Pui Fong v. Imerys Talc America Inc.

Product liability

Los Angeles County

Superior Court Judge David S. Cunningham III

Plaintiff's lawyers: Kazan, McClain, Satterley & Greenwood APLC, Joseph D. Satterley; Ian W.A. Rivamonte; Kiesel Law LLP

Johnson & Johnson has litigated a number of cases alleging its talc products cause mesothelioma, winning some and losing some, but this one was a little different.

Plaintiff Pui Fong, who claimed regular use of Johnson & Johnson's baby powder gave her lung cancer, had also used it while living in Hong Kong.

"That was a big part of our defense case. Because she lived in Hong Kong, there was discussion where the talc came from," said Kimberly O. Branscome, the lead attorney at trial for Johnson & Johnson.

So she focused on how the asbestos the plaintiff may have been exposed to may have come from industrial and construction settings during a time when it was unregulated. In the end, the plaintiff didn't put on evidence regarding the talc sold in Hong Kong, according to Branscome.

She and her fellow Kirkland & Ellis defense team also beat back various plaintiff's experts by digging into their past findings of talc.

"One of the big themes for us is that plaintiff's experts changed their stories depending on what benefited the plaintiff," said Branscome.

For example, the plaintiff's key witness, microscopy expert Dr. William Longo, testified he never tested talc prior to 2016, but Branscome said that turned out to be untrue. Between 2002 and 2010, Longo had tested cosmetic talc and found no asbestos in it, she said.

Jay L. Bhimani

Branscome said many plaintiff's witnesses changed their stories to say asbestos was found in talc after being hired by the plaintiff's attorneys.

An added twist during trial was the U.S. Food and Drug Administration saying it found trace amounts of asbestos in a bottle of the company's baby powder. However, the findings came once jury selection was underway and thus too late to enter in as evidence.

The lead attorney for the plaintiff was Joseph D. Satterley.

The defense's second trial chair was Jay Bhimani.

The defense also provided context for the jury in response to evidence put on by the plaintiff that Johnson & Johnson, according to internal documents, was aware of asbestos in its talc products. Pui Fong v. Imerys Talc America Inc., BC675449 (L.A. Sup. Ct., filed Sep. 11, 2017).

"I wanted the jury to be skeptical when they heard a blanket statement like that. What do the documents say? We emphasized in closings and showed the jury the whole document. When you look at the whole document, it usually doesn't say asbestos. They are talking about different types of minerals," said Branscome.

In the end, the jury found the baby powder was not flawed in its design and therefore Johnson & Johnson wasn't negligent. Branscome said no appeal was filed.

-- Justin Kloczko