J&J strikes deal, secures dismissal in 2 talc cases

The first case tried in California since a Johnson & Johnson Co. talc recall after a federal finding of trace asbestos settled for an undisclosed sum Monday in Alameda County.

A separate pending lawsuit against J&J was dismissed Monday in Solano County.

The jury trial in Alameda County began Dec. 2 and settlement negotiations were ongoing throughout the holiday break, according to plaintiffs' counsel Moshe B. Maimon, a partner at Levy Konigsberg LLP.

J&J spokesperson Kim Montagnino issued a statement: "In litigation of every nature, there are one-off situations where settlement is a reasonable alternative. The decision to resolve any particular case in no way changes our overall position that our talc is safe, is asbestos-free and does not cause cancer."

Maimon represented Linda O'Hagan, 61, who contracted mesothelioma and used J&J's baby powder for most of her life, which she alleged contained asbestos. O'Hagan sued J&J, along with co-defendants Cyprus Mines Corp., Rio Tinto Minerals Inc., and Longs Drugstores California Inc. and Safeway Inc. O'Hagan v. Johnson & Johnson, et al., RG19019699 (Alameda Super. Ct., filed May 21, 2019).

O'Hagan's case was the first to go to trial and settle since the company's voluntary recall in October, following a report by the U.S. Food and Drug Administration. The report said tests indicated the presence of sub-trace levels of chrysotile asbestos contamination in samples from a single bottle purchased from an online retailer.

Partner John L. Langdoc and associate Arcelia L. Hurtado of Kazan McClain Satterley & Greenwood APLC rounded out the plaintiffs' team.

Plaintiffs alleged J&J manufactured baby powder from mines in Italy and Scotland, and tests conducted by several labs confirmed trace amounts of asbestos.

The jury was presented with FDA's test results in addition to testimony from plaintiffs' experts who independently tested J&J products.

"We think the FDA's announcement corroborated the testing our own experts did," Maimon said Monday.

J&J faces thousands of lawsuits by plaintiffs across the nation, alleging similar personal injury and wrongful death claims linked to talc and accusing the company of knowing for years that its products were contaminated with asbestos.

Maimon maintained J&J's internal documents further confirmed company officials were aware of the presence of asbestos in its talc products.

J&J's lawyers denied the company's products contained asbestos or caused O'Hagan's cancer. Any lab results that tested positive for asbestos were errors due to contamination, the company maintained. Furthermore, any levels of asbestos detected in the products were extremely low, J&J argued.

Maimon said J&J's arguments run counter to what was found inside the company's internal documents, and there is no safe threshold level for asbestos exposure, especially to children.

Cyprus Mines settled with plaintiffs' prior to trial; Rio Tinto settled Dec. 17, and both Longs and Safeway were dismissed from the case by plaintiffs.

Deborah A. Smith of Lewis Brisbois Bisgaard & Smith LLP confirmed Monday Rio Tinto accepted plaintiffs' dismissal offer in exchange for mutual waiver of fees and costs and no payment of money.

Judge Stephen D. Kaus presided over the trial.

"It's always an honor and privilege to represent people like the O'Hagans, and when a resolution can be reached that they are happy with, we think we've done a good job," Maimon said.

J&J scored another victory Monday in Solano County, where a judge dismissed a pending lawsuit filed by plaintiff Douglas Strobel, who sued the company after contracting mesothelioma in February 2019. Strobel maintained the cancer was caused by exposure to asbestos fibers found in the company's talc powder. Strobel frequently used J&J's baby powder from 1951 to 2014, according to his court documents. Strobel v. Colgate Palmolive Co. et al., FCS052548 (Solano Super. Ct., filed Mar. 21, 2019).

In December, Judge Wendy G. Getty already sided with J&J, who filed a motion for summary judgment. Getty's tentative ruling found Strobel did not present substantial evidence the baby powder contained asbestos during the time periods he used the product.

Some plaintiffs' experts who claimed the powder contained asbestos did not personally test samples, nor were qualified to analyze testing results prepared by others, Getty wrote, thus rendering their testimony as hearsay and not competent evidence.

Samples of the powder that did test positive for asbestos were from products that preceded Strobel's birth, Getty noted, and one that did correlate with his exposure period did not test positive for asbestos.

King & Spalding LLP partner Alexander G. Calfo, who represented J&J in the Solano County case, confirmed Monday the matter was dismissed with prejudice on the grounds set forth by Getty's tentative decision, but did not comment further.