Herford v. AT&T Corp.

Product Liability and Personal Injury

Los Angeles County

Superior Court Judge Edward C. Simpson

Defense Lawyers: Morton D. Dubin, Kevin M. Hynes, Orrick, Herrington & Sutcliffe LLP; Alexander G. Calfo, Julia E. Romano, Stacy L. Foster, King & Spalding LLP; Sharla J. Frost, Gwendolyn S. Frost, Tucker Ellis LLP

Plaintiff's Lawyers: Christopher J. Panatier, Jay E. Stuemke, Leah Kagan, Simon Greenstone Panatier Bartlett PC

The plaintiffs' bar hoped talcum powder would be at the center of the next generation of asbestos mass toxic tort litigation. Lawyers for Tina Herford claimed she developed mesothelioma from exposure to asbestos-contaminated talc products, including Johnson & Johnson's Baby Powder and Shower to Shower body powder.

"It's an effort to cross the two types of cases," said Orrick, Herrington & Sutcliffe LLP defense attorney Morton D. Dubin, who emphasized in his closing argument that jurors should trust the scientific evidence that showed the talc was asbestos-free. "J&J is very confident in its position."

The four-week trial ended with a defense verdict for Johnson & Johnson and its talc supplier, Imerys Talc America Inc. AT&T, an early defendant, had been dropped from the litigation. It was the first trial involving claims that Johnson & Johnson's talc products contained asbestos. Herford v. AT&T Corp. et al., BC646315 (L.A. Super. Ct., filed Jan. 10, 2017).

Separately, the company is facing thousands of cases claiming those products can cause ovarian cancer, which have resulted in significant eight- and nine-figure verdicts in multiple jurisdictions. The media attention to those cases have been extensive and has prompted mass plaintiff advertising campaigns, defense lawyers noted.

Added Alexander Calfo, a King & Spalding LLP defense attorney, "There has been a recent evolution in asbestos litigation. In order to expand the number of potentially liable defendants, plaintiffs with mesothelioma, lung cancer and other diseases generally associated with asbestos have begun suing makers of cosmetic talcum powder products, claiming the talc is contaminated with asbestos."

"The verdict in this case was a strong counter to that trend," Calfo said.

The verdict resulted from a strategy aimed at identifying and narrowing the key evidentiary and legal issues the jury would consider. Johnson & Johnson's team obtained a key pretrial ruling excluding all reference to allegations of talcum powder causing ovarian cancer.

The ruling led to an early mistrial when Herford, on the witness stand, spoke of the connection between talc and ovarian cancer. Before a fresh jury, the case boiled down to whether Johnson & Johnson's talc products contained asbestos and whether Herford's use of the products caused her mesothelioma.

"The plaintiffs said the case was about trust and a breach by J&J," Dubin said. "But the real question was which scientific evidence was more trustworthy."

His team included testimony from experts in geology, mineralogy, epidemiology and medical causation. That was enough to persuade the jury that the defendant wasn't liable for the plaintiff's cancer. "We later learned the jury's path was set early in deliberations when they answered no to negligence" on the multi-question jury form, Dubin said.

"I've done this a lot," he said of trying cases. "I try to enter into a state of numbness waiting [for] the jury. It takes a little while to get out of that state and enjoy the result. It was a proud moment, and I hope this sends a strong message to the plaintiff bar."

-- John Roemer