaintiffs case was evidence showing how the other defendant Imerys had frustrated efforts by the Food and Drugs Administration, the Occupational Safety and Health Administration and others to regulate talc sales by creating confusion. To explain the companys strategy, in 2008 an Imerys executive created a board game, based on Monopoly, called License to Market, where a skull and cross bones and DANGER were placed next to squares marked Public perception and Litigation. During the court proceedings, an Imerys representative admitted that since the 1960s the company and its predecessor had known at the highest levels that asbestos exposure caused cancer.
According to J&J spokesperson Carol Goodrich, J&J was confident its appeal would overturn the verdict since the jury had been prevented from seeing key evidence, which resulted in the defense filing numerous unsuccessful motions for a mistrial. Goodrich explained the reasons for the defendants optimism as follows:
After suffering multiple losses through court rulings and at trial, plaintiffs attorneys have shifted their strategy and are now alleging that talcum powder is contaminated with asbestos, despite multiple independent, non-litigation-driven scientific evaluations which have found that our baby powder does not contain asbestos.
Unsurprisingly, Attorney Maimon believes the appeal will fail as did the defense's multiple motions for a mistrial:
Over the course of the three month trial we overcame every obstacle thrown at us, from constant motions and motions for re argument, to protracted examinations and cross-examinations of witnesses, to make sure that a just verdict consistent with New Jersey law was achieved.5
With thousands of cancer cases pending against J&J there is enormous interest in the documentation revealed by this litigation. With the vast scope of J&Js international operations, lawyers from foreign jurisdictions will be as interested as US attorneys in the evidence which persuaded the jurors in the Lanzo case to issue such a definitive claimants judgment. It remains to be seen what, if any, effect the contents of these documents will have on the thousands of J&J ovarian cancer cases working their way through the US judicial system.
April 16, 2018
1 Bellon T. J&J, Imerys unit must pay $117 million in N.J. asbestos cancer case. April 11, 2018.
2 Kazan, McClain, Satterley & Greenwood. Jury Returns Historic $117 Million Verdict in Johnson & Johnson Baby Powder Asbestos Mesothelioma Case. April 11, 2018.
3 Feeley J et al. J&J Was Alerted to Risk of Asbestos in Talc in 70s, Files Show. September 22, 2017.
Shapiro N. NJ Jury Hits J&J With $37M Verdict Over Mesothelioma Linked to Baby Powder Use. April 12, 2018.
4 LKs Historic $117 Million Verdict in Johnson & Johnsons Baby Powder Mesothelioma Trial. April 11, 2018.
5 Siegel D. BREAKING: New Jersey Jury Slams Johnson & Johnson, Imerys With $80M Punitive Talc Powder Verdict. April 11, 2018.