Appellate panel raises questions on experts in talc case

The 2nd District Court of Appeal returned to hear oral arguments virtually for the first time Thursday, probing counsel in a $25.75 million Johnson & Johnson mesothelioma case about whether there was asbestos in the company's baby powder and if it contributed to the plaintiff's cancer.

The case is believed to be the first superior court mesothelioma case to be heard on appeal in the country, but differs from the talc ovarian cancer cases that have drawn large verdicts over the past few years.

The three-judge panel hearing Johnson & Johnson's appeal sought to focus argument on specific causation rather than general causation as to whether the pharmaceutical company's recently discontinued talcum product caused plaintiff Joanne Anderson's lung cancer.

Defense attorneys from King & Spalding LLP argued it did not, stating there was no evidence of asbestos in the company's talc. Even if there was, it would not be hazardous to human health, the firm argued.

"Bad science has reared its head again," said partner Paul R. Johnson, arguing the plaintiff was not able to distinguish between asbestos and non-asbestos fibers.

At issue was nearly 200 studies by plaintiff's expert William Longo, who said he determined the company's baby powder contained asbestos. Anderson v. Johnson & Johnson, B292556 (Cal. App. 2nd, filed Sept. 10, 2018).

But the issue surrounding testing methods was quickly raised by the panel, who asked why Johnson & Johnson's counsel never raised methodology issues with the trial judge.

"It bothers me that you're asking us to reverse when trial counsel, in my view, made some inexplicable decision to leave these issues to a jury rather than bringing them to the forefront and getting a motion in limine and having a Sargon hearing," said Justice Brian S. Currey.

Johnson said a motion in limine addressing the issue of suspect expert testimony under Sargon was made but never heard.

"The trial court chose to defer those decisions," said Johnson.

"Isn't it up to counsel to get a ruling on the motion?" asked Currey.

Justice Thomas Willhite Jr. also chimed in.

"We don't consider whatever was presented with respect to motions because you forfeited the issue," he told Johnson. "So the only thing we will review is objections you made and got a ruling on. Let's stop talking about motions in limine and get to the meat in this."

The panel then addressed the issue of specific causation. Johnson repeated that no epidemiological studies showed exposure to cosmetic talc, even if contaminated with asbestos, increases the risk of mesothelioma.

Retired Orange County Superior Court Judge Kim G. Dunning, sitting in pro tem, asked about the defense's expert.

"Because the defense only called a geologist," she said.

"It was the plaintiff's burden to prove," responded Johnson.

Plaintiff's counsel Denyse F. Clancy of Oakland's Kazan, McClain, Satterley & Greenwood said her client used the company's baby powder thousands of times over 30 years.

"We have overwhelming evidence talc contained asbestos, and unrebutted evidence that use of that talc contributed to Ms. Anderson's mesothelioma," said Clancy.

Responding to Dunning's comments that the asbestos fibers amounted to "Lincoln's nose on a penny," Clancy said even such minute amounts of asbestos contributed to the cancer.

Currey asked if the plaintiff would prevail in the case if Longo's study didn't show evidence that the talcum powder contained asbestos.

"Yes," said Clancy. "Plainly, there is substantial evidence that over 30 years she breathed in a level of background that contributed to her mesothelioma."

Aside from Longo's study, Clancy said a bottle owned by Anderson contained asbestos. Talc mined by Johnson & Johnson in Vermont also contained asbestos, Clancy stated.

Further, she said the company advocated the use of the powder to doctors and nurses six months after asbestos was found in its Vermont-mined talc.

Of the $25.75 million verdict, the jury awarded $4 million in punitive damages. Judge Gloria L. White-Brown presided over the trial.

Overall, the remote video argument went smoothly, aside from the scattered sounds of email notifications and occasional muted attorneys. During argument in another case before the panel, an attorney encountered a problem.

"I don't have a camera on my computer," she said, and proceeded to argue telephonically.