Jury asked to deliver nearly $30 million in talc lung cancer case

A state court jury in Pasadena was asked Thursday to deliver a $29.2 million verdict against Johnson & Johnson for selling baby powder plaintiff's attorneys said increased a woman's exposure to mesothelioma -- the fourth such case in Los Angeles County in less than a year.

The negligence lawsuit is the sixth in the country to head to trial over cosmetic use of the product but differs from the seminal bellwether verdicts in St. Louis and one in Los Angeles over links to perineal talc use and ovarian cancer.

In this case, Texas-based plaintiff's attorneys Simon Greenstone Panatier P.C. alleged the pharmaceutical giant's talc-based baby powder contained asbestos that led to plaintiff Carolyn Weirick's development of lung cancer. Weirick v. Brenntag North America, BC656425 (L.A. Super. Ct., filed April 4, 2017).

Holding up a bottle of the company's powder, Simon Greenstone shareholder Jay Steumke told the jury in Los Angeles County Superior Court Judge Margaret Oldendorf's courtroom that the case was about trust.

"We should be able to trust that the product in this bottle has been properly tested," Steumke said.

"The evidence in the case has shown that we cannot trust that," Steumke said, adding the defendant didn't do the testing it claimed to have done. Closing arguments were viewed via a broadcast from Courtroom View Network.

Steumke asked for $1.2 million in economic damages, $25 million in noneconomic damages, and $3 million in loss of consortium against the company and its supplier, Imerys Talc America Inc., with Johnson & Johnson representing 80 percent of the damages.

Plaintiff's attorneys argued throughout the three-week trial that Johnson & Johnson knew about the toxicity of talc for years, alleging company documents dating back to 1972 showed defendants knew about it but did nothing to protect consumers.

During Thursday's closing arguments, Steumke took jurors through a history of evidence, including a pulmonologist who said talc contained asbestos, and expert scientific analysis that detected asbestos particles. No matter how small, each exposure to asbestos contributed to mesothelioma, he said.

"There are currently no safe levels of asbestos," Steumke said.

Company defense attorneys at Orrick, Herrington & Sutcliffe LLP said the plaintiff's cancer was simply a result of hereditary and outside factors. Christopher Vejnoska, an Orrick partner, told the jury vigorous tests of talc mined from Vermont and Italy turned up no asbestos.

"No one has contradicted them," Vejnoska said of the tests.

"Ms. Weirick's mesothelioma occurred spontaneously and Johnson & Johnson acted responsibly," he said.

A major dispute during the trial centered around the standards of asbestos testing methods. The plaintiff said it used testing that picked up the smallest, most sensitive particles in talc, something it claims the defense did not do. Steumke told jurors defendants created shell tests that would not detect asbestos.

"The testing, the methodology, the nomenclature is a game to these defendants," he said. "It's a game and they're not playing fair."

Vejnoska said talc was checked for toxicity from the mining to "washing" stages and was certified to have no asbestos. He asked jurors to consider why there were no studies showing a link between mesothelioma and those who mined talc, arguing plaintiff's witnesses were the ones who relied on insufficient testing because they used a method not identified by the International Organization for Standardization.

The previous cosmetic baby powder trials in Los Angeles resulted in a defense win, a $25.75 million verdict, and a mistrial. Over the last few years the pharmaceutical giant has been hit with over 500 lawsuits, with the five ovarian cancer verdicts ranging between $55 million to $4.6 billion.

The Los Angeles case is pending appeal after a judge overturned the jury's $417 million verdict on grounds that jurors relied on weak scientific evidence.