Attorneys squabble over alleged misrepresentation during Johnson & Johnson trial

OAKLAND -- Attorneys ended up in a heated exchange Thursday over testimony by a scientist as both sides accused the other of misrepresenting deposition statements made by the plaintiff's mother about where she bought Johnson & Johnson's talc-based products alleged to be contaminated with asbestos.

The defense argued the expert witness had no foundation to speak on the matter by reading an excerpt from the deposition, which the plaintiff's attorneys said was an "inaccurate representation" Johns & Johnson attorneys argued the jury should be allowed to hear the testimony to consider if it was properly established.

"The expert is giving this blunderbuss opinion of, 'I read the testimony ...' when [Susan] Leavitt is the only fact witness who can testify," said Johnson & Johnson attorney Scott J. Richman of Nelson Mullins Riley & Scarborough LLP. "This is speculation as to what and the frequency on which it was used with no factual foundation."

"For counsel to suggest that one, Korean talc is not an issue ... when in fact [Susan Leavitt's] deposition says she purchased it at a local grocery store where they go shopping, that's an inaccurate representation," said plaintiff's attorney Joseph Satterley of Kazan, McClain, Satterley & Greenwood.

Satterley also argued defense attorney Michael A. Brown of Nelson Mullins Riley & Scarborough LLP lied to the jury Wednesday about testimony from epidemiologist David Egilman, prompting Brown to try to explain what happened.

At that point, Alameda County Superior Court Judge Brad Seligman told both sides to settle down.

The judge overruled the objection, explaining he wants to hear scientist William Longo's testimony on the matter and will instruct the jury to consider whether his findings were appropriately established.

The case is the first of over a dozen trials scheduled in 2019 against Johnson & Johnson on similar claims. The company defeated many of those complaints last year but faces roughly 11,700 lawsuits over the safety of its talc-based products.

The trial started in January and is expected to run until the end of February. The plaintiff's attorneys eliminated future expert witness testimony over concern they will not finish in the time allotted.

"I want to tell everyone to start streamlining your cases," Seligman said. Leavitt v. Johnson & Johnson, RG17882401 (Alameda Super. Ct., filed April 14, 2017).

After testifying that 61 percent of Korean talc samples he tested were positive for asbestos, Longo said plaintiff Terry Leavitt was exposed to 16,810 applications of talc-based products over the course of her life.

Leavitt claimed her exposure to the pharmaceutical company's cosmetic talc caused her to develop mesothelioma, a fatal form of lung cancer. She is arguing talc mined from South Korea in the 1960s tested positive for asbestos fibers as has talc from domestic mines.

Of 11 cases alleging Johnson & Johnson's talc-based products are contaminated with asbestos, plaintiffs won three, including a $4.69 billion verdict in July last year. Johnson & Johnson won three others and another five ended in hung juries.

One of the three plaintiffs' wins included a New Jersey jury awarding $117 million in April to a man, also represented by Satterley, who claimed his mesothelioma was caused by Johnson & Johnson's cosmetic talc.

Another New Jersey jury rendered a defense verdict in October, finding a woman's use of Johnson & Johnson baby powder did not cause her mesothelioma.