FDA asbestos find in talc may reopen lost cases, plaintiffs’ attorneys say

Plaintiffs' attorneys are hoping the U.S. Food and Drug Administration's recent finding of asbestos in Johnson & Johnson baby powder will be elemental to winning the battle over whether talc is linked to cancer and possibly restarting trials their clients have lost.

Litigation has ping-ponged between eye-popping jury verdicts as high as $4.7 billion to strings of defense wins. There are 2,000 talc mesothelioma cases, on top of thousands of lawsuits claiming years of perineal talc use gives women ovarian cancer.

An October report by the FDA said it found asbestos in a bottle of talc that triggered a recall, and now that report may make its way into court.

Plaintiffs' firm Simon Greenstone Panatier PC, which has been litigating lung cancer cases in California, is arguing the report should be the basis for granting new trial motions in two cases it lost this year because the very premise of Johnson & Johnson's argument was no government agency has ever found asbestos in its baby powder.

"Johnson & Johnson's closing argument to the jury centered around a theme that plaintiffs' experts were the only scientists who had ever detected asbestos in Johnson's Baby Powder and any suggestion to the contrary amounted to [allegations of] a 'giant conspiracy' between Johnson & Johnson and the government," Simon Greenstone Panatier shareholder Stuart J. Purdy, attorney for plaintiff George Crudge, wrote in a court filing. Crudge v. Amcord Inc. BC685901 (L.A. Super. Ct., filed Dec. 6, 2017).

Crudge said he used the company's baby powder for 30 years beginning in the early 1960s. The report came out a week after a Los Angeles jury ruled Crudge was not exposed to asbestos.

"This newly discovered evidence is also material to Johnson & Johnson's primary theme in its arguments to the jury that positive asbestos findings in Johnson's Baby Powder are the creation of Plaintiff lawyers and their litigation experts," wrote Purdy.

The motion filed Friday seeking a new trial in the Crudge case will be heard Dec. 17 before Los Angeles County Judge Michele Flurer.

Johnson & Johnson said it commissioned 15 tests on the same bottle of baby powder tested by the FDA and found no asbestos. It said the positive readouts could be due to lab contamination.

"Rigorous and third-party testing confirms there is no asbestos in Johnson's Baby Powder. We stand by the safety of our product," the company said in a statement.

David C. Greenstone, a partner at Simon Greenstone Panatier, said the finding by the FDA is nothing new.

"What is significant is how much Johnson & Johnson focused on the lack of the FDA finding asbestos in their stuff. But it was a huge part of their defense. The FDA has never exonerated them," said Greenstone, who said the FDA has found tremolite in Johnson & Johnson's talc dating back to the 1970s. One form of tremolite is a type of asbestos.

Mark Robinson Jr., who represents thousands of women claiming they developed ovarian cancer due to using baby powder in their perineal area for years, was unable to previously admit asbestos in his cases. The ovarian cancer cases did not address asbestos but other chemicals found in talc. Robinson secured a $417 million verdict in 2017 before a judge rejected the science on which the jury based its decision.

Robinson said he hopes this report will allow him to admit asbestos into his case. "If we get this in, our case is strengthened," said Robinson, of Robinson Calcagnie Inc.