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St. Louis jury sides with plaintiff in talcum powder case against J&J; $70 million verdict

By Taryn Phaneuf | Oct 28, 2016

Law money 06

ST. LOUIS — A jury has awarded $70 million in damages over a woman’s claims that using Johnson & Johnson’s products containing talc, such as baby powder, contributed to her ovarian cancer.

Deborah Giannecchini, 63, of Modesto, Calif., was diagnosed with stage 4 ovarian cancer about four years ago. Her doctors have said she probably has less than two years to live. She claimed Johnson & Johnson knew about the dangers posed by talc based on decades of documented risk associated with the mineral. Talc is found in the company’s shower-to-shower and baby powder products.

The same claims were brought against the company’s talc supplier, Imerys Talc America. This was the first jury to find Imerys also acted negligently. Additionally, the jury agreed with the plaintiff’s claim that the companies conspired to keep talc products on the market without a warning label attached.

Giannecchini was awarded $575,000 in economic damages, $2 million in non-economic damages, $65 million in punitive damages from Johnson & Johnson and $2.5 million in punitive damages from Imerys.

Courtroom View Network provided live streaming of the trial presided over by Judge Rex Burlison. The jury deliberated three hours Thursday before reaching its decision.

This is the third case to go to trial in St. Louis — and the third in which juries returned big verdicts for the plaintiffs. In May, a jury awarded $55 million to a South Dakota woman who also developed ovarian cancer after decades of using Johnson & Johnson talc-containing products. An Alabama woman was awarded $72 million in February. More than 1,200 other cases are consolidated in Missouri and New Jersey state courts. Others are pending in federal courts.

Johnson & Johnson has said it will appeal the verdict.

In closing arguments Thursday, Giannecchini’s attorneys made emotional appeals to the jury to consider the power they have to hold corporations accountable where regulators have failed. Allen Smith of The Smith Law Firm repeated the plaintiff’s assertion that Johnson & Johnson “rigged” the U.S. Food & Drug Administration and the National Toxicology Program — two agencies in charge of green-lighting consumer products in the United States.

“They’re supposed to be leading the world. That’s your beacon of corporate America,” Smith said. “Seriously? Is that who you want to lead the world?”

He said the women who face cancer diagnoses know the horror of the disease Giannecchini has battled since 2012. But internal documents show the defendants acknowledged that the public doesn’t know about the health issues associated with talc.

“And they won’t warn them?” Smith said.

He asked the jury to return a much higher verdict, totaling $250 million, to force the defendants to change their ways.

“You’re not going to change corporate America unless your verdict is large enough to make them say, ‘We better do something,’” Smith said. “If it’s not substantial, they’re not going to do anything.”

Attorneys representing the defendants refuted the notion that talc causes cancer. Instead, they focused on recounting the myriad scientific studies they’ve relied on for decades, none of which positively link talc with ovarian cancer.

“No one knows what causes ovarian cancer,” David Dukes, an attorney for Johnson & Johnson, told the jury. “They know the science is not on their side. They know that sometimes we don’t trust federal agencies. They know we’re all sympathetic to someone who has cancer. They want to appeal to that dark side of your heart that thinks everybody is a conspirator.

“You do no one a favor by awarding a plaintiff's award to Ms. Giannecchini unless you believe everything has been proven.”

He also argued that not only is talc not associated with ovarian cancer in general, it can’t be responsible for Giannecchini’s specific case. During the trial, an expert testified that talc doesn’t mutate cells, which means it can’t cause cancer. Additionally, no talc particles were found in the plaintiff’s ovaries, Dukes claimed.

While the plaintiffs said a “reasonable” company would warn consumers of the danger, Dukes pointed out that other manufacturers of products containing talc also don’t contain warnings. He said consumer companies understand the potential hazards of slapping a warning label on a product for liability’s sake.

“There’s real harm in slapping a warning on there. Too many warnings can be a hazard because when you over-warn, a certain number of people have a tendency not to read,” he said.

Nancy Erfle of the Portland, Ore., office of Gordon & Rees represented Imerys at the four-weeks-long trial. During closing arguments, Erfle said studies over the years by several cancer research groups have included 180,000 women. None of the conclusions associated talc with ovarian cancer. She and Johnson & Johnson’s attorneys urged the jury to look at “the totality of evidence,” including the various scientific methods that have been used to study talc and its cancer-causing potential.

She insisted the internal documents the plaintiffs used to make their case were taken out of context. Where it looked like Imerys was considering ending the supply of talc because it knew of the dangers, she said the rest of the document shows it was the lingering suspicion not based in science that led to such conversations.

“Talc is safe. Talc should be available. They shouldn’t have stopped selling it,” she said.

She went on to say that a review of scientific literature by the World Health Organization’s International Agency for Research on Cancer categorizes the genital use of products containing talc as “possibly carcinogenic to humans.” That puts it in the same category as 291 other substances, including coffee. She said no one would expect coffee bean suppliers to stop selling their product.

“I’m not asking for a pass,” she said. “I don’t think we need one.”

Ten members of the jury didn’t agree.

In a final closing argument, Ted Meadows of Beasley Allen, who also represented Giannecchini, said the jury was confronted with a simple case that was made to look complicated by the defendants.

“They just spent about two hours trying to make this as complicated as you can make it. We brought you some of the top scientists — people who wrote on this subject before we even went to law school,” he said.

They knew they’d be here, he said, pointing to internal documents in which the defendants were warned that, eventually, they’ll end up in a courtroom or before Congress, where they’ll look like the tobacco companies that knew the dangers of smoking.

“I’m amazed that these people here have doubled down,” he said. “Not the slightest apology. No admittance of even the slightest risk.”

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