Allen v. Brenntag North America Inc. et al.

Humboldt County

Superior Court Judge Timothy A. Canning

Defense Lawyers: Kimberly O. Branscome, F. Chadwick Morriss, Jay L. Bhimani, Benjamin M. Sadun, Allison K. Ozurovich, Matthew B. Summers, William L. Smith, Kirkland & Ellis LLP

Plaintiff's Lawyers: David C. Greenstone, Simon Greenstone Panatier Bartlett PC

Brenntag North America Inc., the maker of Johnson & Johnson's baby powder, has been fighting off thousands of claims nationwide that its talc contains the carcinogen asbestos.

"The plaintiffs hope to obtain outsize single verdicts to build momentum and increase recovery," said Kimberly O. Branscome of Kirkland & Ellis LLP, who obtained a unanimous defense verdict for the pharmaceutical company in November.

The plaintiff, Carla Allen, contends the baby powder gave her lung cancer, presented five experts and a treating physician over the five-week trial. She sought nearly $40 million plus punitive damages.

Branscome presented evidence that multiple laboratories and the U. S. Food and Drug Administration had tested the product extensively over decades and consistently found it safe. In a pivotal move, she showed jurors that the baby powder the plaintiff tested -- allegedly finding asbestos -- was from unsealed products purchased on eBay.

"During my cross of their testing expert, I brought out that he had asserted it is impossible to refill a Johnson & Johnson bottle without making marks," Branscome said. "I played him and the jury YouTube video showing it's easy to do, and he had to admit he had actually seen that video."

That brought gasps from jurors, Branscome said. "The plaintiff's lawyer objected to the video and the judge overruled him. There is drama about the moment. You see an expert stretch the truth, and you realize that maybe what you have been told is not the whole story."

Branscome also had evidence that Allen may have been exposed to asbestos through her father's workplace. The jury deliberated for a day and a half before finding that although there was asbestos in the powder, it did not cause Allen's cancer. Allen v. Brenntag North America Inc. et al., DR180132 (Humboldt Sup. Ct., filed March 2, 2018).

David C. Greenstone, Allen's lawyer, has litigated several Johnson & Johnson baby powder cases. He called the verdict "disappointing and a little confusing, because they found there was asbestos there."

"This is the fourth case a jury has found asbestos in Johnson & Johnson baby powder. So I don't look at this case as a setback at all, in the grand scheme of things," he added.

There has been no appeal. During the trial, Branscome said she and her team moved to an inn in Eureka for several weeks.

"It was beautiful and quiet up there," she said. "When we got back to L.A., we were in sensory overload for a while. But we think we have slowed the plaintiffs' momentum down and reassured the public there is another side to this story."

-- John Roemer