St. Clair County jurors are being asked to award between $10 and $50 million to the estate of a Smithton woman whose ovarian cancer was allegedly caused by using Johnson & Johnson talcum powder products.
Following a two and a half week trial, closing arguments concluded Thursday afternoon in the packed courtroom of Circuit Judge Christopher Kolker.
Plaintiff attorney Leigh O'Dell of Beasley Allen in Montgomery, Ala. asked for between $5 and $25 million on three counts of survival action and three counts of wrongful death on behalf of Betty Driscoll who died in 2016.
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She argued that the plaintiff's burden of proof is "50 percent and a feather." Defense attorney Allison Brown of Skadden Arps in New York disagreed, saying their burden of proof begins at zero.
"They don't start at 50 percent and just add a feather," she said.
O'Dell argued that J&J knew about ovarian cancer risks its talcum powder products posed to women but the company didn't want to risk their "golden egg." O’Dell said J&J’s talcum powder was their most successful product, and they defended it “with all their might.”
"Any threat to success of Johnson & Johnson’s baby powder was a very big deal," O'Dell said.
Brown countered that less than 1 percent of women develop ovarian cancer. She said that with baby powder being one of the most popular products around the world, there would be a much higher percentage of cancer if the talcum powder was a cause.
"Even one case of ovarian cancer is too much ... but where is the epidemic if Johnson's baby powder is causing cancer?" asked defense attorney Michael Brown of Nelson Mullins in Baltimore.
O'Dell said that in response to the scientific studies alleging talcum powder increased the risk of developing ovarian cancer, J&J engaged in a marketing double down by marketing to teens and other audiences for genital hygiene.
"Doubt is their product," O'Dell said. "Create doubt. Cause confusion, so it's not clear."
The lawsuit was brought by Driscoll's niece Colleen Cadagin, who sued J&J in 2018 as executrix of her aunt's estate.
Cadigan alleged that Driscoll’s 40-year use of Baby Powder and Shower to Shower caused her to develop ovarian cancer in February 2015.
O’Dell said Driscoll was in remission from her cancer after undergoing chemotherapy and surgery. However, the cancer returned in February 2016. After an 18-month battle with cancer, Driscoll died at her home two days before her birthday in September 2016. She was 69 years old.
O'Dell said Driscoll was a “silent hero” who enjoyed serving others. Driscoll, who was never married and did not have children, was very involved with her family, O’Dell said. She argued that Driscoll had a very supportive family prior to her death.
Allison Brown refuted those claims, saying that Betty Driscoll's family didn't know she was suffering from ovarian cancer until after she had passed, and that she had been in the hospital for 20 days without any visits, and there was no evidence of her having received phone calls while in the hospital. She said Driscoll was an extremely private person who did not want people in her home.
Allison Brown said ovarian cancer takes 15-20 years to develop, meaning the talcum powder used by Driscoll outside of her body would have had to travel up her genitals and remain for at least 15 years.
Allison Brown also argued that Driscoll's sister Sharon Carney was the only one to claim she saw Driscoll use the powder when she was 12 years old and the decedent was 20 years old. However, she said Carney testified that Driscoll would already be gone when she got up for school in the mornings.
Michael Brown also delivered a portion of the closing arguments for Johnson & Johnson. He was skeptical of Carney's memory from approximately 50 years ago and argued that the plaintiffs failed to provide evidence that Driscoll used Johnson & Johnson talcum powder products at all, let alone up until her cancer diagnosis.
Plaintiff attorney Ted Meadows of Beasley Allen responded that the plaintiffs were truthful in their testimonies when it would have been easier to lie.
"It angers me when Johnson & Johnson sends top-notch lawyers here to call the Driscoll family liars," he said.
The defense counsel objected to the statement, but it was overruled.
The defense counsel also challenged the plaintiff's evidence and expert witnesses. Allison Brown argued that Driscoll's doctors testified that if they had evidence that talcum powder posed an increase risk of developing ovarian cancer, then they would be "shouting from the rooftops." She asked the plaintiff's witnesses if they did anything "to sound the alarm" when they disagreed with reports by the Food and Drug Administration concluding that there was no evidence of causation. She said they did not.
Michael Brown said that of about 16,000 particles found in Driscoll's tissue sample, 16 were talc particles. However, the sample did not show signs of inflammation or heavy metals, which would allegedly show a connection to talcum powder products.
Meadows responded that the 16 talc particles found in the sample represent thousands of particles.
During closing arguments, O'Dell briefly mentioned the testimony of Dr. Susan Nicholson, who is Johnson & Johnson' vice president of women's health. Nicholson was charged with contempt of court on July 26 when she failed to appear for the continuation of cross-examination by the plaintiff's counsel. Kolker struck all previous testimony by her and advised the jury to disregard her comments, saying he did not find her to be a credible witness. O'Dell suggested that Nicholson's testimony was favoring the plaintiff.
"She came here in a private jet to testify on Friday and Johnson & Johnson couldn't bring her back" to complete her testimony the following Monday," O'Dell questioned.
"She went from Miss Vivacious to Miss Defensive to scared to death," Meadows added during his portion of closing arguments.
Brown only mentioned to jurors that a court order bars her from discussing Nicholson's testimony or failure to appear.