Earlier this month, Johnson & Johnson broke their highly expensive losing streak in the suits involving talc and ovarian cancer. The company lost three trials in 2016 prior to this latest; the verdicts from those trials total over $190M.
How did this trial differ from the previous three? J&J changed its legal representation, for one thing. This time, its defense was handled by Bart H. Williams of Proskauer Rose LLP. There was also a change in plaintiff Nora Daniels’ team. This change, and the resulting mistrial, may have had more to do with J&J’s victory than anything else.
The plaintiff’s attorney, Allen Smith of Smith Law Firm suffered a medical emergency shortly after he began his opening statements. Mr. Smith was forced to leave the courtroom for medical attention. Mr. Smith, co-counsel with Ted Meadows of Beasley Allen, was the attorney who handled opening and closing statements during the last three trials.
Mr. Allen’s medical emergency left St. Louis Circuit Court Judge Rex Burlison little choice but to declare a mistrial and order a new jury chosen. Without doing so, it’s possible that the jury could have been prejudiced due to the fact that a key attorney became incapacitated. This is an extraordinary happening, but is one of the reasons a judge may act as Judge Burlison did. Mr. Meadows took Mr. Allen’s place and handled the opening statement.
It should be noted that I am not suggesting that Mr. Meadows did not admirably perform his duties as Ms. Daniels’ attorney. Both he and Beasley Allen are well-respected in the legal field. An anonymous insider not connected to the trial team, stated that the original jury was “great” and that its replacement was a “nightmare” from a plaintiff’s perspective. Despite the fact that jurors are mandated to deliver verdicts based solely upon evidence presented, some jurors come to the box with preconceived notions of justice.
Most often, depending on the strength of those preconceptions, such jurors are eliminated in a process called voir dire. During voir dire, the lawyers for each party are permitted to question prospective jurors regarding biases or preconceived notions about the case or the subject matter. The goal is to empanel the most impartial jury possible. In practice, counsel often uses voir dire to choose those jurors they feel may be most sympathetic to their clients. It is quite possible that the original jury was more plaintiff-friendly than its replacement. That’s a detail upon which we can only speculate.
The case at hand was that of Nora Daniels, a Tennessee resident and user of Johnson & Johnson’s Baby Powder for feminine hygiene purposes. Ms. Daniels’ suit alleged that her 2013 ovarian cancer diagnosis was a result of 36 years of Baby Powder use.
Ms. Daniels’ suit cited several scientific studies linking the use of talc-based powders for feminine hygiene with ovarian cancer. Some of these studies are decades old. Further, the suit alleged that J&J knew of this link and continued to market its Baby Powder and Shower to Shower products for just such use. Ms. Daniels and many other plaintiffs also argue that the company did so without warning consumers of the potential health impact.
Mr. Meadows issued a statement post-verdict expressing his disappointment in the jury’s decision. He said, “We continue to maintain that the association between genital talc usage and ovarian cancer remains an issue of public health and demands that consumers be warned of the specific risks.”
Of course, J&J issued its own statement praising the jury’s verdict. “The jury’s decision is consistent with the science, research, clinical evidence and decades of studies by medical experts around the world that continue to support the safety of cosmetic talc.”
Among other statements made by Johnson & Johnson are these:
- “Among the many studies that have confirmed the safety of talcum powder use are two major prospective cohort studies that included more than 130,000 women and were run for more than 14 years.”
- “No government health authority has concluded that talc can cause ovarian cancer.”
Co-defendant Imerys Talc, J&J’s supplier, thanked the jury in its own statement for “following the science that establishes the safety of talc.”
It remains to be seen how this latest verdict will affect the 2,500 or so lawsuits still pending in St. Louis. One would have thought that three verdicts for the plaintiffs would have established some pattern of liability which could be argued in the other cases. Obviously, given the outcome of Ms. Daniels’ case, that is not entirely correct. The individual fact pattern of each case, as well as the chosen jury, will be the deciding factors.
As to Mr. Allen’s status, all that is available at this time is that his prognosis is good.