2nd mistrial in Johnson & Johnson talc case

For the second time in about a week, a Los Angeles County Superior Court talc cancer case has ended in a mistrial, continuing a string of ups and downs in litigation against Johnson & Johnson.

The mistrial was declared Tuesday by Judge Stephen Moloney after jurors remained deadlocked 8-4, one juror short of a delivering a verdict in favor of plaintiff Kirk Von Salzen, who claimed cosmetic use of the company's baby powder contributed to his mesothelioma.

A $25.75 million verdict in May is the pharmaceutical company's sole loss out of five mesothelioma trials heard in the county over the last year. Johnson & Johnson previously won a defense verdict while another trial ended prematurely as a result of the plaintiff's death. That case has not yet been refiled.

Attorneys from plaintiffs' firm Simon Greenstone Panatier PC, which has litigated all the lung cancer cases to go to trial in the county, said they were disappointed but optimistic.

"It tells us that most of the jury has seen the evidence in our favor, that there is asbestos in the talc causing disease," said Stuart Purdy, who tried the case.

Defense attorneys Alexander Calfo and Julia Romano of King & Spalding LLP could not be reached for comment.

In an email, a Johnson & Johnson spokeswoman said the mistrial was a result of a careful consideration of the "real science."

"We look forward to a new trial to present our defense -- which rests on decades of independent, non-litigation driven scientific evaluations, none of which have found that Johnson's Baby Powder contains asbestos," the company said. Kirk Von Salzen v. American International Industries, BC680576 (L.A. Super. Ct., filed Oct. 20, 2017).

PURDY

Both trials were declared hung and revolved around similar scientific issues. Purdy argued the company used testing that wouldn't pick up microscopic particles of asbestos found in the baby powder while Calfo and Romano said the plaintiff used tests not recognized by the International Organization for Standardization.

Over 10,000 cases have been filed nationwide against Johnson & Johnson's baby powder, setting off courtroom debates over the validity of science surrounding talc's toxicity.

The lung cancer cases differ from lawsuits claiming perineal talc use causes ovarian cancer. The latter cases first drew a series of high verdicts, up to $417 million in a Los Angeles case, and other high amounts in St. Louis but were subsequently overturned on procedural and scientific grounds.

Two St. Louis verdicts, one for $55 million and the other for $72 million, were overturned on a lack of standing following the U.S. Supreme Court's decision in Bristol-Myers Squibb last year.

The $417 million Los Angeles case, however, was tossed out after Judge Maren Nelson ruled the jury relied on bogus science.