California Jury finds Johnson & Johnson Baby Powder Contained Asbestos, was Defective, and its Risks were "Known or Knowable" to the Company
San Pedro, CA. Johnson & Johnson has been waging an all-out campaign to rehabilitate its image in the wake of a December 14, 2018 report by Reuters News finding the company knew for decades its iconic Baby Powder contained asbestos. When the story broke, J&J shares fell 10% in one day, translating into a $40 billion loss.
J&J ran full-page ads in newspapers across the country insisting its talc is safe and beneficial to use. According to the ad, “If we had any reasons to believe our talc was unsafe, it would be off our shelves.” In a video posted on J&J’s website, Chairman and CEO Alex Gorsky added, “Since tests for asbestos in talc were first developed, J&J’s Baby Powder has never contained asbestos.”
For its part, Reuters has stood by its reporting, citing multiple tests from 1971 to the early 2000s finding asbestos in Johnson’s Baby Powder and talc from mines which supplied J&J.
The battle now playing out in the media is the same battle that has been waged over recent years in courtrooms between J&J and users of its talc products who developed mesothelioma, a deadly cancer caused by asbestos.
One such case involved Carla Allen, a 51-year-old Corvallis, Oregon residential real estate professional and mother of a college student and Navy serviceman. Carla was a lifetime user of talc products. Her mother powdered her with Johnson’s Baby Powder as an infant. She received gifts of perfume-scented powders as a child. An avid swimmer, the talcs she used for skin irritation from chlorine became part of her daily routine. Coming full circle, she powdered her own children with Johnson’s Baby Powder as infants.
Carla was diagnosed with pleural mesothelioma in December 2017. She sought treatment near her home in Portland and was advised her cancer was untreatable. She traveled to Los Angeles to treat with Dr. Robert Cameron, thoracic surgeon, surgical oncologist, and director of the Comprehensive Mesothelioma Program at the David Geffen School of Medicine at UCLA. She had a lung-sparing pleurectomy-decortication surgery performed by Dr. Cameron, followed by a combination of chemotherapy, immunotherapy, and cryoablation.
A lawsuit was brought on Carla’s behalf in Eureka, California by the Worthington & Caron, PC and Simon Greenstone Panatier, PC law firms. Defendants included manufacturers and suppliers of the four brands of talc products Carla used throughout her life, including Johnson’s Baby Powder. After settling with some defendants, the case proceeded to trial against J&J.
At trial, J&J’s defense was essentially the same as their response to the Reuters News story. Through the testimony of corporate representatives and highly paid professional expert witnesses, J&J adamantly denied its Baby Powder ever contained asbestos and steadfastly maintained the product is safe.
The above box is the number of the verdicts in the US, from 2016 to present.
Carla’s trial team, led by attorney David Greenstone, presented reams of evidence extracted from J&J through contentious pre-trial discovery in this and prior cases. In fact, some of the key evidence cited in the Reuters report was uncovered by Mr. Greenstone’s firm.
Company documents showed that historic testing of Johnson’s Baby Powder by J&J, its consultants, and numerous other entities, repeatedly revealed that the product contained asbestos. Plaintiff’s experts who conducted their own testing confirmed the presence of asbestos in Johnson’s Baby Powder and its source talc. The types of asbestos found were Chrysotile, Tremolite, and Anthophyllite.
“The biggest challenge in these cases is proving the product contained asbestos,” Mr. Greenstone explained. “J&J has spent decades attacking and attempting to ‘compromise’ any researcher who finds asbestos in their products. They worked with the cosmetics industry to oppose more sensitive asbestos testing methods. They have also resorted to ‘moving the goal line’ by using such a restrictive definition of ‘asbestos’ that whenever asbestos is found in their Baby Powder, they can claim it’s not really ‘asbestos.’ All of this can be extremely confusing for juries, the public, and regulatory agencies.”
At the conclusion of trial on November 30, 2018, the jury agreed that the Johnson’s Baby Powder Carla used contained asbestos. The jury also found that J&J’s iconic Baby Powder contained a “manufacturing defect” and presented “potential risks that were known or knowable” by J&J.
The jury’s findings rank as a major victory in the campaign to compel J&J to acknowledge the truth about its talc products.
The jury ultimately chose not to impose damages. J&J lawyers seized upon latitude in court rulings allowing their experts to speculate about other potential exposures, such as a Johns Manville plant located 20 miles from her father’s workplace. Unfortunately, this tactic proved successful. The jury found, despite Carla’s use of J&J’s defective asbestos-containing product, it did not cause her mesothelioma.
“We didn’t agree with the final outcome,” said attorney Roger Worthington. “But we applaud the jury for rejecting J&J’s legal and marketing defense. By finding that Johnson’s Baby Powder in fact contained asbestos, they sent a clear message that while J&J can fool regulators, they can’t fool the public, at least not for long.”
Asbestos litigation has a long and sordid history of asbestos product manufacturers trying to cover up their misdeeds. We believe it will ultimately be proven that J&J is just the latest example. But for now, the battles continue, in the media, through thoughtful reporting like the Reuters News article, and in the courts, through courageous victims like Carla Allen and the dedicated advocates who represent them.
January 17, 2019
